Benefits for EEA migrant workers – the ‘right to reside’ test

We have produced an advice document for EEA migrant workers and those who are looking to assist anyone in that position.  It covers the rights of EEA workers in different circumstances. You can download this by clicking the link below; alternatively, it is pasted in full below.

Benefits for EEA migrant workers

Benefits for EEA migrant workers – the ‘right to reside’ test

When claiming benefits, your rights may be very different depending on what kind of migrant you are. For example you may be a highly skilled worker from abroad on a work visa, in which case you will have ‘no recourse to public funds’ and claiming benefit would risk your stay in the UK. This leaflet deals with EEA workers only and does not deal with workers from visa national countries, British or Commonwealth citizens with ‘right of abode’, or refugees.

If you are a worker, the European Union unambiguously confirms in article 45 your right to be here and to work here. However, various UK governments have sought to restrict your access to benefits on a number of grounds, to which the European Court of Justice took the UK government to court in 2013.

Even though you are lawfully present in the UK, in order to claim benefits you must meet a difficult set of conditions called the “right to reside” or “habitual residence” tests. The terminology is unhelpful, because even if you fail the right to reside test, you in fact have a right to reside in the UK – the term ‘right to reside’ only regards your right to benefits. These tests were first introduced in 1994 to prevent perceived ‘benefits tourism’ (although the fear at that time was not EU workers), but under each successive government they have become more and more stringent and complicated.

As it stands, if you are an EEA National you need to be in one of the following categories before you can claim benefit:

Jobseeker

You have some rights to claim Jobseekers Allowance (and Housing Benefit, and child related benefits) if you have not worked in the UK before. You have to show that you are:

  • Seeking employment, and
  • Have a ‘genuine chance of being engaged’, and
  • If jobseeking more than 91 days, you have ‘compelling’ reasons that you will be in employment

If you are refused Jobseekers Allowance and you think you are in one of the above categories, you have a right to appeal the decision.

If it is your first three months stay in the UK, you may find your claim is refused as you are not ‘habitually resident’, meaning your main home is still your country of origin. You have a right to appeal the decision.

Worker

You are seen as a worker if you are:

  1. In an employment relationship, and
  2. The work you do is ‘genuine and effective’ rather than ‘marginal and ancillary’. Factors include:
    – The length of the employment (one week is probably not ‘genuine and effective’)
    – The number of hours worked (5.5 hours per week may be the minimum to be seen to be a worker, and more than 16 is probably enough)
    – Your earnings (for example if board and lodgings are deducted from your wage and this leaves you with virtually no pay, you may not be seen to be a worker) and the regularity of your work

This can include self-employed people.

If you are a worker, you can claim in-work benefits such as Working Tax Credit and Housing Benefit, and child related benefits.

Retaining worker status

If your work ends, or you fall ill, etc, there are some circumstances in which you retain your worker status, and so can claim or can continue to claim benefit.

  • If you are ‘involuntarily unemployed’ and are claiming Jobseekers Allowance (payment of all benefits may only last for 6 months if you were previously employed for less than a year) or
  • You are temporarily unable to work because of an illness or accident (so if you fall permanently ill, your entitlement to benefit in the UK stops), or
  • You are undertaking vocational training, or
  • You have given up work because of the physical constraints of pregnancy or childbirth

This could include Income Support or Employment and Support Allowance for a temporary period.
Family member

You have a right to reside (and therefore a right to benefit) if you are a family member of any of the following, and they also fall in one of the categories above:

  • Spouse or civil partner of an EEA national
  • Child, grandchild or great-grandchild of an EEA national or their spouse/civil partner, and you are under 21 or you are their dependant
  • Parent, grandparent or great-grandparent of an EEA national, or their spouse/civil partner, and you are their dependent

If your family member’s right to reside is on the basis of a jobseeker, this will only give you rights to Jobseekers Allowance and child related benefits, and will not give you rights to Income Support, Employment and Support Allowance or Housing Benefit.

If you have separated from a partner and can’t get evidence of their work, you can ask the benefit authority to investigate their NI contributions as evidence they are in work. You may want to seek assistance in this.

If your family member loses their ‘right to reside’, you may lose it too, although there are exceptions to this (relating to death or children).
Derivative right to reside based on a child

You can have a right to reside based on a child’s right to reside if you are the primary carer of a child and the child would be unable to continue their education if you left the UK. You must have been a worker (unfortunately, self-employment does not count) while the child was in the UK, but that is the only condition.
Permanent right to reside

You have a permanent right to reside if you have been a worker, self-employed, self-sufficient, a student, or a ‘family member’ (as discussed above) for a continuous period of 5 years.
Other issues
If you leave the UK and come back, this can affect your right to reside. Also, there are special rules for people coming from Croatia, and people claiming Carer’s Allowance.
General Advice

Claiming JSA? DWP will only assume you are a Jobseeker
If you claim JSA, DWP will only assume your right to reside is as a jobseeker, and so will only give it to you for 3 or 6 months. You may have a right to reside on another ground (e.g. you are a family member of an EEA national with a right to reside, or you have a derivative right to reside based on your child’s education). DWP do no investigation of their own, and it is up to you to tell them.

You have a right of appeal
You have the right of appeal against any DWP, HMRC or Local Authority benefit decision. You have a one month deadline to appeal a decision, and must write to the department that sent you the decision to ask for ‘mandatory reconsideration’, with your reasons. If they refuse this, you can send the matter to a free and independent Tribunal. This can take a number of months, during which time you may be without any income.

Keep records of all your work for 5 years
When you work, keep all evidences of your work (every payment and payslip) for 5 years, as you may need to rely on this evidence in order to claim benefit for you or your children at a later date. It is not good enough to keep part records.

If requesting payslips might bring you into friction with your employer, you can obtain your income tax records from the HM Revenue and Customs Taxes Helpline
Tel: 0300 200 3300 (Monday to Friday from 8.00am to 8.00pm; Saturday from 8.00am to 4.00pm).
Risks

If you are an EU national, you cannot come to the UK and claim sickness benefits – you must have been in work first, and if you fall permanently ill while here, your entitlement to benefit for you and any children cease unless you have attained a ‘permanent right to reside’.

If you are an EU national with children, you are vulnerable to the fact that your right to reside for benefits purposes may be challenged, which could leave you and your family destitute. This is especially the case if you are claiming Jobseekers Allowance for more than 91 days.

A private landlord may only be able to evict after 8 weeks rent arrears, but this is not always the case.
Further help:

Leeds Citizens Advice
Tel 0113 223 4400 (Mon-Fri 9am – 5pm)
Open at 31 New York Street, LS2 7DT from 9am weekdays

The EU Rights Project – advice@riponcab.cabnet.org.uk

Age UK (if you are over 50)
0800 169 29 39 (8.00am – 7.00pm)

Scope/Dial (if you have a disability)
0808 800 33 33 (weekdays 9am to 5pm)

Archway (if you are aged 16 – 25)
0113 383 3900, 95 Roundhay Road, Leeds LS8 5AQ
The Resource Centre is open and staffed for drop-in every Monday and Thursday, from 10am – 6pm, every Tuesday from 10am – 8pm and every Friday from 10am – 5pm.

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