EU Law Issues of Claiming SNCBs in the UK and the Republic of Ireland

1. EU Law Issues of Claiming SNCBs in the UK and the Republic of Ireland AIRE Centre – EU Law on Social Welfare Benefits 7 February 2013

2. Objective for this Session Re-orient your thinking about restrictions on EU migrants accessing benefits in the UK and Ireland, to encourage you to see things from an EU law perspective.

3. SNCBs United Kingdom Ireland Jobseekers Allowance State pension (non-contributory) Widow’s and Widower’s (non-contributory) pensions Disability Allowance Mobility Allowance Blind Pension • State Pension Credit • Income-based Jobseeker’s Allowance • Disability Living Allowance • Employment and Support Allowance, Income Related • (Income Support)

4. Outline of the Session • Discussion of how we normally look at things (domestic law perspective). • Overview of the EU law perspective on SNCBs. • Discussion of actual habitual residence – how an EU law perspective might change access for EU migrants. • Discussion of the right-to-reside test – how an EU law perspective might change access for EU migrants.

5. The Way We Normally See Things (Domestic Law Approach) Two-part test to secure means-tested benefits: Actual habitual residence – rooted in a logic of tying receipt of benefits to the social and economic context of the country in which those benefits are granted. Right to reside – rooted in a logic of restricting the rights of EU migrants to the extent permitted by the Treaty on the Functioning of the European Union, Directive 2004/38 and other provisions of EU law.

6. UK LegislationState Pension Credit Regulations 2002 2.—(1) A person is to be treated as not in Great Britain if, subject to the following provisions of this regulation, he is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland. (2) No person shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless he has a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland other than a right to reside which falls within paragraph (3). (3) A right to reside falls within this paragraph if it is one which exists by virtue of, or in accordance with, one or more of the following— (a) regulation 13 of the Immigration (European Economic Area) Regulations 2006(b); (b) regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the person is— (i) a jobseeker for the purpose of the definition of “qualified person” in regulation 6(1) of those Regulations, or (ii) a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker; (c) Article 6 of Council Directive No. 2004/38/EC(c); or (d) Article 39 of the Treaty establishing the European Community (in a case where the person is seeking work in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland). (4) A person is not to be treated as not in Great Britain if he is— (a) a worker for the purposes of Council Directive No. 2004/38/EC; (b) a self-employed person for the purposes of that Directive; (c) a person who retains a status referred to in sub-paragraph (a) or (b) pursuant to Article 7(3) of that Directive; (d) a person who is a family member of a person referred to in sub-paragraph (a), (b) or (c) within the meaning of Article 2 of that Directive; (e) a person who has a right to reside permanently in the United Kingdom by virtue of Article 17 of that Directive; …

7. The UK Logic in Action HG v Secretary of State for Work and Pensions [2011] UKUT 382 (AAC) (15 September 2011) Polish mother of a dual British-Polish national. No right to reside under Directive 2004/38 following McCarthy (Case C-434/09) Right to reside under the Immigration (European Economic Area) Regulations 2006 before the 2012 amendments which took dual nationals out of the personal scope of the Directive

8. Irish LegislationSocial Welfare Consolidation Act 2005 246.— … (5) Notwithstanding subsections (1) to (4) and subject to subsection (9), a person who does not have a right to reside in the State shall not, for the purposes of this Act, be regarded as being habitually resident in the State. (6) The following persons shall, for the purpose of subsection (5), be taken to have a right to reside in the State: (a) an Irish citizen under the Irish Nationality and Citizenship Acts 1956 to 2004; (b) a person who has a right to enter and reside in the State under the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (S.I. No.656 of 2006), the European Communities (Aliens) Regulations 1977 (S.I. No. 393 of 1977) or the European Communities (Right of Residence for Non- Economically Active Persons) Regulations 1997 (S.I. No. 57 of 1997) …

