Transcript EU Law Issues of Claiming SNCBs in the UK and

EU Law Issues of Claiming SNCBs in
the UK and the Republic of Ireland
AIRE Centre – EU Law on Social
Welfare Benefits
7 February 2013
Objective for this Session
Re-orient your thinking about restrictions on EU
migrants accessing benefits in the UK and
Ireland, to encourage you to see things from an
EU law perspective.
2
SNCBs
United Kingdom
Ireland
• State Pension Credit
• Income-based Jobseeker’s
Allowance
• Disability Living Allowance
• Employment and Support
Allowance, Income Related
• (Income Support)
• Jobseekers Allowance
• State pension (non-contributory)
• Widow’s and Widower’s (noncontributory) pensions
• Disability Allowance
• Mobility Allowance
• Blind Pension
3
Outline of the Session
1. Discussion of how we normally look at things
(domestic law perspective).
2. Overview of the EU law perspective on SNCBs.
3. Discussion of actual habitual residence – how an
EU law perspective might change access for EU
migrants.
4. Discussion of the right-to-reside test – how an
EU law perspective might change access for EU
migrants.
4
The Way We Normally See Things
(Domestic Law Approach)
Two-part test to secure means-tested benefits:
1. Actual habitual residence – rooted in a logic of
tying receipt of benefits to the social and
economic context of the country in which
those benefits are granted.
2. Right to reside – rooted in a logic of restricting
the rights of EU migrants to the extent
permitted by the Treaty on the Functioning of
the European Union, Directive 2004/38 and
other provisions of EU law.
5
UK Legislation
State Pension Credit Regulations 2002
2.—(1) A person is to be treated as not in Great Britain if, subject to the following provisions of this regulation, he is not habitually resident in
the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.
(2) No person 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);
(b) regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the person 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(c); or
(d) Article 39 of the Treaty establishing the European Community (in a case where the person is seeking work in the United Kingdom, the
Channel Islands, the Isle of Man or the Republic of Ireland).
(4) A person is not to be treated as not in Great Britain 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;
…
6
The UK Logic in Action
HG v Secretary of State for Work and Pensions [2011] UKUT 382 (AAC) (15
September 2011)
• Polish mother of a dual British-Polish national.
• No right to reside under Directive 2004/38 following McCarthy
(Case C-434/09)
• Right to reside under the Immigration (European Economic
Area) Regulations 2006 before the 2012 amendments which
took dual nationals out of the personal scope of the Directive
7
Irish Legislation
Social Welfare Consolidation Act 2005
246.—
…
(5) Notwithstanding subsections (1) to (4) and subject to subsection (9), a
person who does not have a right to reside in the State shall not, for the
purposes of this Act, be regarded as being habitually resident in the State.
(6) The following persons shall, for the purpose of subsection (5), be taken to
have a right to reside in the State:
(a) an Irish citizen under the Irish Nationality and Citizenship Acts 1956 to
2004;
(b) a person who has a right to enter and reside in the State under the
European Communities (Free Movement of Persons) (No. 2) Regulations 2006
(S.I. No.656 of 2006), the European Communities (Aliens) Regulations 1977
(S.I. No. 393 of 1977) or the European Communities (Right of Residence for
Non- Economically Active Persons) Regulations 1997 (S.I. No. 57 of 1997)
…
8
Logic-Game Thinking
An advertising executive must schedule the advertising during a particular television
show. Seven different consecutive time slots are available for advertisements during a
commercial break, and are numbered one through seven in the order that they will be
aired. Seven different advertisements – B, C, D, F, H, J, and K – must be aired during
the show. Only one advertisement can occupy each time slot. The assignment of the
advertisements to the slots is subject to the following restrictions:
B and D must occupy consecutive time slots.
B must be aired during an earlier time slot than K.
D must be aired during a later time slot than H.
If H does not occupy the fourth time slot, then F must occupy the fourth time slot.
K and J cannot occupy consecutively numbered time slots.
1.Which of the following could be a possible list of the
advertisements in the order that they are aired?
(A) BDFHJCK
(B) CJBHDKF
(C) HBDFJCK
(D) HDBFKJC
(E) HJDBFKC
2. If advertisement B is assigned to the third time slot, then which
of the following must be true?
