Rights of Homeless EU Nationals

1. Rights of Homeless EU Nationals EU Law & Homelessness 16th July 2014 Matt Moriarty, Legal Project Manager & Rebecca Collins, Project Manager

2. Topics We Will Cover General Residence Rights Rights to claim benefits and other forms of social assistance Removal and Extradition Exercising Treaty Rights Any other questions…

3. Be aware:Residence rights and the ability to claim benefits/housing are closely intertwined…but different!

4. Residence Rights

5. A8 Nationals These countries joined the EU in 2004. Their citizens enjoy all the free movement rights (as students, workers, family members, self-sufficient persons, etc.) as other EU nationals except that Member States were allowed to restrict their access to the labour market. Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia

6. A8 Nationals: Work and Self-employment • A8 nationals have alwaysbeen able to take up self-employment without being registered. • Until 1 May 2011, the UK maintained the Workers Registration Scheme. This required A8 workers to register employmentfor the first 12 months. Any changes in employment also needed to be registered. • After 12 months, workers were no longer subject to the WRS and could exercise Treaty rights and claim benefits exactly as if they were any other EU national (e.g. French or German).

7. A8 Nationals: Work and Self-employment • The Worker Registration Scheme ended on 1 May 2011. • Anyone who took up work on or after 1 April 2011 did not need to comply with the scheme. • Anyone whose work has continued after 1 May 2011 no longer needs to show that they were registered in order to show that they are (or were) ‘workers’. • A8 nationals can now sign on as jobseekers at any time as long as they meet the criteria.

8. Q: Is the WRS Still Relevant? • A: Yes, but only in a few circumstances. • These include: • Where an A8 national is trying to show that she or he has been residing legally and continuously in the UK for five years and is therefore a permanent resident. • Where an A8 national’s most recentexercise of Treaty rights was as a worker, and that work ended before 1 May 2011.

9. A2 Nationals • Bulgaria and Romania joined the EU on 1 January 2007. • Until 1 January 2014, most Bulgarian and Romanian nationals needed to have prior authorisation from the UKBA in order to work in the UK. Some were exempt from this requirement, however. • Bulgarians and Romanians could study or take up self-employment without restriction. • Bulgarian and Romanian studentscould work for up to 20 hours per week.

10. A2 Nationals – Exemptions • Some Bulgarians and Romanians were exempt from the worker authorisation requirement. • These included (among others): • Workers who have already performed at least 12 months of authorised work– they’re then treated like any other EEA national • Some EEA family members (including the family members of A2 nationals who are lawfully exercising Treaty rights here) • Permanent residents • Spouses and civil partners of British Citizens and persons settled in the UK • Persons who have leave to remain in the UK under the Immigration Act 1971 and whose leave is not subject to conditions restricting employment • Dual nationals (A2/other EEA or A2/UK)

11. Social Assistance & Benefits

12. Access to Social Assistance Benefits The Benefits: Housing Benefit Council Tax Benefit Income-based Jobseeker’s Allowance Income-related Employment and Support Allowance State Pension Credit Working Tax Credit Child Benefit and Child Tax Credit

13. The Habitual Residence Test The problem will almost always be the right-to-reside test.

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

15. Seven Ways to Get an EEA National Social Assistance Benefits #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. Note the recent restrictions on applications for JSA. Also, from April 2014 newly migrated EEA jobseekers are no longer be eligible for Housing Benefit.

16. Seven Ways to Get an EEA National Social Assistance Benefits #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.

17. Seven Ways to Get an EEA National Social Assistance Benefits #3 Get in to Self Employment 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. A2 nationals can be self-employed without any restrictions.

18. Seven Ways to Get an EEA National Social Assistance Benefits #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.

19. Seven Ways to Get an EEA National Social Assistance Benefits #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.

20. Seven Ways to Get an EEA National Social Assistance Benefits #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’. The UK has adopted new laws stating that Zambranoparents cannot claim benefits. These provisions are being challenged through the Court of Appeal.