9. Logic-Game Thinking Marie is French. She can get benefits if she has worker status. She can only have this status if she is engaged in work that is genuine and effective, or has retained this status in one of three ways. She can also get benefits if she is self-employed. She cannot get benefits if she is only exercising a right to reside on the basis of being self-sufficient. She can get some, but not all benefits, if she is exercising a right to reside as a jobseeker (unless she has retained worker status as a jobseeker, in which case she can get all benefits). She can also get benefits if she is the primary carer of a child, but only if the child is in education and she or the child’s other parent) was in work… An advertising executive must schedule the advertising during a particular television show. Seven different consecutive time slots are available for advertisements during a commercial break, and are numbered one through seven in the order that they will be aired. Seven different advertisements – B, C, D, F, H, J, and K – must be aired during the show. Only one advertisement can occupy each time slot. The assignment of the advertisements to the slots is subject to the following restrictions:B and D must occupy consecutive time slots.B must be aired during an earlier time slot than K.D must be aired during a later time slot than H.If H does not occupy the fourth time slot, then F must occupy the fourth time slot.K and J cannot occupy consecutively numbered time slots.1.Which of the following could be a possible list of the advertisements in the order that they are aired?(A) BDFHJCK(B) CJBHDKF(C) HBDFJCK(D) HDBFKJC(E) HJDBFKC2. If advertisement B is assigned to the third time slot, then whichof the following must be true?(A) C is assigned to the sixth time slot.(B) D is assigned to the first time slot.(C) H is assigned to the fourth time slot.(D) J is assigned to the fifth time slot.(E) K is assigned to the seventh time slot.

10. Seven Ways to Get an EEA National Social Assistance Benefits

11. 1. Sign on as a Jobseeker EEA national jobseekers who are ‘actually habitually resident’ and who are actively seeking work and have ‘genuine chances of being engaged’ are eligible for: • Income-based Jobseeker’s Allowance • Housing Benefit • Council Tax Benefit However, they cannot obtain social housing. Also, this will not work for non-exempt A2 nationals. But check to see if they are exempt!

12. 2. Work • An EEA worker, even working part-time (as little as ten hours per week), is eligible for all of the benefits that a British Citizen would get. A2 nationals cannot work unless they are exempt or have authorisation.

13. 3. Get into Self-Employment A2 nationals can be self-employed without any restrictions. Self-employed EEA nationals are eligible for benefits. There is case law suggesting that self-employed people with a very low level of activity are still entitled to benefits. There is also case law establishing that people selling The Big Issue can qualify as self-employed.

14. 4. Demonstrate Retained Worker or Self-Employed Status • This can be done in a number of ways, but only if the person was a worker or self-employed to start: • Show that you were working or self-employed but are ‘temporarily unable to work due to illness or accident’. • Sign on as a jobseeker, after having been made involuntarily unemployed. This won’t work for self-employed people. • Undertake vocational training (must be related to previous employment unless made involuntarily unemployed). This won’t work for self-employed people.

15. 5. Show Permanent Residence • This is worth pursuing for any EEA national who has lived in the UK for five years, has reached pension age or has become permanently incapacitated. • In cases where the person has reached pension age or has become permanently unable to work, seek our advice.

16. 6. Show That You Are a ‘Family Member’ Family members include spouses, civil partners, children or grandchildren under 21, older children or grandchildren who are dependent, dependent relatives in the ascending line. If you are working with someone who has another relative in the UK, there may be a way of applying to be recognised as an ‘other family member’. Remember that the UK has adopted new laws stating that Zambrano parents cannot claim benefits.

17. 7. Show that You are the ‘Primary Carer of the Child-in-Education of a Worker’ This rule is not contained anywhere in domestic law. It comes from the Court of Justice of the EU’s interpretation of the Treaties. When dealing with the benefits authorities, call it the Teixeira and Ibrahim rule. The rule might also apply if the primary carer is the person who worked. It won’t work in the case of A8 nationals who never registered. The rule doesn’t apply where the parent was self-employed rather than employed.

18. EU Law Perspective Article 48 TFEU (ex Article 42 TEC) The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, they shall make arrangements to secure for employed and self- employed migrant workers and their dependants: (a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries; (b) payment of benefits to persons resident in the territories of Member States. Where a member of the Council declares that a draft legislative act referred to in the first subparagraph would affect important aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, the European Council shall, within four months of this suspension, either: (a) refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure; or (b) take no action or request the Commission to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted.

19. EU Law Perspective Regulation 883/04 Article 4: Unless otherwise provided for by this Regulation, persons to whom this Regulation applies shall enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof. Article 6: Unless otherwise provided for by this Regulation, the competent institution of a Member State whose legislation makes: — the acquisition, retention, duration or recovery of the right to benefits, — the coverage by legislation, — or — the access to or the exemption from compulsory, optional continued or voluntary insurance, conditional upon the completion of periods of insurance, employment, self-employment or residence shall, to the extent necessary, take into account periods of insurance, employment, self-employment or residence completed under the legislation of any other Member State as though they were periods completed under the legislation which it applies.

