SPECIAL NON-CONTRIBUTORY BENEFITS FOR EU MIGRANTS: A TRI-CITY PROJECT

1. SPECIAL NON-CONTRIBUTORY BENEFITS FOR EU MIGRANTS: A TRI-CITY PROJECT The UK Experience with Special Non-Contributory Benefits Sarah St Vincent, Legal Project Manager Adam Weiss, Legal Director 14 May 2012

2. Case Study Focus on a Benefit Income-related Employment and Support Allowance The purpose of this benefit is to provide financial support to people who are unable to work due to mental or physical disability or illness. While they are receiving the benefit, individuals are subjected to medical tests to see if there is work which is suitable for them and, if there is, they are required to work with an adviser to find such work.

3. Case Study 1 – Mr B Mr B’s Story Mr B is from Latvia. He entered the UK in 2004. He worked at various times between 2004 and November 2010. He never registered his work under the UK’s ‘Worker Registration Scheme’. He received income-base Jobseeker’s Allowance at some times while he was unemployed. In late 2010 he contracted multi-drug resistant pulmonary tuberculosis and was at risk of homelessness. He applied for income-related Employment and Support Allowance and was refused on the basis that he was not ‘habitually resident’ in the United Kingdom.

4. Employment and Support Allowance Legislation Employment and Support Allowance Regulations 2008 - Regulation 70 (1) “Person from abroad” means, subject to the following provisions of this regulation, a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland. (2) A claimant must not be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless the claimant 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(1); (b)regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the claimant 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(2); or (d)Article 39 of the Treaty establishing the European Community (in a case where the claimant is a person seeking work in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland). (4) A claimant is not a person from abroad if the claimant 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; (f)a person who is treated as a worker for the purpose of the definition of “qualified person” in regulation 6(1) of the Immigration (European Economic Area) Regulations 2006 pursuant to— (i)regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004(3) (application of the 2006 Regulations in relation to a national of the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia or the Slovak Republic who is an “accession State worker requiring registration”); or (ii)regulation 6 of the Accession (Immigration and Worker Authorisation) Regulations 2006(4) (right of residence of a Bulgarian or Romanian who is an “accession State national subject to worker authorisation”); …

5. European Commission’s View Where the benefits that include a ‘Right to Reside Test’ as eligibility criteria are social security benefits covered by Regulation 1408/71 on the coordination of social security schemes, I think that the Test is… contrary to equal treatment guaranteed by Article 3 of Regulation 1408/71 when it is the reason that a person who is covered by this Regulation is ineligible for the benefit. Letter of 11 February 2010.

6. Arguments Put Forward For Mr B 2 Arguments Made for Mr B, both that he has acquired permanent residence in the UK under Article 16(1) of EU Directive 2004/38 (‘Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there’): It would be disproportionate to discount his time spent in work because of the Worker Registration Scheme. This was unlikely to succeed because of UK case law (the House of Lords Zalewska judgment) and because Mr B’s work history is patchy. Mr B has been self-sufficient under Article 7(1)(b) of the Directive (covering those who ‘have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State’) during the periods when he was working and when he was receiving income-based JSA. A third argument was made that there is a lacuna in the Directive and that the lacuna should be filled directly by Article 21 TFEU. This was done in a past UK case.

7. Determination in Mr B’s Case First-tier Tribunal (Social Entitlement Chamber) He has worked in the UK but this work has not been registered under the WRS. This means, in simple terms, that he cannot have established worker status, let alone retained that status at any time. He cannot qualify as being self-sufficient at any time, because he has not had comprehensive sickness insurance cover in the UK. He has (quite properly) received treatment under the NHS but, in the absence of a provision where these costs could be recovered from Latvia, this does not count as “comprehensive sickness insurance”. Article 21 cannot confer rights which go beyond rights conferred by Directive 2004/38, but this does not apply where it can be shown that there is a lacuna in the Directive…. Part of the problem here is that Mr Butans did not apply to register under the WRS because he did not know that he had to. This, in my experience, is not that unusual…. This does not, though, bring Mr Butans within a lacuna.