21. Seven Ways to Get an EEA National Social Assistance Benefits #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.

22. What Should I Ask When Figuring Out Whether Someone May Have a Right to Reside? What is your nationality? When did you come to the UK? Have you left the UK since then? For how long? (i.e. might you be a permanent resident?) Have you ever worked or been self-employed in the UK? When? How many hours per week? Are you still working/engaging in self-employment? Why did you stop? If you’re an A8 national, was your work prior to 1 May 2011 registered? If you’re an A2 national and are employed, is your work authorised? Might you be exempt from the worker authorisation requirement? Do you have any family members in the UK? Who are they? What are their nationalities? What are they doing (e.g. studying, working)? If you have children, are they in school? Are you their primary carer? Can you sign on as a jobseeker?

23. Housing Benefit EEA nationals are generally eligible for Housing Benefit under the following circumstances: • Those who are workers or in self-employment in the UK • Those who are considered to have a permanent right to reside (i.e. EEA Nationals or family members have resided in the UK for five years, and those that have worked in the UK and reached retirement age) • EEA workers who are temporarily unable to work • EEA nationals who are students or self-sufficient may also be eligible in some circumstances but will have to pass the Habitual Residence Test. • Family members of eligible EEA nationals will usually be eligible • Other EEA nationals are only entitled to benefit if they have a right to reside and are habitually resident. The above criteria also apply to eligibility for Council Tax Benefit.

24. Local Authority Housing Assistance EEA Nationals (including Romanians and Bulgarians from Jan 2014) will be eligible for assistance if they are: • a worker i.e. a person who has actually worked (periods of illness, unemployment and vocational training are still treated as work). Work does not need to be full-time – if they are doing genuine part-time work, or • a worker who has had to stop work because of permanent incapacity and has lived in the UK for more than 2 years, or • a worker who has had to stop work because of permanent incapacity for work resulting from an industrial illness or disease that entitled them to a full pension from a UK institution, or • self-employed, or • a worker or a self-employed person who has retired after having worked in the UK for at least 12 months and has lived in the UK for at least 3 years, or • self-sufficient, or • a student with comprehensive insurance who is self-sufficient, or • someone who has been here lawfully, exercising EU Treaty rights for 5 years continuously.

25. No Recourse to Public Funds There are four categories of people who are excluded from support by the local authority according to immigration law (Schedule 3 Section 54 of the Nationality, Immigration and Asylum Act 2002): nationals of the European Economic Area (other than the UK); people with refugee status from an EEA state; people unlawfully present in the UK (including those whose visas have expired); and failed asylum seekers who have refused to cooperate with removal directions. In such cases the local authority must assess whether withholding or withdrawing support would constitute a breach of the individual's or family's human rights (also see s.17 of the Children Act 1989). The local authority may also conclude that the only support that is necessary to avoid a breach of human rights is the provision of assistance to the individual or family in returning to their country of origin.

26. The New Barriers • Since 1 January 2014 A2 nationals are presumptively entitled to the same rules and treatment as other EEA nationals in the UK (i.e. Romanian and Bulgarian nationals have the right to reside in the UK as a job seeker if they are actively seeking work and have a genuine chance of getting a job). • However… • Only EEA nationals who have been resident in the UK for three months are able to satisfy the new (tougher) Habitual Residence Test, and so access Jobseeker's Allowance. • This new requirement applies to migrants from all EEA countries coming here to look for work - including British nationals returning to the UK after a period living abroad. • There is also a six month cut-off point for Jobseeker's Allowance for EEA nationals who come to the UK to look for work, or become involuntarily unemployed after working here for less than a year. • EEA nationals who worked for at least a year before becoming involuntarily unemployed will only be able to retain worker status for more than six months if they can provide ‘compelling evidence’ that they have a genuine prospect of work.