(A) C is assigned to the sixth time slot.
(B) D is assigned to the first time slot.
(C) H is assigned to the fourth time slot.
(D) J is assigned to the fifth time slot.
(E) K is assigned to the seventh time slot.
Marie is French. She can get
benefits if she has worker status.
She can only have this status if she is
engaged in work that is genuine and
effective, or has retained this status
in one of three ways. She can also
get benefits if she is self-employed.
She cannot get benefits if she is only
exercising a right to reside on the
basis of being self-sufficient. She
can get some, but not all benefits, if
she is exercising a right to reside as a
jobseeker (unless she has retained
worker status as a jobseeker, in
which case she can get all benefits).
She can also get benefits if she is the
primary carer of a child, but only if
the child is in education and she or
the child’s other parent) was in
9
work…
Seven Ways to Get an EEA National
Social Assistance Benefits
1. Sign on as a Jobseeker
EEA national jobseekers who are ‘actually habitually resident’ and who
are actively seeking work and have ‘genuine chances of being
engaged’ are eligible for:
•
Income-based Jobseeker’s Allowance
• Housing Benefit
• Council Tax Benefit
However, they cannot obtain social housing. Also, this will not work
for non-exempt A2 nationals. But check to see if they are exempt!
11
2. Work
• An EEA worker, even working part-time (as
little as ten hours per week), is eligible for all
of the benefits that a British Citizen would get.
A2 nationals cannot work unless they
are exempt or have authorisation.
12
3. Get into Self-Employment
• Self-employed EEA nationals are eligible for benefits.
• There is case law suggesting that self-employed
people with a very low level of activity are still
entitled to benefits. There is also case law
establishing that people selling The Big Issue can
qualify as self-employed.
A2 nationals can
be self-employed
without any
restrictions.
13
4. Demonstrate Retained Worker or
Self-Employed Status
• This can be done in a number of ways, but only if the person
was a worker or self-employed to start:
• Show that you were working or self-employed but are
‘temporarily unable to work due to illness or accident’.
• Sign on as a jobseeker, after having been made involuntarily
unemployed. This won’t work for self-employed people.
• Undertake vocational training (must be related to previous
employment unless made involuntarily unemployed). This
won’t work for self-employed people.
14
5. Show Permanent Residence
• This is worth pursuing for any EEA national
who has lived in the UK for five years, has
reached pension age or has become
permanently incapacitated.
• In cases where the person has reached
pension age or has become permanently
unable to work, seek our advice.
15
6. Show That You Are a ‘Family
Member’
Family members include spouses, civil partners, children
or grandchildren under 21, older children or
grandchildren who are dependent, dependent relatives
in the ascending line.
If you are working with someone who has another
relative in the UK, there may be a way of applying to be
recognised as an ‘other family member’.
Remember that the UK has adopted new laws stating that
Zambrano parents cannot claim benefits.
16
7. Show that You are the ‘Primary Carer of
the Child-in-Education of a Worker’
This rule is not contained anywhere
in domestic law. It comes from the
Court of Justice of the EU’s
interpretation of the Treaties.
When dealing with the benefits
authorities, call it the Teixeira and
Ibrahim rule. The rule might also
apply if the primary carer is the
person who worked. It won’t work
in the case of A8 nationals who
never registered.
The rule doesn’t apply where the
parent was self-employed rather
than employed.
An EEA national has
worked in the UK…
and the child lived
here at some point the
EEA parent was
working…
and was in compulsory
education at some
point that the parent
was in the UK. Child
and primary carer can
stay and get benefits.
17
EU Law Perspective
Article 48 TFEU
(ex Article 42 TEC)
The European Parliament and the Council shall, acting in accordance with the ordinary legislative
procedure, adopt such measures in the field of social security as are necessary to provide freedom of
movement for workers; to this end, they shall make arrangements to secure for employed and selfemployed migrant workers and their dependants:
(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the
amount of benefit, of all periods taken into account under the laws of the several countries;
(b) payment of benefits to persons resident in the territories of Member States.
Where a member of the Council declares that a draft legislative act referred to in the first subparagraph
would affect important aspects of its social security system, including its scope, cost or financial
structure, or would affect the financial balance of that system, it may request that the matter be
referred to the European Council. In that case, the ordinary legislative procedure shall be suspended.
