Right to Reside Test

The Right to Reside Test &
AIRE’s Experiences
1 March 2012
The AIRE Centre
Mission: To promote awareness of European law rights and
assist marginalised individuals and those in vulnerable
circumstances to assert those rights.
• Take cases to the European Court of Human Rights
(including cases on behalf of non-EU trafficking victims
facing expulsion).
• Provide free legal advice to individuals and their advisers
on their rights under EU law (mostly EU law on the free
movement of persons).
Who We Help
816 requests for specialist legal advice.
Approximately 85% of requests concern EEA
nationals and their family members, mainly:
• Residence documents
• Benefits
• Housing
• Expulsion
• NHS care or social services
Objectives of This Session
1. Familiarise you with the restrictions EEA
nationals in the UK face on accessing special
non-contributory benefits in the UK.
2. Provoke a conversation about how our UK
experience can improve your ability to help EEA
nationals in the Republic of Ireland.
Looking Through the Wrong End of
the Telescope
As a matter of EU law, EU citizens are supposed
to be treated the same way as British citizens
unless there is an exception allowing them to be
treated differently.
In UK law and practice, EU nationals are viewed
as foreigners and you have to justify equal
UK Benefits
Special non-contributory benefits to which the restrictions apply:
Income Support (lone parents)
State Pension Credit (pensioners)
Income-based Jobseeker’s Allowance (jobseekers)
Income-related Employment and Support Allowance (those unable to work)
Other social assistance benefits affected:
Housing Benefit
Council Tax Benefit
Working Tax Credit
Other Social Security Benefits Affected:
Child Benefit
Child Tax Credit
The Legislation
Regulation 21AA of the Income Support (General) Regulations 1987:
(1) ”Person from abroad” means, subject to the following provisions of this regulation, a claimant who is not habitually resident in the United
Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.
(2) No claimant shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland
unless he has a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland other
than a right to reside which falls within paragraph (3).
(3) A right to reside falls within this paragraph if it is one which exists by virtue of, or in accordance with, one or more of the following—
(a)regulation 13 of the Immigration (European Economic Area) Regulations 2006;
(b)regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the claimant is—
(i)a jobseeker for the purpose of the definition of “qualified person” in regulation 6(1) of those Regulations, or
(ii)a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker;
(c)Article 6 of Council Directive No. 2004/38/EC; or
(d)Article 39 of the Treaty establishing the European Community (in a case where the claimant is a person seeking work in the United
Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland).
(4) A claimant is not a person from abroad if he is—
(a)a worker for the purposes of Council Directive No. 2004/38/EC;
(b)a self-employed person for the purposes of that Directive;
(c)a person who retains a status referred to in sub-paragraph (a) or (b) pursuant to Article 7(3) of that Directive;
(d)a person who is a family member of a person referred to in sub-paragraph (a), (b) or (c) within the meaning of Article 2 of that Directive;
(e)a person who has a right to reside permanently in the United Kingdom by virtue of Article 17 of that Directive;
(f)a person who is an accession State worker requiring registration who is treated as a worker for the purpose of the definition of “qualified
person” in regulation 6(1) of the Immigration (European Economic Area) Regulations 2006 pursuant to regulation 5 of the Accession
(Immigration and Worker Registration) Regulations 2004;
How the Right-to-Reside Test Works
If you are a worker or self-employed (or have retained worker or
self-employed status), or are a permanent resident, or are the family
member of an EEA national in one of those categories, you will
generally pass the right-to-reside test (and indeed may be passported
through the whole habitual residence test). If you are a jobseeker,
you will also have a right-to-reside for the purposes of incomebased Jobseeker’s Allowance (although accession nationals do/did
not necessarily have the possibility of exercising a right to reside as
Anyone else will be told you ‘do not have a right to reside for
benefits purposes’.
The Test
Not a
Right to
The problem will almost always be the rightto-reside test.
Two Kinds of Challenges
Litigation in the UK courts
– major cases
• Abdirahman [2007]
EWCA Civ 697
• Kaczmarek [2008] EWCA
Civ 1310
• Zalewska [2008] UKHL
• Patmalniece [2011]
Complaint to the European
Commission from AIRE and
• June 2009 – initial complaint
• October 2009 – meeting with
the Commission
• February 2010 – Commission
view received
• June 2010 – LFN sent to UK
• September 2011 – reasoned
opinion sent to UK
• Now - ???
Pre-Patmalniece Cases
• Abdirahman: argued under articles 12 and 18
• Kaczmarek: similar, also refused.
• Zalewska: dealt with the Worker Registration
Scheme for A8 nationals, 3-2 judgment
finding that a victim of domestic violence
could be refused Income Support.