27. The New Barriers (cont.) The new minimum earnings threshold means that EEA workers who have earned less than £150 per week for the past three months will be subject to a ‘fuller assessment’ of whether their work is genuine and effective when seeking to assert their ‘right to reside’. Even if the EU law test for ‘genuine and effective’ work is applied under the fuller assessment, this is likely to result in significant delays in accessing HB, thus increasing the risk of homelessness for low-income workers. The Housing Benefit (Habitual Residence) Amendment Regulations 2014 (‘the 2014 Regulations), which took effect on 1 April 2014, provide that new EEA claimants of Income Based JSA will not be entitled to Housing Benefit unless they can demonstrate that they have a qualifying right to reside on another basis – for example, through having retained worker status or through being the family member of an EEA national who is a worker or self-employed. Further, EEA nationals cannot rely on a right to reside as a jobseeker in order to access Homelessness Assistance, an allocation of social housing, or emergency support that may be available to UK nationals who are homeless. This means that new migrants to the UK have lost a significant safety-net against homelessness.

28. The New Barriers in practice • We are hearing anecdotally that decision makers in some parts of the UK are interpreting the 6 month ‘cut-off’ for JSA narrowly – so in order to show genuine chance of work you actually have to have a job offer in the future, evidenced by a letter from a prospective employer. • The impact of removing ‘passporting’ to HB hasn’t filtered through. However, many of the AIRE Centre’s clients – e.g. victims of domestic violence – will face an increased risk of homelessness when they are no longer able to ‘derive’ a right from a family member. • The DWP has already accepted, in their ‘Equality Analysis’, that the changes to HB are likely to have a disproportionate impact on: • EEA nationals aged under 35; • those from minority ethnic groups; • those who are single; and • women, who are ‘more likely to have primary childcare responsibilities, which may act as a barrier to moving into work’. This, in turn, may lead to a higher risk of homelessness.

29. The New Barriers & Saint Prix Prior to the judgment of the Court of Justice of the European Union (‘CJEU’) in the case of C-507/12 Saint Prix, EEA national women who stopped work in the latter stages of pregnancy were not recognised as having either worker status or retained worker status in the UK. Previously they could, at least, claim both IB-JSA and HB while they were still physically able to work. Now, even if they register as a jobseeker as soon as they are able to return to work after giving birth, they will not be able to claim HB. This will place them at greater risk of homelessness – a risk exacerbated by the fact female single mothers take longer to find work. However, the recent judgment of the CJEU should hopefully mean that most women in these circumstances will retain worker status and presumptively remain entitled to receive HB when they return to the job market…

30. The New Barriers & Saint Prix • The CJEU found in C-507/12 Saint Prix(on 19 June 2014) that: • ‘Article 45 TFEU must be interpreted as meaning that a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth retains the status of ‘worker’, within the meaning of that article, provided she returns to work or finds another job within a reasonable period after the birth of her child.’ • The Court also reaffirmed the primacy of the TFEU over Directive 2004/38, noting that: • ’31. … it does not follow from either Article 7 of Directive 2004/38, considered as a whole, or from the other provisions of that directive, that, in such circumstances, a citizen of the Union who does not fulfil the conditions laid down in that article is, therefore, systematically deprived of the status of ‘worker’, within the meaning of Article 45 TFEU.’

31. Proportionality and the EU Charter The principles of proportionality, equal treatment and non-discrimination are binding under EU law. The application of the EU Charter should also be relevant to ‘right to reside’ cases. Should decision makers and judges now be asking whether granting an application which doesn’t fall squarely within the relevant regulations would place an unreasonable burden on the UK benefits system? (As per Case C‑140/12 Pensionsversicherungsanstalt v Peter Brey, with ref. to Saint Prix.)

32. Alternative support • The Nationality and Asylum Act 2002 excludes EEA nationals who have reached the age of majority from accessing assistance under the National Assistance Act 1948 and the Children Act 1989 - unless it would breach their rights under the European Convention of Human Rights or EU law to refuse them such assistance. • EEA nationals who are refused HB and at risk of homelessness or removal from the UK may increasingly be forced to rely on their convention and/or EU law rights to seek to compel Local Authorities to provide assistance. In addition to Article 8 of the ECHR, the EU Charter of Fundamental Rights includes: • Article 1 (right to human dignity); • Article 7 (right to respect for private and family life); • Article 15 (including the right to seek work); and • Article 34 (right to social security and social assistance). • However, in the AIRE Centre’s experience, where families face homelessness, Local Authorities often respond by refusing parents support, whilst threatening to take children into care.

