Care on the move
The forgotten angle

The gender care gap in the context of intra-EU mobility, a contemporary matter of concern

Today this is a widespread reality: in the context of intra-EU mobility, the gender care gap, (namely the inequitable distribution of unpaid care work between women and men), is mainly supported by women, thus affecting their ability to work. Indeed, half of women EU citizens, who are moving to an EU host Member State, aren’t active on the labour market due to childcare responsibilities. In such circumstances, it is even more crucial for mothers and women with caring responsibilities to formally secure their situation, notably in terms of residence and social protection.

However, EU free movement rules, one of the most essential pillars of the EU citizenship regime, deny the reality of care, therefore precluding mothers and women to effectively access free movement rights and protections, like residence and equal treatment rights.

EU free movement law’s forgotten angle: What about unpaid care work?

The Citizens Rights Directive 2004/38/EC provides a series of free movement rights and protections for Union citizens and their family members. In that regard, article 7, (1) of the Directive is an important provision, since it consecrates the right of residence for more than three months on an EU host Member State territory for Union citizens holding specific status, all of them revolving around the notion of “work”. However, that notion is not gender neutral for EU law. Indeed, the Court of Justice of the European Union considers unpaid care work to be a non-economic activity that doesn’t qualify as “work” for the purposes of EU law, resulting in serious consequences for all mobile mothers and women with caring responsibilities.

What are the impacts on mothers and women with full time caring responsibilities? 

Mothers and women with full-time caring responsibilities are unable to secure any autonomous and individual residence rights. Additionally they cannot secure other associated rights, such as the equal treatment right, entitling them for instance, to social welfare benefits similar to host state nationals. Both, those with caring responsibilities and those being cared for, like children, are therefore at an increased risk of legal and physical insecurity and precariousness.

Moreover, the Citizens Rights Directive guarantees free movement rights and protections to Union citizens family members, but it shouldn’t be considered as a permanent and stable solution for mothers and women with full-time caring responsibilities. Indeed, it implies that their residency on the EU host Member State territory and all other associated rights are conditional on their relationship with an Union citizen, generally being their husband or partner. That dynamic of dependence is deeply problematic in case of separation or, even dangerous, when the mother or woman is a victim of domestic violence, the conditionality of rights deterring her from escaping such an unsafe environment.

What are the impacts on mothers and women combining an economic activity and unpaid care work?

When there is no legal safety net for mothers and women with full-time caring responsibilities, those of them who are combining an economic activity and unpaid care work may also encounter gaps in the rules. In that regard, mothers on maternity leave can retain their worker status up to twelve months, enabling them to maintain free movement rights and protections.

However, mothers still out of the labour market beyond that time frame, for example during the period their children) are of pre-school age, find themselves in a legal limbo. More generally, under article 7, (3) of the Citizens Rights Directive, a worker can retain his or her status in case of illness or vocational training, but not when providing unpaid care work for a child, even in case of illness of the child, which implies a further discrimination.

Inspiring statements from some of our speakers

The Care on the Move event brought together speakers from various domains of expertise, who all enriched the debate. Here is a brief overview :

