Migrants and benefits an advisers guide

Transcription

1 Migrants and benefits an advisers guide Law Centre (NI) for Belfast Integration and Participation Project

2 Page 2 Migrants and benefits Migrants and Benefits - An Adviser s Guide Patricia Carty Published by Law Centre (NI) on behalf of Belfast Integration and Participation Project February 2014 ISBN Law Centre (NI) and Belfast Integration and Participation Project 2014 All rights reserved. No part of this publication may be reproduced, stored on any retrieval system or transmitted in any form by any means, including photocopying and recording, without the prior written permission of Law Centre (NI). This document contains complex legal concepts and is targeted at advisers. Anyone seeking further advice and information may contact the Law Centre s advice line: or Monday to Friday, 9.30am to 1pm Disclaimer: Although every effort is made to ensure the information in Law Centre publications is accurate, we cannot be held liable for any inaccuracies and their consequences. The information should not be treated as a complete and authoritative statement of the law. Law Centre (NI) only operates within Northern Ireland and the information in this document is only relevant to Northern Ireland law. When reading Law Centre documents, please pay attention to their date of publication as legislation may have changed since they were published.

3 Migrants and benefits Page 3 Contents General information about advising migrants Office of Immigration Services Commissioner Who can give immigration advice Checking a person s immigration status Different categories of migrants Technical words and phrases 1.0 Non EEA nationals and benefits 1.1 Immigration status 1.2 Person subject to immigration control Public funds 1.3 Employment related benefits that can be claimed by a person subject to immigration control 1.4 Means tested benefits: Income Support, Income-based Jobseeker s Allowance, Income-related Employment and Support Allowance, Pension Credit, Housing Benefit, Universal Credit - person subject to immigration control 1.5 Non-means tested benefits: Attendance Allowance, Carer s Allowance, Child Benefit, Disability Living Allowance, Employment and Support Allowance in Youth, Personal Independence Payment, Severe Disablement Allowance - person subject to immigration control 1.6 Tax credits - person subject to immigration control 1.7 Families where some members are subject to immigration control and some are not Income Support, Income-based Jobseeker s Allowance, Income-related Employment and Support Allowance

4 Page 4 Migrants and benefits State Pension Credit Housing Benefit Child Benefit Disability Living Allowance Tax credits Universal Credit 1.8 Refugees and benefits Refugees and Income Support Refugees and tax credits, Child Benefit, Guardian s Allowance Fast track procedure for tax credit claims 2.0 EEA nationals and benefits 2.1 The habitual residence and right to reside test Exempt groups Habitual residence the factual test Factors relevant to establishing the habitual residence Resuming habitual residence EU law and resuming habitual residence Benefit entitlement where a person fails the habitual residence test Couples where one person is habitually resident How to challenge a habitual residence decision Right to reside Transitional protection for claims pre-dating 30 April Excluded rights of residence EU law rights of residence What to do if a person is found not to be a person with a right to reside

5 Migrants and benefits Page The ordinary residence and right to reside test - Child Benefit and Child Tax Credit Initial three month right of residence Child Benefit and Child Tax Credit 2.3 Ordinary residence and past presence rules Attendance Allowance, Disability Living Allowance and Carer s Allowance 2.4 Contribution-based benefits and employment related benefits and residence 3.0 EU Regulation on co-ordination of social security systems 3.1 Introduction 3.2 Who is covered by Regulation 883/2004/ Personal scope 3.3 What is covered by Regulation 883/2004/ Material scope 3.4 Social security benefits under EC Regulation 883/ Competent state rules 3.6 Equal treatment 3.7 Aggregation 3.8 Apportionment 3.9 Exporting benefits under EC Regulation 883/ Benefits exportable on an indefinite basis Benefits exportable for a limited period or subject to restrictions 3.10 Overlapping benefit rules Appendix 1: Rules affecting Croatian nationals Appendix 2: Rules that affected nationals of Bulgaria and Romania until 31 December 2013

6 Page 6 Migrants and benefits General information about advising migrants Any adviser can try to establish a person s immigration status by checking the person s passport or other documents issued by the Home Office. However, it is a criminal offence to give immigration advice or provide immigration services, unless you are a solicitor or a barrister or your organisation is authorised to do so by the Office of the Immigration Services Commissioner. The Office of Immigration Service Commissioner The Office of the Immigration Services Commissioner (OISC) is an independent, nondepartmental public body set up under the Immigration and Asylum Act The OISC s primary role is to regulate the circumstances when an adviser can give immigration advice or provide immigration services. Who can give advice? If you are a solicitor or a barrister or your organisation is regulated by the OISC then you can give immigration advice. The OISC regulations mean that most advisers are permitted to advise only at a general level (Level 1 adviser or a non-specialist adviser). There are some organizations, including Law Centre (NI), that are able to give specialist advice (level 2 and 3). Generally an adviser regulated by the OISC can be a non-specialist adviser (level 1) or a specialist adviser. If your organisation can provide non-specialist advice then you can explain the process to clients and can advise on straightforward applications, such as when a person is applying for further leave to remain as a student. However, if the person s circumstances are not straightforward, then the application must be handled by a specialist adviser, for example if the person is an overstayer or the application is outside the rules. If you are unsure whether you can advise the person, then you should contact the OISC s Advice Session Supervisor. If your organisation is interested in giving non-specialist advice or would like to provide specialist advice, then you should contact the OISC.

7 Migrants and benefits Page 7 How to check a person s immigration status You can ask to see a person s travel document, such as a passport or any document or letter that a person may have that shows her/his immigration status. You should look at a: Passport - If the person is a non-eea national (ie not a national of the European Economic Area), then her/his passport should have a stamp or a residence permit or a Biometric Residence Permit (BRP) that shows her/his present immigration status. Right of abode certificate - This is very unusual and shows that the holder has a right of abode. Any Home Office document - For example a letter stating that the person has been given indefinite leave to remain in the UK. A Biometric Residence Permit (BRP) - The Home Office has been issuing BRPs since November 2008 and a BRP can be used as an identity document. Residence card/registration certificate held by European nationals and members of their family. A blue travel document (carried by people who have refugee status) or a brown travel document (carried by some people with Humanitarian Leave to Remain) Examples of a stamp, a residence permit and a Biometric Residence Permit If someone has been given leave to enter or remain in the UK, there will usually be a stamp in the passport. The older stamps look like this: Leave to enter for/until SIX MONTHS No work or recourse to public funds

8 Page 8 Migrants and benefits A Residence Permit looks like this: The newer Biometric Residence Permit (or BRP) looks like this: However, the above documents may not establish the person s present immigration status and you will need to ask some questions to confirm whether or not the person has a right to reside in the UK. The most common questions are: Where was the person born? Are her/his parents British citizens or Irish citizens? Is the person an EEA national or the family member of an EEA national who is exercising Treaty rights?

9 Migrants and benefits Page 9 On what basis did the person obtain leave to enter or remain in the UK? For example, is she/he a visitor, student or a migrant worker under the PBS? Does the person have limited leave to remain in the UK or Indefinite Leave to Remain? Different categories of immigration status: Right of Abode: Commonwealth citizens with right of abode have the same rights in the UK as British citizens (see above). They are free from immigration control. They should have either: a Certificate of entitlement to right of abode (CERA), which looks like this: or a stamp in their passport saying: Holder has the right of abode in the United Kingdom; or Holder is entitled to readmission to the United Kingdom. Categories under the Immigration Rules Under UK law, the Immigration Rules set out the various ways a person can obtain leave to enter or remain in the UK. The most common examples are:

10 Page 10 Migrants and benefits The partner or minor child of a British Citizen or a person settled in the UK - The person can either have limited leave to enter or limited leave to remain in the UK. The BRP will refer to their relationship and will state that there is no recourse to public funds. Visitor - The visitor will usually be issued entry clearance or have a stamp on entry allowing her/him to stay in the UK for up to six months. The stamp or the BRP will also state that the person is prohibited from working in the UK and cannot have recourse to public funds. Points-Based System: Tier 1 - allows highly skilled persons to work or look for work in the UK. However, this category is presently closed for anyone outside the UK and for most persons in the UK under a different category. Tier 2 - The Tier 2 (General) category is for non-eea nationals who have been offered a skilled job to fill a gap in the workforce that cannot be filled by an EEA national or a person settled in the UK. Tier 4 - sets out the requirements for non EEA national adults who wish to come to the UK for their post-sixteen education. If a person has been given leave to enter or remain in the UK under the Points-Based System (PBS), the BRP will state what Tier she/he comes under and will clarify what employment she/he is allowed to undertake and whether that employment needs to be authorized by the Home Office UK Border Agency. In addition the BRP will state that the person cannot have recourse to public funds. There is also the possibility that people who have been granted leave to enter or remain under the PBS can bring their dependants into the UK (spouse and minor children).

11 Migrants and benefits Page 11 Technical words and phrases There are some technical words and phrases that have a particular meaning. Here is a brief explanation of some of those that are used in the Guide. Accession States / A8 nationals / A2 nationals in the UK, A8 is the term given to eight of the ten countries that joined the European Union in May These countries are: Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovak Republic and Slovenia. If you are a citizen of one of these countries you are known in the UK as an Accession State national or A8 national. The term A2 nationals refers to nationals of the two countries which joined the European Union (EU) in January 2007 Romania and Bulgaria. Nationals of A8 and A2 states now have full EU law rights. Croatia joined the EU on 1 July 2013 as an Accession State and nationals of Croatia are subject to the Worker Authorisation Scheme (see below). Asylum seeker a person who has applied to the Home Office for refugee status. Biometric Residence Permit a document issued by the Home Office that confirms a person has the right to be in the UK. Common Travel Area the United Kingdom (including Great Britain and Northern Ireland), the Isle of Man, the Channel Islands and the Republic of Ireland. The Common Travel Area means that there are no passport controls in operation for Irish and UK citizens travelling between the two countries. (The) Department the government department responsible for paying benefits, which is the Department for Social Development in Northern Ireland, and the Department for Work and Pensions in England, Scotland and Wales. Discretionary Leave to Remain A decision by Home Office allowing a person to stay in the UK, even though she/he does not meet the requirements of the Immigration Rules.

