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

1. SPECIAL NON-CONTRIBUTORY BENEFITS FOR EU MIGRANTS: A TRI-CITY PROJECT EUROPEAN COMMISSION VP/2011/004/0120 Esther Lieu, Project Manager 14 May 2012

2. SPECIAL NON-CONTRIBUTORY BENEFITS IN THE UK EC Regulation 883/04, Article 70: “Characteristics of social security and social assistance”: they look like welfare benefits but also look like one or more of the following: sickness benefits; maternity and equivalent paternity benefits; invalidity benefits; old-age benefits; survivors’ benefits; benefits in respect of accidents at work and occupational diseases; death grants; unemployment benefits; pre-retirement benefits; family benefits. Annex X, UK Special Non-Contributory Benefits: State Pension Credit (subsistence benefit for those of pension age). Income Support (subsistence benefit for lone parents and certain others). Income-based Jobseeker’s Allowance (subsistence benefit for those seeking work). Disability Living Allowance (mobility component). Income-related Employment and Support Allowance (subsistence benefit for those unable to work). (Later added to Annex X.) Social Security (Persons from Abroad) Amendment Regulations 2006 European Economic Area (‘EEA’) nationals may claim social assistance benefits if they are able to pass a two-part test known as the habitual residence test: • Demonstrate that they are actually habitually resident in the United Kingdom (‘where the habitual centre of their interests is to be found’) • Demonstrate that they have a right to reside’ in the UK (and meet the other eligibility criteria that are imposed on British citizens).

3. DIRECTIVE 2004/38/EC (transposed into UK legislation by the Immigration (European Economic Area) Regulations 2006) Article 6: Right of residence for up to three months 1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport. Article 7: Right of residence for more than three months 1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they: • are workers or self-employed persons (can include part-time work, and job-seekers) • have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State and have comprehensive sickness insurance cover • are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and have comprehensive sickness insurance cover in the host Member State • are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c). Article 16: Permanent Residence after five years continuous and legal residence Article 17: Permanent Residence and permanent incapacity / pension age Regulation 1612/68, Article 12: Primary carer of child in education BUT: Accession (Immigration and Worker Authorisation) Regulations 2006: certain ‘A2’ nationals (from Romania and Bulgaria) aresubject to work authorisation requirements in order to exercise a right to reside as a worker; and they are NOT able to exercise a right to reside as a jobseeker until the end of 2013.

4. CHALLENGES AND SUCCESSES PATMALNIECE It was argued that the right-to-reside test (which British and Irish citizens, but not other EU citizens, always pass) violates Article 3(1) of Regulation 1408/71 (now Article 4 of Regulation 883/04). Their Lordships found that there was indirect discrimination (unanimous) but (4-1) that the Secretary of State’s purpose “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” was justified, and that the justification itself was blind to a person’s nationality. INFRINGEMENT PROCEEDINGS In response to letters from the AIRE Centre and ILPA the European Commission stated that in their view the Right to Reside test is “contrary to equal treatment guaranteed by Article 3 of Regulation 1408/71 when it is the reason that a person which is covered by this Regulation is ineligible for benefit”. In July 2010 the Commission sent a ‘letter of formal notice’ to the UK, and in September 2011, a ‘reasoned opinion’, giving a deadline of November 2011. Bristol City Council v FV [2011] UKUT 494 AAC Claimant (Romanian national) refused housing benefit on grounds that she did not have a right to reside. She successfully argued that as she sold the Big Issue at her own profit or loss, she was self-employed. She was then able to claim Housing Benefit from the council to supplement her income and support her 4 children.

5. QUESTIONS & DISCUSSION My contact details: Esther Lieu elieu@airecentre.org 00 44 (0) 207 831 4276