20. EU Law Perspective Regulation 883/04 Article 11: 1.  Persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. Such legislation shall be determined in accordance with this Title. 2.  For the purposes of this Title, persons receiving cash benefits because or as a consequence of their activity as an employed or self-employed person shall be considered to be pursuing the said activity. This shall not apply to invalidity, old-age or survivors' pensions or to pensions in respect of accidents at work or occupational diseases or to sickness benefits in cash covering treatment for an unlimited period. 3.  Subject to Articles 12 to 16: (a) a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State; … (e) any other person to whom subparagraphs (a) to (d) do not apply shall be subject to the legislation of the Member State of residence, without prejudice to other provisions of this Regulation guaranteeing him/her benefits under the legislation of one or more other Member States.

21. EU Law Perspective - SNCBs Regulation 883/04 Recital 16: Within the Community there is in principle no justification for making social security rights dependent on the place of residence of the person concerned; nevertheless, in specific cases, in particular as regards special benefits linked to the economic and social context of the person involved, the place of residence could be taken into account. Article 1(j): ‘residence’ means the place where a person habitually resides Article 2: 1.  This Regulation shall apply to nationals of a Member State, stateless persons and refugees residing in a Member State who are or have been subject to the legislation of one or more Member States, as well as to the members of their families and to their survivors. … Article 70(4): The benefits referred to in paragraph 2 shall be provided exclusively in the Member State in which the persons concerned reside, in accordance with its legislation. Such benefits shall be provided by and at the expense of the institution of the place of residence.

22. Conclusions of the EU Logic • All EU citizens are covered by the Regulation, regardless of economic activity, as long as they have been subject of the social security legislation of a Member State. • Non-discrimination between people and the assimilation and aggregation of events that happen within EU territory are key underlying principles. • One (and only one) EU Member State is responsible for a citizen’s SNCBs at any time – the State of residence – so every EU citizen who is resident in the EU is covered by some State’s SNCB regime – if they are not getting SNCBs, it is because the regime does not cover their situation. • SNCBs are an exception as they cannot be exported – they are closely tied to the social and economic situation in the State of residence.

23. Are we capable of using this logic in the UK? Yes and No. EC v Secretary of State for Work and Pensions [2010] UKUT 95 (AAC) (31 March 2010) Patmalniece v SSWP [2011] UKSC 11 52 [Lord Hope]. [T]he Secretary of State's purpose was to protect the resources of the United Kingdom against resort to benefit, or social tourism by persons who are not economically or socially integrated with this country. This is not because of their nationality or because of where they have come from. It is because of the principle that only those who are economical or socially integrated with the host Member State should have access to its social assistance system. The principle, which I take from the decision in Trojani, is that it is open to Member States to say that economical or social integration is required. A person's nationality does, of course, have a bearing on whether that test can be satisfied. But the justification itself is blind to the person's nationality. The requirement that there must be a right to reside here applies to everyone, irrespective of their nationality. 46.   I have been unable to identify any other provision of European Union law which would assist the appellant with her claim for pension credit to be paid in Spain. 47.   That exhausts consideration of the appellant’s rights in the United Kingdom in relation to her claim for pension credit. 48.   It does, however, occur to me that the appellant would seem now to have acquired permanent resident status in Spain as defined by Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. Article 16 of that Directive introduces the concept of permanent residence which is acquired after five years of lawful residence in a Member State other than that of the person’s nationality. Article 24 of the Directive provides that a person with permanent resident status must be treated in every respect equally with nationals of the host Member State. If there is a top up benefit for pensioners of limited means provided under the Spanish social security system, the appellant should have access to it.

24. Consequences of the EU Logic for ‘Actual’ Habitual Residence - Ireland SOCIAL WELFARE CONSOLIDATION ACT 2005 – SECTION 246 (1) For the purpose of each provision of this Act specified in subsection (3), it shall be presumed, until the contrary is shown, that a person is not habitually resident in the State at the date of the making of the application concerned unless the person has been present in the State or any other part of the Common Travel Area for a continuous period of 2 years ending on that date. … (4) Notwithstanding the presumption in subsection (1), a deciding officer or the Executive, when determining whether a person is habitually resident in the State, shall take into consideration all the circumstances of the case including, in particular, the following: (a) the length and continuity of residence in the State or in any other particular country; (b) the length and purpose of any absence from the State; (c) the nature and pattern of the person’s employment; (d) the person’s main centre of interest; and (e) the future intentions of the person concerned as they appear from all the circumstances.