12 Page 12 Migrants and benefits Entry clearance citizens of most countries need to obtain permission from the Home Office before entering the UK. This permission is referred to as entry clearance. EEA national the European Economic Area (EEA) is made up of the EU which has 28 member states (Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom), and three European Free Trade Association (EFTA) states (Iceland, Liechtenstein and Norway). Swiss nationals have similar rights. EU European Union (Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom) European treaty right This refers to the status an EEA national has when she/he can stay in the UK under European law. It includes when an EEA national is working for an employer, self-employed, a student, self-sufficient or a jobseeker or is the family member of such a person. EU residence documents If a person is an extended family member she/he must have a residence document in order to have a right to reside under EU law. EU residence documents are issued by the Home Office. In other cases it is not necessary to obtain EU residence documents, however such documents are useful confirmation of a person s status where any dispute arises. Under EU law the document simply confirms the person s right of residence, it does not confer it. Also if the person s circumstances have changed a residence document will not give the person a right to reside if, on the facts, that right to reside has ended. EU residence documents are issued by the Home Office. Forms and information are available on the Home Office website. There are a number of different documents depending on a person s circumstances. These are:

13 Migrants and benefits Page 13 a Registration Certificate this applies where the person is an EEA national with a right of residence under the EEA Regulations; a residence card this applies where the person is a non EEA national with the right to reside as the family member of an EEA qualified person or an EEA national who has a permanent right of residence; a derivative residence card this applies where the person is an EEA national with a derivative right to reside, for example as the primary carer of a worker s child in education; a document certifying permanent right of residence this applies where the person is an EEA national; a permanent residence card this applies where the person is a non EEA national. Extended family member of an EEA national Extended family members are treated as family members (see below) and will have the same rights as family members, if issued with an EEA family permit, a registration certificate or a residence card. Extended family member covers: a partner in a durable relationship; a person who is dependent upon the EEA national or is a member of her/his household; a relative of an EEA national/ spouse or civil partner, who on serious health grounds needs the personal care of the EEA national/ spouse or civil partner. Family member of an EEA national A family member includes: a spouse or civil partner of an EEA national (a person remains a spouse or civil partner even if separated and will only cease to be such upon divorce or legal termination of the civil partnership); a child, dependent grandchild or great grandchild of the EEA national/spouse or civil partner of EEA national who is under 21 or dependent (this definition will cover stepchildren); a dependent parent, grandparent or great grandparent of an EEA national, her/his spouse/civil partner. NOTE: Family member of a student The definition of family member restricts the definition of family member of a student after the initial three month period to her/his spouse or civil partner, a dependent child of the student or her/his spouse or civil partner unless the student falls within another category of Qualified Person.

14 Page 14 Migrants and benefits Her Majesty s Revenue and Customs (HMRC) the official name for the UK Tax Office. Illegal entrant a person who has entered the UK unlawfully. For example, she/he entered the UK clandestinely or used a false travel document to enter the UK. The Home Office will have given the person a document stating that she/he is an illegal entrant. (The) Immigration Rules a set of rules that set out the circumstances when a person can enter and remain in the UK. The rules are regularly amended and an up to date version can be found under policy and law on the website of the Home Office. Indefinite Leave to Remain is the status of a person who no longer has any conditions attached to her/his leave to remain in the UK. This is also known as permanent residence or settled status. Limited leave to enter/remain in the UK the status of a person whose leave to enter/remain in the UK will expire on a certain date (shown on the stamp or vignette). Generally a person with limited leave to enter/remain in the UK will also be prohibited from working and/or from having recourse to public funds. National Insurance a tax paid from wages and salaries in the UK which is used to finance some social security benefits. National Insurance number a number issued by the Social Security Agency, which a person must apply for if she/he intends to work in the UK and if she/he wishes to claim social security benefits. Northern Ireland Housing Executive (NIHE) the government agency responsible for allocating government owned housing and for offering advice to homeless persons on finding suitable accommodation. Overstayer a person who had leave to enter the UK, but her/his leave has now expired. If the person has applied for further leave to remain in the UK prior to the expiry of her/his leave and the application has not been determined by UKBA, then she/he is not an

15 Migrants and benefits Page 15 overstayer. Her/his leave to remain in the UK will continue until the application has been finally determined. Points-Based System (PBS) the scheme for non-eea migrant workers entering the UK for employment which from 2008 was brought in to replace the previous work permits and other schemes. Public funds refers to certain funds provided by the government, such as Income Support. If you are in the UK under the Points-Based System it is unlikely that you will have access to those benefits that count as public funds, and you should always seek specialist advice before making a claim to any social security benefit. See section 1 on Non EEA nationals and benefits for further details. Refugee is a person who is at risk of suffering serious harm in her/his country of origin. Remove/removal the act of the government to move a foreign national from the UK to a certain place, usually her/his home country if she/he is unlawfully in the UK or she/he is not entitled to enter the UK. Social Security Agency the government agency responsible for issuing National Insurance numbers and social security benefits. Social security benefit money provided by the government to help some individuals in financial difficulty. United Kingdom (the UK) official name for the state consisting of the island of Great Britain (England, Scotland and Wales) and Northern Ireland. Visa permission to enter the UK; will usually be issued in the form of a stamp (or a vignette) in a person s passport. Work permit a form of permission formerly granted by Work Permits (UK), a branch of the Home Office, which allowed non-eea nationals to work in the UK for a particular employer.

16 Page 16 Migrants and benefits Worker Authorisation Scheme a scheme set up by the UK government which requires Croatian nationals to apply for permission to work before starting to work for an employer in the UK. This scheme does not apply to Croatian nationals who are self-employed or students. The Worker Authorisation Scheme applied to Bulgarian and Romanian nationals until 31 December 2013 when restrictions ended. Worker Registration Scheme the scheme which ran from 2004 to April 2011 through which A8 nationals had to register their employment with the Home Office for the first twelve months of being employed. It did not apply to A8 nationals who were self-employed.

17 Migrants and benefits Page Non-EEA nationals and benefits 1.1 Immigration status It is important to know a person s immigration status and the immigration status of each member of her/his household before advising on entitlement to benefits. This is because a person s immigration status can affect her/his entitlement to benefits and tax credits. If a person is defined as a person subject to immigration control, she/he will be excluded from most benefits and tax credits. In some circumstances making a claim for benefit or receiving benefit for a person who is excluded due to immigration status can have serious consequences for the person s right to remain in the UK. An EEA national is not a person subject to immigration control. If a person and every member of her/his household is an EEA national, then the rules in this section will not apply. However, EEA nationals, including UK nationals, must satisfy the rules on residence which are set out in section 2. This section covers: the rules on who is a person subject to immigration control for benefit purposes; which benefits a person subject to immigration control will be entitled to claim; the entitlement of couples to benefits where one person is a person subject to immigration control. 1.2 Person subject to immigration control A person is not a person subject to immigration control if she/he is a: British citizen; person with a right of abode; EEA national;

18 Page 18 Migrants and benefits refugee; person with discretionary leave to enter or remain; person with indefinite leave to enter or remain (but not if she/he is the subject of a formal undertaking). For benefits and tax credits, a person subject to immigration control means a person who is not a national of an EEA state and who: (a) requires leave to enter or remain in the UK but does not have it; (b) has leave to enter or remain which is subject to a condition that she/he does not have recourse to public funds; (c) has leave to enter or remain given as the result of a maintenance undertaking; (d) has leave to enter or remain solely because she/he is appealing a decision to refuse to vary a previous decision on leave. (a) requires leave to enter or remain in the UK but does not have it Examples include where a person: is an asylum seeker with temporary admission; has overstayed her/his limited leave to remain; has entered the UK illegally; is subject to a deportation order. These are just a few examples. Seek specialist advice if a person is refused social security benefits or tax credits due to being a person subject to immigration control or if contacted by a person who these rules may apply to. There are close links between the Home Office and benefit authorities. Making a claim for a benefit or tax credit may alert the Home Office to a person s presence in UK and could result in deportation. (b) has leave to enter or remain in the UK which is subject to a condition that she/he does not have recourse to public funds Examples include people admitted to the UK with time limited leave such as spouses/civil partners, students or visitors who are given limited leave on the condition that they do not have recourse to public funds (see section for what is counted as public funds ).

19 Migrants and benefits Page 19 Such a person will usually have a stamp on her/his passport that she/he is not permitted to have recourse to public funds. See below for example. (c) has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; A maintenance undertaking is a written undertaking given by a person to be responsible for the maintenance and accommodation of another person coming to the UK. It is sometimes known as a sponsorship agreement. Where an elderly relative is seeking to join family in the UK, the Home Office will usually require a maintenance undertaking. If there is any doubt about whether the person s leave was given as a result of an undertaking then she/he should take specialist immigration advice. (d) Leave to enter or remain is being extended while they appeal against a refusal to vary leave. An example of this is where a person has appealed a decision to vary leave which she/he previously had. A person affected by this rule should seek further specialist advice Public funds The list of excluded public funds is contained in the Immigration Rules. This list is subject to change and should be checked before advising a person to make a claim for a tax credit or benefit. At the time of writing the following benefits are public funds: Attendance Allowance; Carer s Allowance;

20 Page 20 Migrants and benefits Child Tax Credit; Disability Living Allowance; Income-related Employment and Support Allowance (ESA); ESA in youth; Housing Benefit; Incapacity Benefit for incapacity in youth; Income-based Jobseeker s Allowance; Income Support; Pension Credit; Personal Independence Payment (to be introduced in Northern Ireland some time in 2014); Severe disablement Allowance; Social Fund payment; Universal Credit (due to be introduced in Northern Ireland some time in 2014); Working Tax Credit. Homelessness assistance and social housing, for example Northern Ireland Housing Executive and Housing Association accommodation, are also defined as public funds. If a benefit does not appear on the public funds list, then it will not be treated as a public fund and a person subject to immigration control may be able to claim it. Also if a person comes within an exception see sections 1.4 to 1.6, she/he will not be regarded as having recourse to public funds. Having recourse to public funds when a person is subject to immigration control can have serious implications for her/his permission to remain in the UK. This applies even if the claim for benefit is refused. Having recourse to public funds in breach of leave conditions can result in deportation, refusal of any future applications for leave to remain, and prosecution.

21 Migrants and benefits Page Employment related benefits that can be claimed by a person who is a person subject to immigration control A person who is a person subject to immigration control may claim any benefit that is not listed as a public fund. These include benefits that are based on prior national insurance contributions including: Contribution-based Jobseeker s Allowance; Contribution-based Employment and Support Allowance; and State Retirement Pension. A person subject to immigration control may also claim employment related benefits such as: Statutory Sick Pay; Statutory Maternity Pay; Statutory Paternity Pay; Statutory Adoption Pay; Maternity Allowance; Industrial Injuries Benefits. EXAMPLE Khaled is a person subject to immigration control: his visa which permits him to work states that he must not have recourse to public funds. He is severely disabled in an accident in the hospital where he works. He is entitled to claim Industrial Disablement Benefit as well as Statutory Sick Pay. If he satisfies the national insurance contribution conditions he will be entitled to claim Contribution-based Employment and Support Allowance when his Statutory Sick Pay ends. He will not be entitled to means tested benefits or to Disability Living Allowance.

22 Page 22 Migrants and benefits Some provisions in the Welfare Reform Bill (which is currently passing through the Northern Ireland Assembly and is due to become law some time in 2014) will restrict entitlement to the benefits listed above to those who have a right to work in the UK. Where a person may be affected by such a change, an adviser should contact the Law Centre s advice line. 1.4 Means tested benefits: Income Support, Income-based Jobseeker s Allowance, Income-related Employment and Support Allowance, Pension Credit, Housing Benefit, Universal Credit - person subject to immigration control In the limited circumstances set out below, it will be possible for a person who is a person subject to immigration control to receive: Income support; Income-based Jobseeker s Allowance; Income-related Employment and Support Allowance; Pension Credit; Housing Benefit; Universal Credit (once it is introduced some time in 2014). This will apply where the person: has leave to enter or remain given as a result of a maintenance undertaking and she/he has been resident in UK for at least five years; has leave to enter or remain given as a result of a maintenance undertaking and the person who gave the undertaking has died; is a national of Macedonia or Turkey and is lawfully present in UK. This may apply where a person has leave to enter or remain for a period which means she/he is lawfully present. However, such people will have to satisfy the habitual residence and right to reside test set out in section 2 and temporary admission does not give a person a right to reside.