8. Comments on How We Can Help Mr B?

9. Case Study Involving income-based Jobseeker’s Allowance Jobseeker’s Allowance Regulations 1996 (as amended by the Social Security (Persons from Abroad) Amendment Regulations 2006) – Regulation 85A (1) “Person from abroad” means, subject to the following provisions of this regulation, a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland. (2) No claimant 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(2); or (b)Article 6 of Council Directive No. 2004/38/EC(3). (4) A claimant is not a person from abroad 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; (f)a person who is an accession State worker requiring registration who is treated as a worker for the purpose of the definition of “qualified person” in regulation 6(1) of the Immigration (European Economic Area) Regulations 2006 pursuant to regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004(4); ….

10. Case Study 2 Mr S’s Story Mr S is from Lithuania. He has been living in the UK since 2004. He has worked on and off, doing mostly seasonal jobs. He didn’t register his work under the Worker Registration Scheme for the first few years. He then registered his later jobs, but never completed twelve months under any of those jobs. He worked in a seasonal job from April 2010 until August 2010. He registered that work in July 2010. After he finished his job, he applied for income-based JSA. He was refused because he was not ‘habitually resident’ in the UK (i.e. no right to reside).

11. Relevant Legislation Article 7(3)(c) of EU Directive 2004/38 For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances… (c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months; Regulation 5 of the UK Accession (Immigration and Worker Registration) Regulations 2004 (2) An accession State worker requiring registration shall be treated as a worker for the purpose of the definition of “qualified person” in regulation 5(1) of the 2000 Regulations only during a period in which he is working in the United Kingdom for an authorised employer. (3) Subject to paragraph (4), regulation 5(2) of the 2000 Regulations shall not apply to an accession State worker requiring registration who ceases to work.

12. European Commission’s View For EU-8 nationals who are subject to the WRS, the WRS determines that those working for an authorised employer have a right to reside for the purpose of the benefits. However, if they end the authorised employment before having completed an uninterrupted period of 12 months, the WRS derogates from Article 7(3) of Directive 2004/38 and provides that, even if they are in a situation of Article 7(3), they do not retain the status of worker, and as a consequences, the right to reside as a worker pursuant to Directive 2004/38. In my view, this derogation from Article 7(3) of Directive 2004/38 is not covered by the transitional arrangements on free movement of workers… because the UK does not de facto restrict access to its labour market which might make such a derogation necessary. Letter of 11 February 2010.

13. Determination The First-tier Tribunal (Immigration and Asylum Chamber) determined last week that Mr S was not entitled to income-based JSA because the tribunal felt unable to set aside the UK legislation and did not have the necessary permission to make a reference to the Court of Justice of the European Union

14. Comments on How We Can Help Mr S?

15. Women and the Right-to-Reside Test I Women are systematically disadvantaged by the right-to-reside test because many are caring for small children, which is not currently recognised as work or self-employment. Recognised human trafficking survivors find that they cannot obtain benefits because they have not been ‘working’ or ‘self-employed’.

16. Human Trafficking and EEA Nationals

17. Women and the Right-to-Reside Test II Survivors of domestic violence have often been prevented from working by abusive partners or may be dependent on showing an abusive partner’s status in order to obtain benefits. Pregnant women face difficulties if they stop working or seeking work.

18. Case Study 3 Ms M’s Story M is from Latvia. She came to the UK in 2005 and worked for some time (without registering). She then went back to Latvia to look after a sick relative. She was trafficked back to the UK in 2006 and sexually exploited in the UK until 2007. She escaped her traffickers with the help of a client with whom she then began living. She applied for income-based JSA shortly before she was recognised as a victim of human trafficking. She was refused JSA. She had a child not long after she was recognised as a victim of trafficking and her child’s young age has prevented her from working. She received Income Support while her permit was valid. Her JSA was refused because of the WRS and because she was not recognised as permanently resident. Her appeal continues.

