Failing on the social dimension: Judicial law-making and student mobility in the EU

National welfare states and free movement rights are in tension in the European Union (EU). Yet, despite potential free-riding dynamics, fully developed welfare states appear remarkably resilient. Two explanations can account for this in the literature: institutional heterogeneity of welfare states leads to differential impact of free movement, and contained compliance with EU legal obligations means that non-discrimination provisions exist mainly on paper. By example of higher education and student financial maintenance, we show that under adverse conditions, free movement rights need exceptions to not undermine national welfare. Moreover, the incapacity of the European Court of Justice to provide clear and stringent guidelines in regards to EU students’ access to student benefits, confronts potential beneficiaries with significant legal uncertainty. This introduces new inequalities among EU students. Our analysis shows the limits of judge-made law in furthering social justice.