33. Removal and Extradition

34. Public Policy and Public Security NOTE: The UKBA will ‘consider’ for deportation any EEA national who has been sentenced to more than 24 months, or more than 12 months for a violent offence or drugs offence.

35. Removal of Homeless EEA Nationals While EEA nationals make up about 10% of London’s population, they make up about a third of London’s street homeless. Between 2008 and 2012, the number of enforced removals of EEA nationals from the UK nearly tripled, from 642 to 1,726. Under Regulation 19(3)(a) of Immigration (European Economic Area) Regulations 2006, homeless EEA nationals are often treated as not having a ‘right to reside’ (i.e. not exercising Treaty rights) - and may be at risk of removal. You may come across a homeless EEA national who has received a letter (often in her language) from the Home Office saying that they want to interview her to see if she is exercising Treaty rights…

36. Removal of Homeless EEA Nationals (cont.) The First-tier Tribunal has previously accepted that removing an economically inactive Czech national who had resided in the UK for five years and removing a Polish national Big Issue seller who had resided in the UK for three years would be disproportionate. In the latter case, Sliwa v SSHD (appeal number IA/20213/2012), Immigration Judge Martins noted that: ‘once returned to Poland it would simply be a matter of him gathering enough funds to pay for a return flight or bus ticket to the UK... His expulsion achieves no legitimate aim even if it is viewed as being in pursuit of such an aim, it is disproportionate to whatever that aim may be’. NB: The UK authorities did not seek permission to take either appeal further.

37. Detention of Homeless EEA Nationals EU law explicitly prohibits the detention of European Union citizens unless their detention is necessary: ‘A detention order can only be based on an express derogating provision, such as Article 8 of Directive 73/148, which allows Member States to place restrictions on the right of residence of nationals of other Member States in so far as such restrictions are justified on grounds of public policy, public security or public health’. [Case C-215/03 Oulane v Minister voor Vreemdelingenzaken en Integratie, § 41; emphasis added] In light of this, it is unclear how the UK authorities could ever detain an EEA national in order to carry out a forced removal solely on the grounds that (s)he is not exercising residence rights.

38. Extradition Many EEA nationals (and others) in the UK who have been charged with or convicted of crimes in other EU Member States are threatened with extradition. However, if the person has established a private or family life in the UK, this should be challenged: see HH v Deputy Prosecutor of the Italian Republic (UK Supreme Court, 2012). This is especially true if the offence was not a ‘grave’ one.

39. Exercising Treaty Rights

40. Work only needs to be ‘genuine and effective’. Wages do not need to meet the minimum subsistence leveland the work does not necessarily have to be ‘legal’. • Part-time work or self-employment (generally at least 10 hours per week, although sometimes less) counts. • ECJ in Genc: ‘The essential feature of an employment relationship is … that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.’ • The essence of self-employment is that the person is not working under the direction of another. That person could (in most cases) sub-contract the work to someone else or re-negotiate the terms of the relationship at any time. • Self-employment does notneed to be registered with HMRC in order to count for the purposes of EU free movement law. What’s Work? What’s Self-Employment? 40

41. Can Sex Work Count as Self-Employment? Yes, it can. The ECJ found in a 2001 case called Jany and others that if the UK allows its own citizens to work as self-employed sex workers (which it does), then it must recognise EEA nationals as self-employed in the same way. Remember that according to Tribunal case law, registration with HMRC is not necessarily required for an EEA national to be exercising Treaty rights as a self-employed person.

42. Retaining ‘Worker’ Status • ‘Worker’ status can be retained if the worker is: • Temporarily unable to work due to illness or accident; • In duly recorded involuntary unemployment after working in the UK, and has signed on as a jobseeker; • Involuntarily unemployed and has embarked on vocational training; or • Has voluntarily ceased working and has embarked on vocational training that is related to his/her previous employment. A person can only retain ‘self-employed’ status if she is temporarily unable to engage in her self-employment activity due to illness or accident.