• Dr. Nina Miller, Glasgow University, Law School: emphasized that EU free movement isn’t an unconditional right for all Union citizens – mothers and women with caring responsibilities particularly struggle to access free movement rights and protections.
• Dr. Alice Welsh, York University, Law School: observed that EU free movement rules disregard the economic dimension of unpaid care work, since those rules don’t recognize the value of mothers’ and women’s unpaid care work as an economic contribution to their Member States.
• Prof. Charlotte O’Brien, York University, Law School: highlighted the fact that carers lose both ways, in the sense that they are providing care for free, but that they are punished for doing it, since unpaid care work constitutes a real social security risk as it doesn’t enable carers to retain the worker status under the Citizens Rights Directive.
• MEP Maria Noichl (S&D): pointed out that it is impossible for the terms “movement”, “Europe” and “care” to coexist in one sentence, because mobile mothers and women with caring responsibilities can’t, today, fully enjoy EU free movement rights and protections.
• MEP Christine Schneider (EPP): recalled the need for common European and national approaches to instigate real change and implement concrete solutions for care givers, without whom our society couldn’t thrive.
• Dana Bachmann, Head of Unit for Social Protection at DG EMPL, European Commission: drew attention to the multiple topics that unpaid care work raises, namely gender equality, legal issues, (il)legal migration or domestic workers and the necessity, therefore, for structural cooperation and initiatives.
• Marion Finke, Member of Cabinet of Vice-President for Democracy and Demography Dubravka Šuica, European Commission: signaled the importance of investing in skills to have a better care sector and to recognize, care work.
• Laura Kaun, European Women’s Lobby: asked for a revision of the EU Maternity Leave Directive, since mothers are confronted with different maternity leave rules within the EU, making it difficult to “adapt” to all the different systems when they move.
• Jolanta Reingarde, EIGE: put forward that means exist, like EU fundings and programs, in order to tackle contemporary issues, such as climate change or digitalization, but that the care area isn’t addressed with the same amount of resources.
• Annemie Drieskens, COFACE Families: mentioned that, in the framework of unpaid care work, both rights of the care giver and the care receiver are important and must be taken into consideration.
• Assya Kavrakova, European Citizen Action Service (ECAS): revealed that, in their work, they encounter many women and mothers who aren’t able to freely exercise their rights, especially in the case of domestic violence.
• Solène Molard, Eurocities: highlighted the fact that, due to the EU’s restrictive interpretation of the notion of “work”, cities are confronted with many injustices and have sometimes to go around the law, because if they apply the law as it has to be applied theoretically, people would be expelled and wouldn’t receive any social support in many cases.
• Anne-Claire de Liedekerke, President of Make Mothers Matter: underlined that gender equality won’t be achieved without addressing the care and motherhood issue.
• Johanna Schima, Head of EU Delegation, Make Mothers Matter: advocated for the “3Rs” approach with respect to unpaid care work, namely recognition, reduction and redistribution of unpaid care work within families and society in general.

How to close the gender care gap?

Many suggestions, with a view to closing the gender care gap in the context of intra-EU mobility, were formulated during the event, including the following key take-homes :

• It is only thanks to a deep and extensive collaboration between the academic world, policy actors and civil society organizations that concrete and effective solutions for mobile mothers and women with caring responsibilities may be implemented.
• At the EU level, the issue has to be introduced and discussed across different sectors. For example, at the EU Parliament (FEMM, EMPL and LIBE committees); different DGs of the EU Commission (EMPL, JUST), and encouraged among national authorities.
• In order for this problematic to be widely recognized and tackled, more men must be involved in every field, notably policymakers.
• In order for the issue to be widely recognised and tackled, buy-in and support is required specifically from men across all fields, especially in the political arena.
• Civil society groups should continue their integral role in raising awareness for the general public of the possible risks women may encounter when moving between member states.
• There is a real need for more data collection and research of impacts of the EU free movement on mothers and women with caring responsibilities living in an EU host Member State.

Ressources :

Dr Nina Miller, University of Glasgow Law School. Author of “Caring on the Move: The Forgotten Angle. The Gender Care Gap and Intra-EU Mobility” (2022)
https://www.gla.ac.uk/schools/law/staff/ninamillerwestoby/ and event handout
Dr.Alice Welsh, University of York Law School. Author of “A genuine chance of free movement? Clarifying the “reasonable period of time” and residence conditions for jobseekers in G.M.A.”
https://www.york.ac.uk/law/people/welsh/
Professor Charlotte O’Brien, University of York Law School. Author of “Unity in Adversity” : EU Citizenship, Social Justice and the Cautionary Tale of the UK” (Oxford: Hart, 2017).
https://www.york.ac.uk/law/people/obrien/
Professor Anna-Maria Konsta, Aristotle University of Thessaloniki Faculty of Law. Author of “Towards a Right to Care in EU Law: Issues of Legitimacy, Gender and Citizenship” (2017).
https://law.auth.gr/en/teaching_staff/en-konsta-anna-maria/
Dr Adrienne Yong, City University of London Law School. Author of “The Rise and Decline of Fundamental Rights in EU Citizenship” (Hart, 2019).
https://www.city.ac.uk/about/people/academics/adrienne-yong#-book-heading
Professor Nicole Busby, Professor in Human Rights Equality and Justice, University of Glasgow. Author of “A Right to Care. Unpaid Work in European Employment Law” Oxford University Press