23 Migrants and benefits Page Non-means tested benefits: Attendance Allowance, Carer s Allowance, Child Benefit, Disability Living Allowance, Employment and Support Allowance in Youth, Personal Independence Payment, Severe Disablement Allowance - person subject to immigration control A person who is a person subject to immigration control will not be excluded from: Attendance Allowance (AA); Carer s Allowance; Child Benefit; Disability Living Allowance (DLA); Employment and Support Allowance in Youth (due to be abolished in 2014); Personal Independence Payment (due to be introduced some time in 2014); Severe Disablement Allowance; if she/he: is the family member of an EEA national, including a British citizen; is a national or family member of a national of Algeria, Morocco, San Marino, Tunisia or Turkey who is lawfully working in the UK or who has stopped lawfully working due to pregnancy, childcare, illness or accident or because she/he has reached retirement age; has leave to enter or remain given as a result of a maintenance undertaking; (for DLA, AA and Child Benefit only) is covered by a reciprocal agreement; was in receipt of benefit before 5 February 1996 (7 October 1996 for Child Benefit). EXAMPLE Jill is a person subject to immigration control. She is a citizen of the United States who entered Northern Ireland under a two year spousal visa which stated that she must have no recourse to public funds when she joined her English husband who had taken up employment in Northern Ireland. She is severely disabled. Although Disability Living Allowance is listed as a public fund, she is entitled to claim it because she comes within the exception that she is a family member of an EEA national as her English husband is an EEA national.

24 Page 24 Migrants and benefits 1.6 Tax credits and person subject to immigration control NOTE: If a person is a person subject to immigration control but her/his partner is not, or her/his partner comes within one of the exceptions set out below, it will be possible to make a joint claim for tax credits, see section A person who is a person subject to immigration control will not be excluded from entitlement to: Child Tax Credit; Working Tax Credit (WTC); if she/he: has leave to enter or remain given as a result of a maintenance undertaking and she/he has been resident in the UK for at least five years; has leave to enter or remain given as a result of a maintenance undertaking and the person who gave the undertaking has died; (WTC only) is a national of Macedonia or Turkey and is lawfully present in UK. This may apply where a person has leave to enter or remain for a period which means she/he is lawfully present. However such people will have to satisfy the habitual residence and right to reside test set out in section 2 and temporary admission does not give a person a right to reside. (for up to 42 days in the period of leave) has limited leave with a condition that she/he does not have recourse to public funds, has not had such recourse to public funds, but funds that are reasonably expected from abroad have been temporarily interrupted. 1.7 Families where some members are subject to immigration control and some are not Different rules apply to specific groups of benefits where a member of a household is a person subject to immigration control. Advisers should carefully consider sections to

25 Migrants and benefits Page Income Support/Income-based Jobseeker s Allowance/ Income-related Employment and Support Allowance Where a person claiming has a partner who is a person subject to immigration control, the partner will be included in the claim as a member of the household and the person claiming will only be paid the single rate of a personal allowance, unless the partner falls within one of the groups set out section 1.4 that can claim means tested benefits. However, even though no amount will be paid for the partner who is a person subject to immigration control, she/he will be treated as part of the claimant s household and her/his work, income and capital will affect benefit entitlement and will mean that the claimant will not qualify as a lone parent and may not be entitled to a Severe Disability Premium. If a person who is not a person subject to immigration control is entitled to a premium, this may be paid at a couple rate. However, this is something to be cautious about as it may lead to a partner who is a person subject to immigration control being regarded as having had recourse to public funds. EXAMPLE Samuel is a British citizen. He is entitled to Disability Living Allowance, Incomerelated Employment and Support Allowance and Housing Benefit. His wife Lee Ping joins him from Thailand. She is a person subject to immigration control as her spousal visa states that she must not have recourse to public funds. Samuel will continue to receive Income-related Employment and Support Allowance but will receive the personal allowance at the single rather than couple rate. He will lose the severe disability premium of Income-related Employment and Support Allowance as his wife is taken into account as part of his household State Pension Credit Different rules apply to State Pension Credit. Where a person claiming has a partner who is a person subject to immigration control, then that person will not be included as part of the household in benefit calculations. This means that the claimant will be paid as a single

26 Page 26 Migrants and benefits person and her/his partner s income and capital will not be taken into consideration. It may also be possible to argue that the claimant should be entitled to continue to receive any additional amount for severe disability. EXAMPLE Ruby is a British citizen. She is entitled to State Pension Credit and Attendance Allowance. Her husband Tarik joins her from Turkey. He is a person subject to immigration control as his two year spousal visa states that he must not have recourse to public funds. Ruby will continue to receive State Pension Credit paid at a single rate. Her husband s savings of 20,000 will not be taken into consideration and will not affect her entitlement as he is not included as a member of her household under State Pension Credit rules. Arguably she should continue to receive the severe disability addition of State Pension Credit as her husband is not included as a member of her household Housing Benefit If a claimant s partner or a child in the household is a person subject to immigration control, Housing Benefit will include amounts for the partner/child. This can lead to difficulties because if that partner or child s leave (immigration status) states that she/he must not have recourse to public funds, receipt of extra amounts of Housing Benefit could affect her/his right to remain in the UK. It is advisable to make it clear in any claim for Housing Benefit that the person s leave states that she/he is not to have to recourse to public funds and to expressly request that the award does not include an amount for that person Child Benefit If a claimant is not a person subject to immigration control, it will be possible to claim for a child for whom the person is responsible even if that child is a person subject to immigration control. This is because it is only the immigration status of the person claiming that is relevant.

27 Migrants and benefits Page 27 EXAMPLE Matthew is a British citizen. His partner Fatima is an asylum seeker. She has one child. Matthew will be entitled to claim Child Benefit for the child even though the child is regarded as a person subject to immigration control Disability Living Allowance If a child who is not a person subject to immigration control is the claimant, she/he will not be excluded from claiming where her/his responsible adult is a person subject to immigration control. A person who is subject to immigration control will be entitled to claim Disability Living Allowance if she/he is the family member of an EEA national Tax credits Couples with children will be paid Child Tax Credit and Working TaxC at a couple rate even where one member of the couple is a person subject to immigration control. Any child for whom the person is responsible will be included in the claim and will receive payment even if the child is a person subject to immigration control. Such payments are not regarded as having had recourse to public funds EXAMPLE Alex is a British citizen who is working in Northern Ireland. His partner Ivanna is a person subject to immigration control as she is Russian and her visa states that she must not have recourse to public funds. Alex and Ivanna must make a joint claim for tax credits as a couple and will be paid at a couple rate for Working Tax Credit and Alex will be able to claim Child Tax Credit for Ivanna s two children. Couples without children will claim working tax credit as a couple but, where one member of the couple is a person subject to immigration control, the couple element will not be paid.

28 Page 28 Migrants and benefits EXAMPLE Ibrahim is a British citizen who is working in Northern Ireland. His wife Fatima is a person subject to immigration control as her two year spousal visa states that she must not have recourse to public funds. Ibrahim and Fatima must make a joint claim for tax credits but will not be paid the couple element as they have no children. Fatima is pregnant. When her baby is born the couple s award of tax credits will be amended to include the couple element and they will be entitled to Child Tax Credit Universal Credit (due to be introduced some time in 2014) If a claimant s partner is a person subject to immigration control and is not in one of the exceptions set out at section 1.4, then the person making the claim will claim as a single person, but the partner s income and capital will be taken into account. This is less favourable than the current position under tax credits. Claimants may experience problems where a mixed status couple is being migrated onto Universal Credit. As a general rule when tax credits claims are migrated to Universal Credit there will be transitional payments ensuring that Universal Credit will be paid at a rate equivalent to any previous tax credit award. It is unclear whether this will apply in circumstances where one member of a couple is a person subject to immigration control. 1.8 Refugees and benefits A refugee is not a person subject to immigration control for benefit purposes. Refugees are entitled to claim benefits. However, a person who has applied for refugee status is known as an asylum seeker and asylum seekers come within the person subject to immigration control rules until refugee status is granted.

29 Migrants and benefits Page Refugees and Income Support A refugee can claim Income Support for up to nine months while studying if she/he: attends a course for more than fifteen hours per week aimed at learning English for the purpose of getting employment; has been in Northern Ireland for not more than twelve months when the course begins Refugees and tax credits, Child Benefit and Guardian s Allowance A person who has been granted refugee status can claim tax credits, Child Benefit and Guardian s Allowance and have them backdated to the date of asylum application. Tax credits must be claimed within one month and Child Benefit and Guardian s Allowance must be claimed within three months of receiving the letter from the Home Office granting leave as a refugee. The amount of tax credits will be reduced by the amount the person received from National Asylum Support (NASS) for support and this may cancel out tax credit entitlement. However, the claim should be made and potential entitlement explored. NOTE: The amount of Child Benefit or Guardian s Allowance is not reduced by the amount of asylum support received. EXAMPLE Abdi is awarded refugee status on 9 October She has two children and makes claims seven days later for Child Benefit and Child Tax Credit. Her Child Benefit and Child Tax Credit are backdated to the date of her asylum claim but her Child Tax Credit payment is reduced by the amount of NASS support which she received. In contrast, her friend Amal who also received refugee status on 9 October 2013 claimed Child Benefit and Child Tax Credit four months later. Her Child Benefit is backdated for three months and her Child Tax Credit is backdated for 31 days.

30 Page 30 Migrants and benefits Fast track procedure for tax credit claims Refugees who are making claims for Income-based Jobseeker s Allowance or Income-related Employment and Support Allowance or Income Support are now able to ask to make a fast track claim for tax credits through the Jobs and Benefits Office. Under fast track claims, HMRC aims to process claims and make payments in ten working days. There is still a lack of awareness in local Jobs and Benefits Offices about the fast track procedure. Contact the Law Centre for further information and guidance if necessary. NOTE: When a person is granted refugee status, it is important that advisers arrange for appropriate claims to benefits without delay. This is because NASS support will be withdrawn after 28 days and it will take some time for claims for benefit to be made and processed. Time is of the essence. Contact the Law Centre for advice and assistance where difficulties arise.