43. Permanent Residence • Any continuous five-year exercise of Treaty rights will be sufficient. • The person can have been absent from the UK for periods of up to six months, or longer if there were especially compelling reasons such as illness or pregnancy (see Article 16 of Directive 2004/38). • It should be possible to combine different activities (e.g. working for three years, EEA family member for one year, self-employed for one year). • Some EEA nationals can acquire permanent residence sooner – for example, if they’re working and become permanently unable to work or reach pension age while working. (Article 17 of Directive 2004/38) • … Ask AIRE if this comes up.

44. Permanent Residence (cont.) • Following the recent decision of the Upper Tribunal in JovitaOjo, the notion of ‘absence’ currently applies to periods spent not exercising Treaty rights whilst in the UK as well as physical absence from the UK. • Permanent residence is only lost after two continuous years of absence from the UK under Article 16. (Arguably, it should not even be lost after longer absences under Article 17.) • The right is automatic – the EEA national doesn’t need to obtain any kind of document from the Home Office, although s/he can apply for one … and, particularly in the case of vulnerable people, probably should!

45. Homelessness and self-sufficiency • Following the recent decision of Judge Ward in VP v Secretary for Works and Pensions (JSA) [2014] UKUT 32 (AAC) (23 January 2014), it will be very difficult to argue that periods of homelessness ‘count’ as self-sufficiency for the purpose of acquiring permanent residence: • 84. … In my view the question, whenever asked, remains: was the person at the beginning of year 1 – and in principle at any other times in the period – able to show sufficient resources to meet the test? I do not accept that a person who could not meet the test on that basis could simply lie low for five years and through a combination of luck and an unusually frugal lifestyle avoid being any kind of burden to the social assistance system and then argue that they have retrospectively shown that they had throughout had the resources to be self-sufficient…

46. Family Members: Spouses, Civil Partners, Children and Dependants • As long as the EEA national is exercising Treaty rights in the UK, the following family members have a right to live and work here: • Spouses and civil partners, including those of the same sex • Direct descendants under age 21, including stepchildren and step-grandchildren • Other direct descendants who are dependent on the EEA national or the spouse/civil partner (e.g. children, grandchildren) • Dependent direct relatives in the ascending line (e.g. parents), including relatives of the spouse/partner

47. Family Members – Retaining a Right to Reside (Death or Departure) • Article 12(2) of Directive 2004/38: The family members of an EEA national who has died will retain a right to reside in the UK if: • They are not EEA nationals themselves, and • They have lived in the UK as EEA family members for at least one year before the EEA national died. • Article 12(3): The family member of an EEA national who has left the UK, or who has died, will retain a right to reside in the UK if: • The family member is the EEA national’s child, and • The child is enrolled in school in the UK for the purpose of studying there. • OR • The family member has actual custody of the EEA national’s child, and • The child is enrolled in school in the UK for the purpose of studying there. • For Article 12(3), the family member’s nationality doesn’t matter, and the right lasts until the child is no longer enrolled in school for the purpose of studying.

48. Retaining a Right to Reside (Divorce or Termination of Civil Partnership) Article 13 of Directive 2004/38 provides that the spouse/civil partner of an EEA national exercising treaty rights can retain a right to reside in the UK following a divorce, annulment or termination of the civil partnership if…

49. … The spouse/partner is an EEA national and is exercising her own Treaty rights, or begins to do so. … Prior to the initiation of the divorce or annulment proceedings or the termination of the civil partnership, the marriage or partnership has lasted at least three years, including at least one year in the host Member State. (This provision applies to non-EEA nationals.) … The spouses/partners agree, or a court orders, that the non-EEA parent will have custody of the couple’s children. … The retention of residence rights is ‘warranted by particularly difficult circumstances’, includingdomestic violence that occurred during the marriage/partnership. (This provision applies to non-EEA nationals.) … Under some circumstances, when the non-EEA spouse/partner has a right of access to a minor child. Non-EEA nationals must fulfil the conditions for qualifying as a worker, self-employed person or self-sufficient personuntil they acquire a right of permanent residence.

50. Be aware that the UKBA will expect to see that the EEA national was in the UK and exercising Treaty rights (e.g. working, self-employed) on the date of the final divorce decree. We think this rule is wrong and are involved in ongoing litigation challenging it.