19. Arguments Being Made for Ms M Similar to Mr S – she worked, registered, briefly before she applied for JSA. Human trafficking survivors have a sui generis legal status and should be treated as exercising residence rights or not subject to the WRS. Proportionality argument: she should be recognised as permanently resident (or at least as exercising Treaty rights) because this is the interpretation most consistent with the Charter.

20. Comments on How We Can Help Ms M?

21. Case Study 4 Ms A’s Story Ms A is a Czech national over 60. She and her partner left the Czech Republic after a house fire destroyed their home and possessions. They were trafficked together for the purposes of identity theft (loans) and labour exploitation. After they discovered what happened, she had a heart attack and a stroke. Because of the stroke she is unable to take up self-employment or work. She has been refused State Pension Credit on the ground that she has no right to reside. She was recognised as a trafficking victim but was not given a permit.

22. What We Are Doing for Ms A Wrote a letter to the Pension Service to which they have so far responded positively (waiting for an assessment of whether she is permanently incapacitated). Prepared but not yet sent a letter to go with an application for a permanent residence card.

23. Comments on How We Can Help Ms A?

24. Case Study 5 Ms R’s Story Ms R is a Polish national in her 60s. She has been living in the UK for 12 years. She originally entered clandestinely and has never worked in accordance with the WRS. She was in a car accident a few years ago and suffered serious fractures to her shoulder and an injury to her leg, meaning that her mobility is limited. In early 2012 she developed life-threatening pneumonia. In spite of her condition the local authority found she had no right to reside and evicted her from council housing. She became street homeless and was taken in by an all-male shelter. She tried to claim State Pension Credit along with other benefits.

25. What We Are Doing for Ms R Trying to set up a meeting with the local authority. Advice being prepared. Concern that the local authority may pressure her to return to Poland (trying to arrange meetings with the Polish Embassy).

26. Comments on How We Can Help Ms R?

27. Case Study 6 Ms H’s Story Ms H is a Hungarian national. She was working in the UK as of mid-2011. She left work due to illness and subsequently had twins. One of the twins is severely disabled and receives the highest rate of Disability Living Allowance (care component). He has difficulty breathing and has to be fed through a tube. Ms H does not believe she will be able to find a suitable carer. Ms H herself is currently receiving Carer’s Allowance to look after him. However, she has been refused Income Support on the ground that she doesn’t have a right to reside.

28. What We Are Doing for Ms H We have sent her advice and sent it to her adviser. Includes a proportionality argument. Includes an argument that looking after a child (particularly a child who is disabled and in respect of whom one is receiving DLA and CA) constitutes work or self-employment.

29. Comments on How We Can Help Ms H?

30. Case Study 4 – Other Problems for Women in the UK Under EU Social Security Law Romanian Sex Workers in London The AIRE Centre has been contacted by two organisations working with Romanian sex workers in a neighbourhood in East London. When they present at the local hospital requesting to terminate a pregnancy, they are told that they must pay for the procedure in advance. Normally British Citizens are not required to pay at all for this procedure. AIRE’s perspective: This is unlawful under UK law (the National Health Service (Charges to Overseas Visitors) Regulations 2011) – they are ‘ordinarily resident’. This is unlawful under Article 4 of EU Regulation 883/04. 3. This is unlawful under Article 24 of EU Directive 2004/38, as these women are probably ‘self-employed’ in the UK.

31. Other Recent UK Case Law Czopand Punakova – whether the Teixeiraand Ibrahim rules apply to self-employed persons and the question of ‘overlap’ MS–about the dating of worker registration certificates HG – about whether family members of British Citizens are exercising residence rights LekpoBozua– about comprehensive sickness insurance SW – spouses of British Citizens, the application of Zambrano and the relationship between comprehensive sickness insurance, NHS care and permanent residence. FV – sellers of the ‘Big Issue’ magazine

32. Contact Details sstvincent@airecentre.org aweiss@airecentre.org