31 Migrants and benefits Page EEA nationals and benefits Many benefits and tax credits have residence and/or presence conditions. These rules vary between different benefits. General information about who is an EEA national and who is the family member of an EEA national is set out in the section on technical words and phrases (see pages 10 to 14). There is also information in that section about EU residence documents. This section covers: habitual residence and right to reside; ordinary residence and right to reside; contribution-based and employment benefits and residence. Special rules currently apply restricting the right to reside of Croatian nationals until 1 July These rules may then be extended to 1 July These are set out at Appendix 1. Similar restrictions applied to Bulgarian and Romanian nationals until 31 December These are set out at Appendix 2. These rules are included in Appendix 2 as they may be relevant in determining whether a person has satisfied rules for permanent residence or retention of worker status. If a person claiming benefit or her/his partner or any member of her/his household is not an EEA national, then check Section 1 before looking at this section. This is important because, if Section 1 of these notes applies and the person s immigration status means that she/he is not entitled to claim public funds, then being included in a claim for a social security benefit or tax credit may lead to serious consequences, including deportation and prosecution.

32 Page 32 Migrants and benefits 2.1 The habitual residence and right to reside test Income-based Jobseeker s Allowance From 1 January 2014 a person Income-based Jobseeker s Allowance must as a rule have been residing in the common travel area for three months as a condition of entitlement to benefit. In addition, Income-based Jobseeker s Allowance claimants must satisfy the habitual residence and right to reside rules set out below. Income-based Jobseeker s Allowance, Income-related Employment and Support Allowance, Income Support, Housing Benefit, Pension Credit (and Universal Credit which is due to be introduced some time in 2014) Income-based Jobseeker s Allowance, Income-related Employment and Support Allowance, Income Support, Housing Benefit, Pension Credit (and Universal Credit which is due to be introduced some time in 2014) require that a person must be habitually resident and have a right to reside to be entitled to benefit. Unless a person is in an exempt group, she/he must: be habitually resident in fact in the Common Travel Area (the UK, Ireland, the Channel Islands or the Isle of Man); and have a right to reside in the Common Travel Area Exempt groups A person will be exempt from the habitual residence test Income-based Jobseeker s Allowance, Income-related Employment and Support Allowance, Income Support, Housing Benefit, Pension Credit (and Universal Credit which is due to be introduced some time in 2014) and will be treated as having a right to reside if she/he is: an EEA national who is a worker or retains worker status; EXAMPLE Luis comes to Northern Ireland to take up an offer of employment at a local computer company. He is entitled to claim Housing Benefit as soon as he arrives in

33 Migrants and benefits Page 33 Northern Ireland as he is an EEA worker who is exempt from the habitual residence and right to reside test. an EEA national who is self-employed or retains self-employed status; a family member of a person in either of the above two groups; an EEA national or family member of an EEA national with a permanent right of residence as a retired or permanently incapacitated worker or self-employed person; a Croatian national working lawfully under worker authorization provisions; a refugee; a person with exceptional leave to enter or remain in UK granted outside the Immigration Rules; a person with humanitarian protection granted under the Immigration Rules; a person deported, expelled or legally removed from another country to the UK who is not a person subject to immigration control; EXAMPLE Abdullah is a dual British/ Syrian citizen. He is deported to the United Kingdom from the United Arab Emirates. He is entitled to Income-based Jobseeker s Allowance straight away as he is exempt from the habitual residence and right to reside test. a person who left Zimbabwe to come to the UK after 28 February 2009 but before 18 March 2011 who has received assistance from the UK government to settle in the UK. For Housing Benefit only receives Income Support, Income-related Employment and Support Allowance, Income-based Jobseeker s Allowance or State Pension Credit For Income-related Employment and Support Allowance only is being transferred from Income Support to Income-related Employment and Support Allowance which was transitionally protected from the requirement to have a right to reside Habitual residence the Factual Test If not exempt, a person must show habitual residence in the Common Travel Area (the UK, Ireland, the Channel Islands and the Isle of Man).

34 Page 34 Migrants and benefits NOTE. Benefit authorities often make the mistake of disregarding habitual residence outside the UK but within the Common Travel Area. Watch out for this as disputes may be easily resolved where habitual residence within the Common Travel Area can be shown. Also the decision maker must consider the question of whether the person was habitually resident right up to the date of the decision rather than simply the date of claim. There is no definition of habitual residence in legislation but there is a substantial amount of case law on what is habitual residence. The following principles have emerged from case law: habitual residence is a question of fact to be decided on all the circumstances of the case; a person must actually be resident in order to be habitually resident; it is not enough to have an intention to become resident; a person need not intend to reside permanently, but must have a settled intention to reside in the Common Travel Area for the time being; no particular period of actual residence is essential for establishing habitual residence, however, in most cases a person must have actually been resident for an appreciable period of time. There have been a significant number of appeals on the issue of what is an appreciable period of time. What is an appreciable period is not set down in law and needs to be considered in the individual facts of each claim. It would be unlawful for the Department (DSD) to apply a blanket policy that a person must be resident for a specific period of for example three months without further consideration of the facts, and such a policy could be challenged by an application for judicial review; the adjudicating authorities must look at the settledness of the person s intention to reside in the Common Travel Area and this is linked to the determination of the length of the appreciable period of time. The stronger the person s settled intention is to reside in the Common Travel Area, the shorter the period of actual residence will be necessary.

35 Migrants and benefits Page Factors relevant to establishing habitual residence The person must show evidence of her/his settled intention to reside in the Common Travel Area, which can include consideration of the person s reasons for coming and the viability of the residence. The following factors may be relevant: strength of family ties in the Common Travel Area and abroad; any enquiries made about securing employment, education, training or accommodation; whether the person has ended employment abroad or closed any benefit claims abroad; whether the person sold her/his home or give up her/his accommodation; whether the person closed or transferred any bank accounts; steps taken to dispose of possessions or arrange for them to be transported to Northern Ireland; whether the person notified medical or school authorities (if she/he has children) of her/his intention to come to live in Northern Ireland; whether the person travelled on a one way or on a return plane ticket; any other steps which may show the person intended to leave her/his original place of residence and reside in Northern Ireland; how the person planned to support her/himself if benefit is not paid. The viability of a person s residence without claiming benefits is one relevant factor although it is not an additional requirement; whether the person has arranged accommodation here; whether the person has registered with a doctor or dentist; whether the person has registered her/his children in a school; whether the person has enrolled in any clubs or societies; whether the person has opened a bank account in Northern Ireland. EXAMPLE Gary is a British citizen who returns to Northern Ireland to live after spending 40 years in Australia. He claims Income-based Jobseeker s Allowance and Housing Benefit as soon as he arrives in Northern Ireland and his claim is refused on the grounds that he is not habitually resident in the UK and is regarded as a person

36 Page 36 Migrants and benefits from abroad. The factors relevant in making this decision are that Gary has not been resident for an appreciable period of time, has not arranged accommodation and has a bank account still in Australia. Gary should be advised to make a further claim for Income based Jobseeker s Allowance once he has been resident for three months. He can make further claims for Housing Benefit within the three month period until it is accepted that he is habitually resident. Gary has a right to reside as a British citizen so he will be entitled to benefit once he becomes habitually resident Resuming habitual residence The habitual residence test applies to UK residents including British citizens who are returning to the UK after an absence abroad. All the facts of the person s case will be considered and if an absence from the UK was temporary then habitual residence will not have been lost. EXAMPLE Hari was habitually resident in the UK and left in 2008 to do voluntary work in India for three years. When he returned and claimed State Pension Credit his claim was disallowed on habitual residence grounds. His appeal was allowed because it was decided that his time in India did not end his habitual residence in the UK. In making the decision, the facts that were found to be relevant were that he had kept all his possessions in the UK, he did not have a right to reside in India, he made regular visits to the UK and he had shown that he always intended to return to live in the UK (if you want to read more about this, see case reference KS v SSWP 2010 UKUT 156 AAC) EU law and resuming habitual residence Where a person was habitually resident in the Common Travel Area and she/he moved to live and work within the European Union, she/he will immediately be habitually resident on arrival in the Common Travel Area. Such a person should not be required to be present for an appreciable period of time to re-establish habitual residence.

37 Migrants and benefits Page Benefit entitlement where a person fails the habitual residence test If a person fails the habitual residence test she/he will not receive Income-based Jobseeker s Allowance, Income-related Employment and Support Allowance, Income Support, Housing Benefit and State Pension Credit. However, the person should continue to make further claims for these benefits until it is accepted that she/he has in fact become habitually resident. If the person is destitute, she/he may be entitled to assistance from social services and should contact a community care adviser at the Law Centre for further advice Couples where one person is habitually resident Where a person satisfies or is exempt from the habitual residence test, she/he may make a claim for means tested benefits for her/himself but also for her/his partner. This general rule is subject to exceptions for Income-based Jobseeker s Allowance and Universal Credit which are set out below Couples Income based Jobseeker s Allowance For Income based Jobseeker s Allowance in the case of a joint-claim couple, where one person does not satisfy the habitual residence test, her/his partner who does satisfy the habitual residence test, will be able to claim Income based Jobseeker s Allowance and will be paid at the couple rate without the need for a joint claim. EXAMPLE Gerard is a British citizen. His Spanish partner Penelope joins him and the couple wants to claim Jobseeker s Allowance. Penelope is not immediately habitually resident although she has a right to reside as a jobseeker. Gerard will claim Income-based Jobseeker s Allowance for them both and will be paid at the couple rate.

38 Page 38 Migrants and benefits Couples Universal Credit For Universal Credit (to be introduced from 2014 through to 2017) the habitual residence test applies to both partners making a joint claim. If one partner fails the habitual residence test then the other must claim Universal Credit as a single person. The award will be paid at the rate for a single person; however the non habitually resident partner s income and capital will be taken into account How to challenge a habitual residence decision If a person fails the habitual residence test, she/he has a right to challenge the decision by an application for revision or appeal. She/he should make a further claim for benefit pending the outcome of the appeal. This is necessary because an appeal will only consider the facts relating to the person s habitual residence down to the date of the decision to disallow claim for benefit. A person should be advised to challenge subsequent refusals and to make further subsequent fresh claims. Some local offices incorrectly advise people that it is either not possible or not necessary to make a fresh claim where a challenge to a habitual residence decision has been lodged. Such advice is incorrect and should be brought to the attention of the Social Security Agency, for example by referring the matter to Law Centre (NI). Ask for associated appeals to be listed together as this will permit the appeal tribunal to decide when during the entire period of disallowance the person satisfied the habitual residence rule. Eventually a claim will be accepted if this is the only reason leading to disallowance. The upper limit of an appreciable period is usually three months Right to reside test The right to reside test was introduced as part of the habitual residence test on 1 May The test has proved to be controversial, particularly in respect of EEA nationals who have been refused benefits on the grounds of right to reside when not economically active. Also, special rules limit the right to reside of Croatian nationals until at least 30 June 2018 (see

39 Migrants and benefits Page 39 Appendix 1). The European Commission is currently in a dispute with the UK regarding the lawfulness of the right to reside test in relation to EEA nationals. Until this dispute is resolved the Social Security Agency will continue to apply the rules as set out below. The Law Centre welcomes referrals of cases on the issue of right to reside and can provide advice and support to advisers pursuing right to reside appeals. This is a complex issue that requires knowledge of immigration law, EU law and case law. It can depend on a person s individual but also family circumstances so that a person who had a right to reside for benefit purposes may find that when her/his circumstances change she/he no longer has a right to reside and needs to seek further advice. Examples of where a person will have a right to reside include where she/he is: a British citizen; an Irish citizen; a Commonwealth citizen with a right of abode; a person with leave to enter or remain, for example indefinite leave, refugee leave. The majority of people affected by the right to reside rule are EEA citizens or their family members. The rest of the section on right to reside focuses on the rights to reside of EEA nationals Transitional protection for claims pre-dating 30 April 2004 Where a person has been entitled to Income Support, Income-based Jobseeker s Allowance, State Pension Credit or Housing Benefit since 30 April 2004, rules on transitional protection mean that she/he does not need to satisfy the right to reside rule under a continuing claim for benefit. In certain circumstances transitional protection will continue to apply for subsequent claims due to linking rules. For example, where a person with transitional protection is migrated to Income-related Employment and Support Allowance from Income Support on disability grounds, she/he will continue to be exempt from the right to reside rule.