25. Consequences of the EU Logic for ‘Actual’ Habitual Residence - Ireland The two-year presumption potentially creates a gap in which no Member State is responsible for a citizen who has not left the Union. A mechanism to ensure that an EU citizen who has not been habitually resident outside the territory of the European Union has a State of habitual residence. The Irish authorities should identify the State in which an EU citizen is habitually resident if it is not the Republic of Ireland.

26. Consequences of the EU Logic for ‘Actual’ Habitual Residence - UK The Nessa test and the Swaddling tests. Nessa[1999] UKHL 41 – need for an appreciable period of residence Swaddling (Case C-90/97): 29. The phrase 'the Member State in which they reside' in Article 10a of Regulation No 1408/71 refers to the State in which the persons concerned habitually reside and where the habitual centre of their interests is to be found. In that context, account should be taken in particular of the employed person's family situation; the reasons which have led him to move; the length and continuity of his residence; the fact (where this is the case) that he is in stable employment; and his intention as it appears from all the circumstances …. 30. For the purposes of that assessment, however, the length of residence in the Member State in which payment of the benefit at issue is sought cannot be regarded as an intrinsic element of the concept of residence within the meaning of Article 10a of Regulation No 1408/71.

27. Consequences of the EU Logic for ‘Actual’ Habitual Residence - UK In the AIRE Centre’s experience, Jobcentre Plus and tribunals still apply the appreciable-period-of-residence test to EEA nationals. This creates a potential gap. Example: Portuguese national relocated from Switzerland to the UK to begin a career as a football coach. Jobcentre Plus did not regard him as habitually resident for several months.

28. Consequences of the EU Logic for the Right-to-Reside Test Article 70(4) indicates that SNCBs ‘shall be provided exclusively in the Member State in which the person concerned resides, in accordance with its legislation’. However, Swaddling indicates that the State’s legislation cannot impose a stricter residence-based eligibility criterion than the ‘habitual residence’ test in the Regulation. The Regulation does not mention a right to reside – it applies to every Union citizen who has been subject to at least one State’s social security system. And remember Article 11(3)(e) of the Regulation – if you are economically inactive and nothing else applies, you are subject to the legislation of the State in which you reside.

29. Competing Logics, Example 1: Jobseeker’s Allowance for a Polish National • The Logic Games Approach • The UK did not have the right to derogate from Article 7(3)(c) of Directive 2004/38 under the Accession Treaty. • Our client had acquired permanent residence on the basis of being self-sufficient and/or working (raising complex issues around comprehensive sickness insurance). • The EU approach: Jobseeker’s Allowance is a special non-contributory benefit, this citizen is clearly subject to the UK’s legislation (Article 11(3)(a) & (e) of the Regulation). Polish national came to the UK in 2004 and only worked casual jobs in agriculture in Norfolk. He registered some of these jobs under the UK’s Worker Registration Scheme but not all of them. In early 2010, he started working a seasonal job and registered the job under the Worker’s Registration Scheme. The season ended and he started signing on at Jobcentre Plus for Jobseeker’s Allowance, but was ineligible because he had not completed twelve months of registered employment (see the Accession (Immigration and Worker Registration Regulations) 2004. The case will be heard this Spring in the Upper Tribunal.

30. Competing Logics, Example 2: Saint-Prix • The Logic Games Approach • Article 7(3) of Directive 2004/38 is not exhaustive list of those situations in which a worker retains worker status – it also covers this situation. • Gender discrimination arguments which rely on the fact that only women become pregnant, so this approach constitutes discrimination. • The EU approach: Income Support was a special non-contributory benefit, this citizen is clearly subject to the UK’s legislation (Article 11(3)(a) & (e) of the Regulation). French national came to the UK and studied. She stopped her studies after she became pregnant and took an agency job in a nursery. She stopped working after she was too heavily pregnant to carry out her duties and applied for Income Support. She was refused on the basis that she did not have a right to reside.