96 F. De Witte e­ xclusion that the nation state perpetuates, and serves as an instrument to problematize these processes. Here, instead, I will touch very briefly on two of the most topical ways in which contemporary understandings of free movement and EU citizenship can be understood to produce instances of exclusion – which suggest that there is a need to defend free movement as the heart of EU citizenship. The first example is the ‘emergency brake’ that the UK has managed to secure in its renegotiation on the terms of its EU membership.3 This should eventually allow for the exclusion of EU migrant workers from in-work benefits for (at most) the first four years of their presence in the UK. In the UK, this has been presented as an exercise in justice: it ought to create more opportunities for nationals on the job market, and to prevent payments from the public purse to individuals who have not sufficiently contributed to that same public purse. This argument has been accepted by the heads of state of the other Member States and the Commission despite the absence of empirical corroboration. In fact, the most elaborate studies suggest that the fiscal effects of free movement on the UK are probably positive, and certainly neutral at worst.4 What we see here, then, is the problem if we understand freedom of movement as a luxury rather than an individual right at the heart of EU citizenship: it is prone to scapegoating and politicking, which are the exact forces that it is meant to combat. This is not to say that free movement cannot create pressures that produce exclusionary effects for national citizens (and which EU law ought to be sensitive to). It seems to me, however, first, that those pressures are primarily infrastructural (which cannot be scaled up sufficiently quick to accommodate access for all) and not of a financial nature, and second, that EU law’s understanding of the limits to free movement and non-discrimination offer sufficient guarantees to prevent such practices. The compatibility of the ‘emergency brake’ with the right of free movement is likely to be tested if the UK votes to remain in the EU, and we could place our fate in the Court to protect free movement and non-­ discrimination as being at the heart of the relationship between the individual and the EU. Unfortunately, it appears that the Court itself is not convinced of this. The recent Dano case offers a good example of how the Court is increasingly turning its back on understanding free movement to be a right attached to the ‘fundamental status’ of every EU citizen. In that case, the Court 3 4 See European Council Conclusions (EUCO 1/16) 19-24, 34. Dustmann, C. & T. Frattini (2014),‘The Fiscal Effects of Immigration to the UK’, Economic Journal, 124 (563): F593–F643.