40 Page 40 Migrants and benefits Excluded rights of residence Some benefits specifically exclude particular categories of right to reside. These are set out below Excluded rights of residence for Income-based Jobseeker s Allowance (and Universal Credit which is due to be introduced some time in 2014) An EEA national with an initial three-month right of residence; a family member of a person with a three-month initial right of residence; the primary carer of a British citizen who is dependent on the person and would have to leave the UK if the primary carer was required to leave. NOTE: This exclusion is controversial and the Law Centre is seeking referral of such cases to challenge this rule. EXAMPLE Rani is a non EEA national came to the United Kingdom on a holiday visa and did not return to Egypt. She was in a relationship with a British man and she has a British son. When her relationship breaks down Rani seeks advice on claiming benefits. She will not be entitled to Income-based Jobseeker s Allowance, Income Support, Income-related Employment and Support Allowance, Housing Benefit, Child Benefit and Child Tax Credit as her derivative right to reside as the parent of a British national is an excluded right to reside for these benefits. This rule may be challenged and the Law Centre welcomes referral of such cases Excluded rights of residence for Income Support, Income-related Employment and Support Allowance, Pension Credit and Housing Benefit An EEA national with an initial three month right of residence; a family member of a person with a three month initial right of residence; an EEA jobseeker; a family member of an EEA jobseeker;

41 Migrants and benefits Page 41 the primary carer of a British citizen who is dependent on the person and would have to leave the UK if the primary carer was required to leave. NOTE: This exclusion is controversial and the Law Centre is seeking referral of such cases to challenge this rule. EXAMPLE Angela is a German lone parent who comes to Northern Ireland to look for work. After one month her savings run out and she is advised at the Jobs and Benefits Office to claim Income Support as her son is aged one. Her claim is disallowed as she does not have a right to reside as a jobseeker for Income Support. Angela will be entitled to Jobseeker s Allowance once she has established habitual residence. She can appeal the decision that she does not have a right to reside for Income Support and she should contact the Law Centre for further advice. If a person s right to reside is as an EEA jobseeker she/he will not satisfy the right to reside test for any of the means tested benefits except Income-based Jobseeker s Allowance. If a person receives Income-based Jobseeker s Allowance, she/he will currently satisfy the habitual residence test for Housing Benefit. However, there are proposals to exclude EEA jobseekers from Housing Benefit in the future EU law rights of residence Under EU law, EEA nationals and their family members may have a right to reside under the following categories: initial three-month right of residence; extended right of residence; permanent right of residence; derivative right of residence; These categories are considered in more detail below.

42 Page 42 Migrants and benefits Initial three-month right of residence - Income Support, Income-based Jobseeker s Allowance, Income-related Employment and Support Allowance, State Pension Credit or Housing Benefit. All EEA nationals including Croatian nationals have a right to enter the UK and have an initial right of residence for three months. A person will have this right regardless of whether she/he is looking for work but the right is subject to the condition that the person must not become an unreasonable burden on the social assistance system of the UK. The initial threemonth right of residence will also apply to the family members of the EEA national. If a person s only right to reside in the UK is this initial three-month right of residence, she/he will not be entitled to Income Support, Income-based Jobseeker s Allowance, Incomerelated Employment and Support Allowance, State Pension Credit or Housing Benefit. However, if the person can assert another right to reside then she/he may be entitled to these benefits during the initial three-month period. NOTE: In contrast, the initial three-month right to reside will satisfy the ordinary residence and right to reside test for Child Benefit and Child Tax Credit Extended right of residence The Immigration (EEA) Regulations 2006 incorporate the provisions of the EU Residence Directive 2004/38 into UK law. The Regulations provide for an extended right of residence where the person comes within a category of qualified person as defined in the Regulations. Family members of qualified persons and of EEA nationals with a permanent right of residence also have a right to reside. Special provisions limit the application of some of the rights of residence set out below in respect of Croatian nationals until at least 30 June A qualified person is a person who is an EEA national and who is in the UK as a: jobseeker; worker; self-employed person; person who retains the status of worker or self-employed person;

43 Migrants and benefits Page 43 person who is self-sufficient; student who is self-sufficient; the family member of the above Jobseeker This will apply if the person is looking for work and has a genuine chance of finding employment. A person will generally be accepted as a jobseeker if she/he has claimed Jobseeker s Allowance or national insurance credits. From 1 Jan 2014, a right to reside as a jobseeker will last for six months. However, a person with a right to reside as a jobseeker will have to satisfy the three-month residence in the common travel area as well as the factual habitual residence test in order to qualify for benefit. After six months such a person must show compelling evidence that she/he is continuing to seek work and has a genuine chance of finding work in order to continue having such a right to reside. At the time of writing, a right to reside as a jobseeker will satisfy the right to reside requirement for Income-based Jobseeker s Allowance, which will passport a person to Housing Benefit, and it will also satisfy the right to reside requirement for Universal Credit (once it is introduced in Northern Ireland, some time in 2014). There are plans to exclude EEA jobseekers from entitlement to Housing Benefit from later in If the person has dependent children the status of jobseeker will satisfy the right to reside test for Child Benefit and Child Tax Credit. A right to reside as a jobseeker may not satisfy the right to reside requirement for Income Support, Income-related Employment and Support Allowance, Pension Credit (or Housing Benefit without a linked award of Jobseeker s Allowance). Advisers should contact Law Centre (NI) for further advice if claimants are refused benefit on this ground. Croatian nationals are excluded from the right to reside as a jobseeker until 1 July 2018 unless exceptions apply (see Appendix 1).

44 Page 44 Migrants and benefits NOTE: When Universal Credit is introduced in Northern Ireland, EEA nationals and their family members who have a right to reside on the basis of being jobseekers will be subject to all work-related requirements under conditionality rules of Universal Credit Worker An EEA national who is a worker has a right to reside and is exempt from the habitual residence test. To be a worker, a person must be in employment and the person s work must be genuine and effective rather than marginal and ancillary. Worker status continues while the person is still under a contract of employment. A person will still be a worker while on holiday, sick leave or maternity leave, including any unpaid maternity leave. This will apply to Croatian nationals in authorized work. Where there is any doubt as to whether a person is a worker all the facts of the case must be considered, including: length of employment a person who worked for two weeks as a steward at Wimbledon was found to have worker status; number of hours worked there is no minimum number of hours. An au pair working thirteen hours per week has been found to be a worker. The Court of Justice of the EU has found that five and a half hours per week might entitle a person to worker status; remuneration this may be in kind such as board and lodging, but voluntary work will not lead to worker status. Work which is low paid and supplemented by benefits may still lead to worker status; pattern of work the more regular work is, the more likely that worker status will have been established; agency work may lead to worker status; working cash in hand may lead to worker status Self-employed person A self-employed EEA national will have a right to reside under EU law and will be exempt from the habitual residence test. Croatian nationals who are self-employed have the same rights as other EEA nationals.

45 Migrants and benefits Page 45 To be self-employed, a person must provide services in return for remuneration. The work must be genuine and effective and not marginal and ancillary. A person counts as selfemployed while taking steps to set up a business such as arranging premises, distributing flyers, ordering stock or arranging a licence. Likewise, a person may still count as selfemployed during periods where there is a lull in trade. This will depend on the facts of the case, and relevant issues will include steps being taken to develop new business, administration and networking. Registration with HMRC is necessary if self-employed, although in some cases a person will be accepted as self-employed before she/he has registered as such with HMRC. It can be possible to retain self-employed status in some circumstances for example during periods where a person is temporarily unable to work due to illness or accident. Unlike for worker status, it is possible to retain self-employed status where a person is a Croatian national during periods of restriction. It may be possible to continue to be self-employed during a break due to pregnancy or childbirth issues EXAMPLE Olga is Croatian and is a self-employed piano teacher. She has recently had a baby and is too unwell to work. She will be entitled to Income-related Employment and Support Allowance as she will continue to have a right to reside as a self-employed worker during a temporary interruption in her pattern of work due to childbirth. A formerly self-employed person will not retain worker status if she/he is involuntarily unemployed from self-employment and registered as a jobseeker or if doing vocational training. Advisers should contact the Law Centre for further advice if a client has been affected by this rule. Where a person is affected by this rule she/he may be able to claim a right to reside as a jobseeker. A Croatian national will not have a right to reside as a jobseeker until at least 1 July 2018.

46 Page 46 Migrants and benefits Retaining worker status A person (other than a Croatian national requiring authorization) will retain worker status if she/he: is temporarily unable to work due to an illness or accident. The person will have to show that the inability to work is temporary rather than permanent. It is not necessary that the person has claimed Employment and Support Allowance or passed the work capability assessment. The test relates to ability to do the work the person was doing or was seeking. EXAMPLE Pietro is temporarily unable to work due to a viral infection. His Statutory Sick Pay has expired but his job remains open for him to return to when he is fully recovered. Pietro will have a right to reside for Employment and Support Allowance while he remains temporarily unable to work. He will still have a right to reside as a worker in these circumstances. is involuntarily unemployed after having been employed in the UK and is registered as a jobseeker with the Social Security Agency and she/he was employed for a year or more in which case she/he will retain worker status for six months, and longer if she/he can show compelling evidence of continuing to seek work and having a genuine chance of getting employment; although if the person has worked for less than six months, worker status will only be retained for six months during a period of involuntary unemployment; or is undertaking vocational training. NOTE: Before arguing that a person has retained worker status, consider whether she/he may still be a worker, for example on unpaid maternity or sick leave but still engaged under a contract of employment.