The argument was put forward that the right-to-reside test
(which British and Irish citizens, but not other EU
citizens, always pass) violates Article 3(1) of Regulation
1408/71 (now Article 4 of Regulation 883/04):
Subject to the special provisions of this Regulation,
persons resident in the territory of one of the Member
States to whom this Regulation applies shall be subject to
the same obligations and enjoy the same benefits under
the legislation of any Member State as the nationals of
that State.
Patmalniece - judgment
Their Lordships found unanimously that there was indirect discrimination
(unanimous), and found, 4-1, that the discrimination was justified.
[T]he Secretary of State's purpose was to protect the resources of the United
Kingdom against resort to benefit, or social tourism by persons who are not
economically or socially integrated with this country. This is not because of
their nationality or because of where they have come from. It is because of the
principle that only those who are economical or socially integrated with the
host Member State should have access to its social assistance system. The
principle, which I take from the decision in Trojani, is that it is open to
Member States to say that economical or social integration is required. A
person's nationality does, of course, have a bearing on whether that test can
be satisfied. But the justification itself is blind to the person's nationality. The
requirement that there must be a right to reside here applies to everyone,
irrespective of their nationality. (Lord Hope, § 52)
The Commission’s View – excerpt from February 2010 letter
Further Steps the
Commission has taken
July 2010 – the Commission sent a ‘letter of formal notice’ to the UK.
September 2011 (after Patmalniece) – the Commission sent a ‘reasoned
opinion’ to the UK, giving a deadline of end November 2011.
Article 258 of the Treaty on the Functioning of the European Union:
If the Commission considers that a Member State has failed to fulfil an
obligation under the Treaties, it shall deliver a reasoned opinion on the matter
after giving the State concerned the opportunity to
submit its observations.
If the State concerned does not comply with the opinion within the period laid
down by the Commission, the latter may bring the matter before the Court of
Justice of the European Union.
Consequences of the right-to-reside
• In London, it is estimated that between 25% and
40% of the homeless population are EU citizens
from the new Member States.
• Survivors of domestic violence, victims of
human trafficking, pregnant women, former
refugees, vulnerable minorities and people with
serious illnesses are left destitute.
• Homeless EEA nationals targeted for expulsion.
Case Studies
Mr B is from Latvia. He has lived in the UK, and worked
on and off, for over six years. He has drug-resistant
tuberculosis. He applied for income-related Employment
and Support Allowance and was refused. We are waiting
for his appeal before the first-tier tribunal to be decided.
Ms S is a French citizen married to a British Citizen. He
worked, but she never did. She has lived in the UK for
over five years. When her husband when to prison for one
month, she applied for Income Support and was refused.
Mr J is a Polish citizen who was self-employed for over a
year before his self-employed activity dried up. He sought
and was refused income-based Jobseeker’s Allowance.
What we are doing in the meantime…
• Trying to squeeze people into the right-toreside test.
• Trying to convince UK courts/tribunals to
refer matters to the Court of Justice of the EU.
Article 7(3) of Directive 2004/38
3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed
person shall retain the status of worker or self-employed person in the following circumstances:
(a) he/she is temporarily unable to work as the result of an illness or accident;
(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one
year and has registered as a job-seeker with the relevant employment office;
(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment
contract of less than a year or after having become involuntarily unemployed during the first twelve
months and has registered as a job-seeker with the relevant employment office. In this case, the status of
worker shall be retained for no less than six months;
(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of
the status of worker shall require the training to be related to the previous employment.
Some Cases – A2 Nationals & SelfEmployment
• Tilianu v SSWP [2010] EWCA Civ 1379 –
self-employed EEA nationals cannot retain
their status under Article 7(3)(b), (c) or (d)
• SSWP v AL [2010] UKUT 451 (AAC) – you
can still be self-employed even if your selfemployed activity has dried up
Article 16 of Directive 2004/38
1. Union citizens who have resided legally for a continuous period of five years in the
host Member State shall have the right of permanent residence there. This right shall
not be subject to the conditions provided for in Chapter III.
2. Paragraph 1 shall apply also to family members who are not nationals of a Member
State and have legally resided with the Union citizen in the host Member State for a
continuous period of five years.
3. Continuity of residence shall not be affected by temporary absences not exceeding a
total of six months a year, or by absences of a longer duration for compulsory military
service, or by one absence of a maximum of twelve consecutive months for important
reasons such as pregnancy and childbirth, serious illness, study or vocational training,
or a posting in another Member State or a third country.
4. Once acquired, the right of permanent residence shall be lost only through absence
from the host Member State for a period exceeding two consecutive years.
Permanent Residence Cases
• Lekpo-Bozua v London Borough of Hacnkey
[2010] EWCA Civ 909 – a student without
private sickness insurance did not acquire
permanent residence after five years
• Cases C-424&425/10 Ziolkowski: only
residence under Article 7 of Directive 2004/38
counts towards permanent residence
My contact information:
[email protected]

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