47 Migrants and benefits Page 47 NOTE: When Universal Credit is introduced, some time in 2014, a person with a right to reside as a person retaining worker status while involuntarily unemployed and registered as a jobseeker will not be exempt from the universal credit work related requirements even if she/he would otherwise fall into an exempt group. Contact the Law Centre s advice line where this arises for further advice Worker status and pregnancy and childbirth Advisers should consider carefully whether a person remains a worker or self-employed person or retains worker or self-employed status during pregnancy and periods after childbirth. Worker status will be retained where the person is still in employment but in a period of maternity leave including unpaid. the person is temporarily incapable for work due to pregnancy or post pregnancy issues NOTE: It is unclear whether a person will retain worker status if she reasonably gives up work due to pregnancy or childbirth. this issue has been referred for guidance to the European Court of Justice by the British Supreme Court in the case of Jessy Saint Prix v SSWP 2012 (EC reference C-507/12.) Self-sufficient person In order to have a right to reside under EU law as a self-sufficient person a person must: have sufficient resources for her/himself and any family members so that they do not become an unreasonable burden on the UK social assistance system. This is interpreted as having an income in excess of a person s applicable amount for means- tested benefits plus housing costs. However, even if a person s income is less than this, it will be necessary to look at her/his personal facts, for example whether there is a temporary reduction in income and whether she/he is provided with free accommodation by family or friends;

48 Page 48 Migrants and benefits have comprehensive sickness insurance. This may be satisfied by a person who has private health insurance or if the UK can be reimbursed by another state for the cost of NHS services. This will usually apply where EU Regulation 883/2004 on the co-ordination of social security systems applies and another member state continues to be the competent state. Advisers should contact Law Centre (NI) for further advice where claimants are affected by this rule as arguments can be made that the right to access NHS treatment under EU law may satisfy this requirement Student Special rules apply to Croatian nationals who may have a right to reside as a student. Otherwise an EEA national who is a student will have a right to reside on that basis where she/he is: is enrolled as a student at a government accredited college; provides an assurance at the outset of sufficient funds for her/himself and family not to become a burden on UK social assistance during period of study; and has comprehensive sickness insurance Permanent right of residence The right to permanent residence was introduced under EU law on 30 April 2006, however periods of lawful residence in the UK prior to that date can be considered when determining whether a person has met the requirements for permanent residence. The Immigration (EEA) Regulations 2006 expressly exclude consideration of time spent on the basis of having a derived right to reside (see section on derivative right of residence below) when calculating required periods of residence. Law Centre NI welcomes referrals of cases where this issue arises. Once acquired, permanent residence will only be lost by absence from the UK for a period of more than two consecutive years. A person has a permanent right of residence in the UK under EU law if she/he has resided legally in the UK for a continuous period of five years as a:

49 Migrants and benefits Page 49 worker; self-employed person; person retaining worker/ self-employed status; self-sufficient person; student; or family member of such a person. Periods of jobseeking mixed with periods of work will normally count towards the period of five years Family members and permanent residence A family member of a person with a permanent right of residence has a right to reside for as long as she remains a family member. After five years of being a family member of a person with a permanent right of residence the family member will have permanent residence herself/himself. Periods of residence as a family member may be added to other periods as a qualified person to satisfy the five year requirement for permanent residence Permanent residence and exceptions to the five year requirement A person has a permanent right of residence and is exempt from the habitual residence test if she/he is a: worker or self-employed person who ceases activity and: has reached retirement age or taken early retirement and either worked in the UK for the preceding year and lived in the UK for more than three years continuously or is a person who has a spouse or civil partner who is a UK national; or has stopped working in UK due to a permanent incapacity and has a spouse or civil partner who is a UK national, or resided continuously in the UK for more than two years or the incapacity was because of an accident at work or occupational disease that led to benefit entitlement; EXAMPLE Pablo is a Spanish EEA national. He took a job in the UK but in his first week at work was run over by a forklift lorry and he is now entitled to Industrial

50 Page 50 Migrants and benefits Disablement Benefit due to the permanent disability he incurred. He will be entitled to a permanent right of residence and will meet the habitual residence and right to reside rules for Income Support, Income-related Employment and Support Allowance, Pension Credit and Housing Benefit. or has worked and resided in the UK for three years and then worked in another member state and returned to the UK at least once a week; or the family member of a worker or self-employed person in any of the above groups (see , first bullet point) and lives with that person in the UK; EXAMPLE Pablo s daughter is aged eighteen and has just had a baby. She will have a right to reside for Income Support or Income-related Employment and Support Allowance as the family member of a person with a right to reside until she is 21. She will then have to demonstrate her own right to reside unless she can show that she remains dependent on her father, and she may have to claim Jobseeker s Allowance for herself. the family member of a worker or self-employed person who died while working who had not attained permanent residence; and: she/he had lived in the UK for two years; or the death resulted from an accident at work or occupational disease; or she/he lost UK nationality as a result of the marriage Family members and right to reside family breakdown Where family breakdown occurs, careful consideration needs to be given to the right to reside status of the family members of the person who had a right to reside under European law, who is referred to as the qualified person. This commonly arises where a person has to make a claim to benefits as she/he is no longer being maintained by the former partner who has a right to reside. Advisers should carefully consider the rules about right to reside in case of family breakdown set out below (see to ). The rules are complicated and in some cases EU law rights under EU Directive 2004/38 are more generous than under the Immigration (EEA) Regulations 2006.

51 Migrants and benefits Page 51 The Law Centre welcomes referrals of cases where such issues arise. Advisers should contact the Law Centre s advice line directly Family members and right to reside death of qualified person Where a person is the family member of an EEA national who was a qualified person or a person with permanent residence and that EEA national has died, she/he will have a right to reside in the UK if she/he is an EEA national. However, she/he will have to satisfy rules on being a qualified person to obtain permanent residence. If the family member is a non EEA national then she/he will have a right to reside after the qualified person dies if she/he: resided in UK with a right to reside for at least one year before that person died; and would qualify as a worker or self-employed or self-sufficient person if she/he was an EEA national; or is she/he is the child/ grandchild of the qualified person/spouse/civil partner and was in education at the time the person died and remains in education; or is the parent with custody of a child in education (see above bullet point) Family members and right to reside qualified person leaves UK A family member may retain a right to reside where the qualified person or person with permanent residence leaves the UK if she/he is an EEA national. If the abandoned family member is a non EEA national she/he will have a right to reside if: she/he is the a grand/child of the qualified person (or her/his spouse or civil partner) and was in education immediately before that person left the UK and remains in education; or she/he is the parent with custody of a child who was in education immediately before the qualified person left the UK and the child remains in education.

52 Page 52 Migrants and benefits EXAMPLE Aneta is an EEA Hungarian national. She has been residing in Northern Ireland for two years with her husband who was lawfully working and their six children. Her husband has left her and she believes he has left the country. If she has a child under seven, she will be able to claim means-tested benefits. Otherwise, she may have a right to reside for Income-based Jobseeker s Allowance or Income-related Employment and Support Allowance Family members and right to reside breakdown of marriage or civil partnership A spouse/civil partner of a qualified person will continue to be treated as that person s family member until the date of any divorce/legal termination. EXAMPLE Dorothy is the Canadian wife of an Irish national who is working in Northern Ireland. She separates from her husband two months after she arrives in Northern Ireland. Her husband is a very violent man and she had to seek refuge with Women s Aid. She is 63 and will have a right to reside for State Pension Credit and Housing Benefit as she remains the family member of an EEA worker until the date of any divorce. After divorce/legal termination, a former spouse/civil partner may continue to have a right to reside: if she/he is an EEA national; or if not an EEA national, if she/he was residing in UK at the date of divorce/termination and: the marriage/ civil partnership had lasted at least three years with both parties living in the UK for at least one of those years; or she/he has custody of a qualified person s child; or she/he has right of access to the qualified person s child which a court has directed must take place in the UK; or her/his right of residence in the UK is justified by particularly difficult circumstances such as domestic violence during the relationship.

53 Migrants and benefits Page 53 EXAMPLE Dorothy (see example above) is now divorced. She will have a right to reside as her marriage ended due to domestic violence. She will be able to claim State Pension Credit and Housing Benefit. Before such a person will obtain permanent residence, she/he will have to satisfy the rules for permanent residence Family members who retain a right of residence - Permanent residence Where a person has a right to reside on the basis of retaining right to reside in the above three groups (see to ), it will not be possible to obtain permanent residence status unless the person is a worker, self-employed, self-sufficient or the family member of such a person Derivative right of residence In the limited circumstances that are set out below (see to ), it will be possible for a person to have a right to reside which is based on another person s right to reside but is not simply through being a family member. This is a derivative right to reside. Importantly, the Immigration (EEA) Regulations 2006 state that residence in the UK as a result of a derivative right to reside will not count towards residence for permanent right of residence. Law Centre (NI) welcomes referrals of cases where this issue arises Child/primary carer of a child of a former worker if the child is in education. This can apply to Bulgarian, Romanian and Croatian nationals as well as non EEA nationals. It will apply where: a child is a child of an EEA national who was a worker in the UK; and the child is in the UK and is in education; and

54 Page 54 Migrants and benefits the person is the primary carer of such a child; and the child would be unable to continue her/his education if the primary carer was required to leave the UK. EXAMPLE Barbara is an EEA Polish national. Her marriage has broken down and she has become very depressed. She has a child in secondary school. Her husband worked briefly in registered work in 2010 but then struggled to find work, became depressed and left the household. Barbara will have a right to reside for Incomerelated Employment and Support Allowance and Housing Benefit as the primary carer of a child of a former worker who is in education. Barbara should consider claiming Jobseeker s Allowance in the future as the right to reside as a primary carer will not count towards the required period for permanent residence Primary carer of an EEA national child who is self sufficient This can apply to Croatian nationals as well as non EEA nationals. It will apply where: the EEA national is under eighteen; and is residing in the UK as a self-sufficient person; and would be unable to remain in the UK if the primary carer was required to leave Primary carer of a British child This can apply to Croatian as well as non EEA nationals. It will apply where: the British citizen is under eighteen and residing in the UK; and the British citizen would be unable to remain in the UK if the primary carer had to leave the UK.

55 Migrants and benefits Page Other rights of residence under EU law If a person does not come within one of the categories set out above, it may be possible to argue in exceptional circumstances for a right to reside based on her/his EU citizenship under Article 21 of the Treaty on the Functioning of the EU. This will only apply to EU nationals, but will include Croatian nationals. Advisers should contact the Law Centre s advice line where EU nationals have been refused benefits on grounds of right to reside What to do if a person is found not to be a person with a right to reside If a person is refused benefit on grounds of right to reside, seek specialist advice as this is an area of law where case law is relevant and constantly evolving. The Law Centre advice line can provide such specialist advice. Advisers will need to consider whether, on further exploration of the facts of the case, the person can be brought within one of the groups regarded as having a right to reside. There is further information above (see ) on specific key categories. Seek further advice if a person cannot be brought within these categories as it may be possible to make arguments for a right to reside outside these categories. If a person is ineligible for benefit as a result of not having a right to reside, contact the Law Centre for advice on possible alternative support from social services pending appeal. The Law Centre is looking for cases to challenge the lack of interim payments of benefits for EEA nationals pending right to reside appeals.

56 Page 56 Migrants and benefits 2.2 Ordinary residence and right to reside test - Child Benefit and Child Tax Credit An Ordinary residence and Right to Reside test applies to: Child Benefit Child Tax Credit The rules set out in relation to right to reside above will apply to Child Benefit and to Child Tax Credit. However, a social security commissioner has decided that in the case of EEA nationals the ordinary residence and right to reside rule for Child Benefit is unlawful direct discrimination under EU law. This case is currently being appealed to the Court of Appeal in Northern Ireland. Advisers should contact the Law Centre s advice line where an EEA national is refused Child Benefit or Child Tax Credit on ordinary residence and right to reside grounds. Ordinary residence is not defined in legislation. Ordinary residence tends to be much less problematic in practice than the habitual residence requirement which is covered at section 2.1. A person will generally be regarded as ordinarily resident if she/he has a home in Northern Ireland and lives there, whether it is for a short or long period Initial three month right of residence child benefit and child tax credit The initial three month right of residence will satisfy the right to reside test for child benefit and child tax credit. This will also apply to Croatian nationals. However once the initial three month period ends the person s entitlement to Child Benefit and Child Tax Credit will end unless she/he can come within one of the other categories of right to reside set out at section EXAMPLE Bogdan is a Croatian EEA national. He recently arrived in Northern Ireland with his wife and child and intends to look for authorized work. Bogdan will be able to claim Child Benefit and Child Tax Credit during the initial three-month period of his

57 Migrants and benefits Page 57 residence. After that date he will have to establish a right to reside on some other ground for example as a self-employed person. 2.3 Ordinary residence and past presence rules: Attendance Allowance, Disability Living Allowance, Carer s Allowance At the time of writing, these benefits require that a person: is present in Northern Ireland; and has been present in Northern Ireland for 26 weeks out of the 52 weeks prior to making the claim; and is ordinarily resident in Northern Ireland; and that the UK is the competent state for the payment of sickness benefits to the person under EU law. In some cases, it is possible to rely on EU law to export these benefits to another EEA member state and also to use periods of residence in another member state to satisfy these residence rules. There are plans to change the residence rules for these benefits at some time in 2014 to require that a person: is present in Northern Ireland; has been present for 104 out of the 156 weeks prior to making the claim; and is habitually resident in the common travel area. Similar rules will apply to Personal Independence Payment, a benefit which will replace Disability Living Allowance for working age claimants some time in 2014, as part of welfare reform.

58 Page 58 Migrants and benefits 2.4 Contribution-based benefits and employment related benefits and residence Contributory benefits such as Contribution-based Jobseeker s Allowance, Contribution-based Employment and Support Allowance and State Retirement Pension (except category D) do not have residence conditions. Likewise, employment related benefits such as Maternity Allowance and Industrial Injuries Benefits do not have residence conditions. However, these benefits generally require presence in Northern Ireland and may be affected if a person goes abroad. There are no residence or presence conditions for Statutory Sick Pay, Statutory Maternity Pay, Statutory Paternity Pay or Statutory Adoption Pay.

59 Migrants and benefits Page European Union regulation on co-ordination of social security systems 3.1 Introduction European social security rules aim to ensure that EEA nationals and their family members who move between EEA states exercising EU Treaty rights do not lose out on benefit entitlement. The main EU social security rules are set out in EC Regulation 883/2004, which co-ordinates social security systems in the EU. Member states decide the benefits available in their own state and the conditions of entitlement to them. Rules under EC Regulation 883/2004 allow a person moving between EEA states to export certain benefits, to rely on tax and contributions paid in other member states to satisfy contribution conditions, for example for Contribution-based Employment and Support Allowance and also to rely on periods of residence in other EEA states to satisfy past presence conditions. Regulation 883/2004 applies without restriction to Croatian nationals. 3.2 Who is covered by Regulation 883/2004? Personal scope To be covered by Regulation 883/2004, a person must be within the personal scope of the Regulation. This covers a person who is subject to the legislation of one or more member states and who is: an EEA national; or a refugee; or a stateless person; or a family member or a widow/er, surviving civil partner of one of the above.

60 Page 60 Migrants and benefits This means that not only employees, self-employed persons, civil servants, students and pensioners but also non-active persons are protected by Regulation 883/ What is covered by Regulation 883/2004? Material scope Under the Regulation, benefits are divided into three types depending on conditions of eligibility: social security benefits; special non-contributory benefits; social and medical assistance. 3.4 Social security benefits under EC Regulation 883/2004 Social security benefits have the most rights and tend to be exportable. These are generally contribution-based benefits. Special non-contributory benefits are paid in the country of residence. Social security benefits are categorized into groups relating to the risk that they are designed to cover. These are: sickness; maternity; invalidity; old age; pre-retirement; survivors; accidents at work and occupational diseases; unemployment; family benefits.

61 Migrants and benefits Page 61 Special non-contributory benefits These cannot be exported. They are benefits that are not based on contributions and must be listed by the UK as being special non-contributory benefits. At present, in the UK these are: Disability Living Allowance mobility component (however, the care component of Disability Living Allowance is treated differently and can be exported); Income-related Employment and Support Allowance; Income-based Jobseeker s Allowance; State Pension Credit. It is expected that the mobility component of Personal Independence Payment will also be listed as a special non-contributory benefit once that benefit is introduced in Northern Ireland. 3.5 Competent state rules As a general rule, a person will be subject to the legislation of a single member state only. This will be the person s competent state. The competent state is the state in which the person: is employed or self-employed; or resident and from which she/he receives an unemployment benefit; or a civil servant; or a conscripted member of armed forces or person doing compulsory civilian service. If a person works in two or more member states: the member state of residence is the competent state if the person pursues a substantial part of activities there; if a person s employer s business is in one member state and she/he is sent to work in another member state for up to 24 months, the first member state remains the competent state;

62 Page 62 Migrants and benefits if a person is self-employed in one member state and goes abroad to provide similar services for up to 24 months, the first state will remain the competent state. If none of the above apply, the competent state will be the one in which the person is resident. Residence in Regulation 883/2004 means habitual residence. However, it has its own EU law interpretation and application and will involve consideration of the person s centre of interest. If more than one state may be the member state, the co-ordination rules provide that they must come to an agreement on the issue taking account all of the person s circumstances, including: the nature of activity pursued including location, stability and duration; family status and ties; unpaid activity including voluntary work; in the case of students, source of income; housing situation; the member state in which the person is deemed to reside for tax purposes; the person s intentions. When will the UK remain the competent state? If the UK is the competent state for a person because she/he last worked in the UK or is resident in the UK, the UK will remain the competent state until the person: starts work in another EEA member state; receives a pension from another member state and requests that UK cease to be competent state; in some cases, moves to another EEA member state and becomes resident there. In general, if a person is entitled to a UK social security benefit when she/he moves to another EEA state, the UK remains the competent state for paying benefit until the person becomes employed or self-employed in the other member state or, in some circumstances, starts receiving benefit there.

63 Migrants and benefits Page Equal treatment Equal treatment is a fundamental principle of EU law. This prohibits direct discrimination as well as indirect discrimination where the indirect discrimination cannot be justified. The European Commission is currently in a dispute with the UK as to whether the right to reside rule amounts to unlawful discrimination in breach of the principle of equal treatment. If a person is covered by Regulation 883/2004, she/he is entitled to the same benefits under the legislation of the competent state as a national of that state. The competent state must provide equal treatment of benefits, income and circumstances, so that equivalent benefits should lead to equal entitlement for example to a disability premium. 3.7 Aggregation This is a key principle of co-ordination rules. It means that a person is entitled to add together periods of national insurance, residence, employment or self-employment in other member states to satisfy rules on entitlement. For example a person seeking to claim Contribution-based Employment and Support Allowance can rely on contributions paid in other member states to satisfy the contribution conditions. The principle is that a person should not lose out because she/he has moved within the EEA. EXAMPLE Marek is an EEA national. In 2012 he moved from Slovakia to work in Northern Ireland. He was involved in an accident and has not been able to work since March Marek is entitled to Contribution based Employment and Support Allowance

64 Page 64 Migrants and benefits as aggregation rules mean that he is able to rely on contributions paid while working in Slovakia in the tax years ending April 2012 and April Apportionment This means that although the benefit is paid by the competent state, sometimes all the states in which the person has worked will contribute to the payment of the benefit based on the proportion of the person s working life actually worked there. 3.9 Exporting benefits under EC Regulation 883/ Benefits exportable on an indefinite basis The following benefits are fully exportable on an indefinite basis: invalidity benefits: long term Incapacity Benefit; Severe Disablement Allowance; Contribution-based Employment and Support Allowance after assessment phase and arguably Contribution-based and Income-related Employment and Support Allowance during assessment phase; additional pension; for those in receipt, prior to 1 June 1992, of Attendance Allowance, Disability Living Allowance care and mobility and Carer s Allowance; old age benefits: Graduated Retirement Benefit; Winter Fuel Payment; age additions and increments to pensions; survivors cash benefits: bereavement benefits; pensions for accidents or occupational diseases: Industrial Injuries Disablement Benefit; Reduced Earnings Allowance;

65 Migrants and benefits Page 65 Constant Attendance Allowance; Exceptionally Severe Disablement Allowance Benefits exportable for a limited period or subject to restrictions The following benefits can be exported for a limited period or are subject to restrictions: unemployment benefits (see ): Contribution-based Jobseeker s Allowance but it is arguable that Income-based Jobseeker s Allowance should also be covered; sickness, maternity and paternity benefits (see ): Attendance Allowance; Carer s Allowance; Disability Living Allowance care component; Personal Independence Payment daily living component; Statutory Sick Pay; Contribution-based Employment and Support Allowance assessment phase; Maternity Allowance; Statutory Maternity Pay; Statutory Paternity Pay; family benefits (see and ): Child Benefit; Child Tax Credit; Guardian s Allowance; child dependants additions in other benefits Exporting Contribution-based Jobseeker s Allowance under EU co-ordination rules If the UK is a person s competent state, she/he can be paid Contribution-based Jobseeker s Allowance for up to three months if: she/he satisfied the Contribution-based Jobseeker s Allowance rules for at least four weeks before she/he left the UK unless authorized by the Department to go abroad before having claimed for four weeks;

66 Page 66 Migrants and benefits she/he has registered as a person seeking work in the EEA state that she/he goes to within seven days and complies with its procedures. Under the co-ordination rules, other nationals covered will also be able to continue to claim unemployment benefits from their competent state for up to three months after registering as a person seeking work in the UK. EXAMPLE After she was made redundant in the economic downturn, Loreta claimed an unemployment benefit in the Republic of Ireland. She notified the unemployment office of her intention to move to Belfast to seek work. She registered with the Jobs and Benefits Office in Belfast within seven days of her arrival. Loreta will continue to receive unemployment benefits for at least three months from the Republic of Ireland. NOTE: The UK has classified Income based Jobseeker s Allowance as a special non contributory benefit which means that it cannot be exported. This restriction may be subject to a legal challenge. Advisers should contact the Law Centre s advice line where this arises Exporting Disability Living Allowance, Attendance Allowance or Carer s Allowance under the co-ordination rules In C299/05, the Court of Justice of the EU decided that the care component of Disability Living Allowance could be exported within the EU where the UK remained the person s competent state. In case C537/09, the Court of Justice of the EU decided that the mobility component of Disability Living Allowance is not covered by the co-ordination Regulation and cannot be exported out of the UK. A person will be able to export the care component of Disability Living Allowance, Attendance Allowance or Carer s Allowance where the UK remains her/his competent state. This will generally be satisfied where the person is also exporting a contribution-based

67 Migrants and benefits Page 67 benefit such as State Retirement Pension or Contribution-based Employment and Support Allowance. See section 3.5 for rules on competent state. EXAMPLE Susan receives Contribution-based Employment and Support Allowance, Industrial Disablement Benefit and Disability Living Allowance higher rate mobility component and highest rate care component from the UK. She decides to move to the Republic of Ireland with her civil partner who has taken up employment there. Susan will be able to continue to receive contribution-based Employment and Support Allowance, Industrial Disablement Benefit and the care component of Disability Living Allowance when she moves to the Republic of Ireland but she will no longer receive the mobility component of Disability Living Allowance Exporting family benefits Child Benefit; Child Tax Credit; Guardian s Allowance; child dependants additions in other benefits. Family benefits can be claimed for family members who are living in another EEA state, for example an EU worker is able to claim Child Benefit for dependent children who live in another EEA state. EXAMPLE Iveta and Marius are EEA nationals. They are self-employed in Northern Ireland. Their four children reside in Latvia with their grandmother as they wish to complete their education in Latvia. The couple is entitled to claim Child Benefit and Child Tax Credit for the children who reside in Latvia. Also family benefits can be exported. If an EEA national is entitled to Child Benefit and moves within the EU to work, she/he will be able to continue to claim Child Benefit and Child Tax Credit from the UK.

68 Page 68 Migrants and benefits Entitlement to family benefits in more than one state Special rules govern the payment of benefits where there would be entitlement in more than one member state. If a person is entitled to family benefits under the legislation of more than one state then the benefit will be paid by the priority state as determined by Regulation 883/2004 and may be topped up if necessary by the state that pays the higher family benefit Overlapping benefit rules It is a general principle that a person cannot use insurance for the one period to gain entitlement to benefit in more than one member state. This principle applies with aggregation and apportionment. However, member states are not allowed to apply provisions preventing the overlapping of their own benefits with those of other member states if it would have reduced what the person would have received from her/his years of contributions in the first member state alone. So, for example, a person may receive retirement pensions from the UK and another member state based upon her/his contributions paid in that state.

69 Migrants and benefits Page 69 Further information Useful links Law Centre (NI) Encyclopedia of Rights, information on benefits and tax credits, immigration and family relationships, employment rights, and rights in community care: NI Direct, the official government website for Northern Ireland: Belfast Migrant Centre / Northern Ireland Council for Ethnic Minorities: Northern Ireland Community of Refugees and Asylum Seekers: For a list of migrant support groups in Northern Ireland and of relevant government organisations: Further reading Welfare Benefits and Tax Credits Handbook 2013/2014, Child Poverty Action Group, 94 White Lion, Street, London N1 9PF Social Security Legislation 2013/2014, Volumes I and III published by Sweet and Maxwell of 100 Avenue Road, London NW3 3PF Your Rights in Northern Ireland a guide for migrant workers, 3 rd edition. Published by Law Centre (NI) and Northern Ireland Human Rights Commission with support from OFMDFM. Available on Free Movement of Persons in the European Union, 2 nd edition. Published by Thomson, Sweet and Maxwell 2012

70 Page 70 Migrants and benefits Appendix 1 Rules affecting Croatian nationals Croatia joined the EU on 1 July Special rules restrict the access of Croatian nationals to the labour market in the UK until 30 June These rules may be extended up to two years but must end before 30 June Current restrictions on residence rights of Croatian nationals A Croatian national subject to worker authorization has limited residence rights. She/he: will not have the right to reside as a jobseeker; will only have worker status if she/he is a Croatian national requiring authorization, where she/he has a worker authorization document and is working in accordance with it; will not retain worker status while still a person covered by the restrictions. Croatian nationals who are not subject to the worker authorization rules The rules restricting the access of Croatian nationals to the labour market of the UK begin on 1 July 2013 and will end on 30 June However, these restrictions may be extended to 30 June A person will not be subject to worker authorization rules if she/he comes within the following categories. She/he: has (or had on 30 June 2013) leave to enter or remain with no restriction on employment; was legally working in the UK for twelve months without breaks of more than 30 days up to 30 June 2013; has legally worked for twelve months beginning before or after 30 June 2013 without breaks of more than 30 days; is a posted worker, a member/ family member of a diplomatic mission; has dual nationality with the UK or another (non A2) EEA member state; is the spouse/ civil partner of a UK national or person settled in UK;

71 Migrants and benefits Page 71 is the spouse/civil partner or child under 18 of a person with leave to enter/remain in UK that allows employment; has a permanent right of residence; is a student with a registration certificate including a statement that she/he shall not work for more than 20 hours per week unless she/he is on a course of vocational training and is working as part of that training or is working during vacation; is the family member of an EEA national who has a right to reside, except where the EEA national is an A2 or Croatian national subject to worker authorization; is the family member of an A2 national subject to worker authorization who has a right to reside as a worker, student, self-employed person or self-sufficient person; is a highly skilled person and holds an EEA registration certificate confirming unconditional access to the UK labour market. Croatian nationals and lawful work Croatian nationals have a right to be self-employed without any special rules applying. Where a Croatian national wishes to take a job, check whether she/he will come within one of the groups above who are not covered by the restrictions, for example where she/he has completed twelve months lawful work or is the family member of an EEA national with a right to reside. A Croatian national who is a student and has an EEA registration certificate that states he/she may work in the UK for not more than 20 hours per week will not be subject to worker authorization rules while working within those limits. Also such a person will have a right to work more than 20 hours per week during vacation periods and also during term time if the course is a vocational one and the hours worked are in the course of study. A Croatian national who ceases to be such a student will not be a worker requiring authorization during a run-on period of four months. If the person is covered by the restrictions she/he: will not have a right to reside as a jobseeker for benefit purposes;

72 Page 72 Migrants and benefits will not retain worker status where employment ends while she/he is still covered by the restrictions; will only be able to work legally if she/he has a worker authorization document and is working in accordance with it. If the Croatian national is still under a contract of employment, for example during periods of sick leave or maternity leave (including unpaid leave), she/he may still be a worker.

73 Migrants and benefits Page 73 Appendix 2 Rules that affected nationals of Bulgaria and Romania (A2 states) until December 2013 Bulgaria and Romania joined the EU on 1 January Special rules applied restricting the access of Bulgarians and Romanians to the labour market in the UK until 31 December 2013 when they came to an end. From 1 January 2014, Bulgarians and Romanians have full EU rights. The restrictions that applied are set out below as they may be relevant to determining whether a person from Bulgaria or Romania had a lawful right of residence before 31 December 2013 and this will be relevant to entitlement to permanent residence status. Restrictions on residence rights of Bulgarians and Romanians up to 31 December 2013 A Bulgarian or Romanian national subject to worker authorization, had limited residence rights. She/he: did not have the right to reside as a jobseeker; only had worker status if she/he was a Bulgarian or Romanian citizen requiring authorization, where she/he had a worker authorization document and was working in accordance with it; did not retain worker status while still a person covered by the restrictions. Bulgarians and Romanians who were not subject to the worker authorization rules The rules restricting the access of Bulgarian and Romanian nationals to the labour market ended on 31 December A person was not subject to worker authorization rules if she/he came within the following categories. She/he: had (or had on 31 December 2006) leave to enter or remain with no restriction on employment;

74 Page 74 Migrants and benefits was legally working in the UK for twelve months without breaks of more than 30 days up to 31 December 2006; had legally worked for twelve months beginning before or after 31 December 2006 without breaks of more than 30 days in total; was a posted worker, a member/ family member of a diplomatic mission; had dual nationality with the UK or another EEA member state; was the spouse/ civil partner of a UK national or person settled in UK; was the spouse/civil partner or child under eighteen of a person with leave to enter/remain in UK that allowed employment; had a permanent right of residence; was a student with a registration certificate including a statement that she/he would not work for more than 20 hours per week; was the family member of an EEA national who had a right to reside, except where the EEA national was a Bulgarian or Romanian national subject to worker authorization; was the family member of a Bulgarian or Romanian national subject to worker authorization who had a right to reside as a worker, student, self-employed person or self-sufficient person; was a highly skilled person. This applied where the person satisfied Immigration Rules that applied on 1 January 2007 for entering the UK on that basis and the person had been awarded a qualification at degree level or higher in the UK and within twelve months of this had applied for a registration certificate confirming unconditional access to the labour market. Bulgarian and Romanian nationals and lawful work prior to 1 Jan 2014 Prior to 1 January 2014, Bulgarian and Romanian nationals had a right to be self-employed without any special rules applying. A Bulgarian or Romanian national who was a student and had an EEA registration certificate that stated she/he may work in the UK for not more than 20 hours per week was not subject to worker authorization rules while working within those limits. Also such a person had a right to work more than 20 hours per week during vacation periods and also during term time if the course was a vocational one and the hours worked were in the course of study.

75 Migrants and benefits Page 75 An A2 national who ceased to be such a student was not a worker requiring authorization during a run-on period of four months. If the person was covered by the restrictions, she/he: did not have a right to reside as a jobseeker for benefit purposes; did not retain worker status where employment ended while she/he was still covered by the restrictions; was only be able to work legally if while working she/he had a worker authorization document and was working in accordance with it. If the Bulgarian or Romanian national was still under a contract of employment, for example during periods of sick leave or maternity leave (including unpaid leave), she/he was still a worker. This document contains complex legal concepts and is targeted at advisers. Anyone seeking further advice and information may contact the Law Centre s advice line: or Monday to Friday, 9.30am to 1pm

76 Migrants and benefits an advisers guide How does immigration status affect a person s entitlement to benefit? What is habitual residence? What does right to reside mean for benefit entitlement? Migrants and Benefits deals with these and other common issues that arise where migrants need advice on benefit entitlement. The guide is written for advisers and contains tips for dealing with difficult situations and practical guidance. Belfast Integration and Participation Project Belfast Integration and Participation Project (BIPP) is a partnership between Belfast City Council, GEMS NI, Law Centre (NI) and South Belfast Roundtable. BIPP aims to improve the integration and participation of migrant and minority ethnic communities in the City. Law Centre (NI) Law Centre (NI) provides specialist legal support to advice giving organisations and disadvantaged individuals in community care, employment, immigration, social security and mental health. We also support the work of advice agencies through advice, casework, training, information, publications and policy development. Central Office 124 Donegall Street Belfast, BT1 2GY Tel: Fax: Textphone: [email protected] Web: Western Area Office 9 Clarendon Street Derry, BT48 7EP Tel: Fax: [email protected] Disclaimer: Although every effort is made to ensure the information on these pages is accurate and up-todate, we cannot be held liable for any inaccuracies and their consequences. The information should not be treated as a complete and authoritative statement of the law. Law Centre (NI) only operates within Northern Ireland and the information in this document is only relevant to Northern Ireland law. When reading Law Centre documents, please pay attention to their date of publication as legislation may have changed since they were published. Law Centre (NI) and Belfast Integration and Participation Project 2014 ISBN This project is supported under the Belfast Peace III Plan by the European Union s European Regional Development Fund through the Peace III Programme