After discussion, the European Council shall, within four months of this suspension, either:
(a) refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative
procedure; or
(b) take no action or request the Commission to submit a new proposal; in that case, the act originally
proposed shall be deemed not to have been adopted.
18
EU Law Perspective
Regulation 883/04
Article 4: Unless otherwise provided for by this Regulation, persons to whom this
Regulation applies shall enjoy the same benefits and be subject to the same
obligations under the legislation of any Member State as the nationals thereof.
Article 6: Unless otherwise provided for by this Regulation, the competent institution of
a Member State whose legislation makes:
— the acquisition, retention, duration or recovery of the right to benefits,
— the coverage by legislation,
— or
— the access to or the exemption from compulsory, optional continued or voluntary
insurance,
conditional upon the completion of periods of insurance, employment, selfemployment or residence shall, to the extent necessary, take into account periods of
insurance, employment, self-employment or residence completed under the legislation
of any other Member State as though they were periods completed under the
legislation which it applies.
19
EU Law Perspective
Regulation 883/04
Article 11:
1. Persons to whom this Regulation applies shall be subject to the legislation of a single Member
State only. Such legislation shall be determined in accordance with this Title.
2. For the purposes of this Title, persons receiving cash benefits because or as a consequence of
their activity as an employed or self-employed person shall be considered to be pursuing the said
activity. This shall not apply to invalidity, old-age or survivors' pensions or to pensions in respect
of accidents at work or occupational diseases or to sickness benefits in cash covering treatment
for an unlimited period.
3. Subject to Articles 12 to 16:
(a) a person pursuing an activity as an employed or self-employed person in a Member State shall
be subject to the legislation of that Member State;
…
(e) any other person to whom subparagraphs (a) to (d) do not apply shall be subject to the
legislation of the Member State of residence, without prejudice to other provisions of this
Regulation guaranteeing him/her benefits under the legislation of one or more other Member
States.
20
EU Law Perspective - SNCBs
Regulation 883/04
Recital 16: Within the Community there is in principle no justification for making social security
rights dependent on the place of residence of the person concerned; nevertheless, in specific
cases, in particular as regards special benefits linked to the economic and social context of the
person involved, the place of residence could be taken into account.
Article 1(j): ‘residence’ means the place where a person habitually resides
Article 2:
1. This Regulation shall apply to nationals of a Member State, stateless persons and refugees
residing in a Member State who are or have been subject to the legislation of one or more
Member States, as well as to the members of their families and to their survivors.
…
Article 70(4): The benefits referred to in paragraph 2 shall be provided exclusively in the Member
State in which the persons concerned reside, in accordance with its legislation. Such benefits shall
be provided by and at the expense of the institution of the place of residence.
21
Conclusions of the EU Logic
• All EU citizens are covered by the Regulation, regardless of
economic activity, as long as they have been subject of the social
security legislation of a Member State.
• Non-discrimination between people and the assimilation and
aggregation of events that happen within EU territory are key
underlying principles.
• One (and only one) EU Member State is responsible for a citizen’s
SNCBs at any time – the State of residence – so every EU citizen
who is resident in the EU is covered by some State’s SNCB regime
– if they are not getting SNCBs, it is because the regime does not
cover their situation.
• SNCBs are an exception as they cannot be exported – they are
closely tied to the social and economic situation in the State of
residence.
22
Are we capable of using this logic in
the UK? Yes and No.
EC v Secretary of State for Work and Pensions
[2010] UKUT 95 (AAC) (31 March 2010)
46. I have been unable to identify any other provision of European
Union law which would assist the appellant with her claim for
pension credit to be paid in Spain.
47. That exhausts consideration of the appellant’s rights in the
United Kingdom in relation to her claim for pension credit.
48. It does, however, occur to me that the appellant would seem
now to have acquired permanent resident status in Spain as defined
by Directive 2004/38/EC on the right of citizens of the Union and
their family members to move and reside freely within the territory
of the Member States. Article 16 of that Directive introduces the
concept of permanent residence which is acquired after five years
of lawful residence in a Member State other than that of the
person’s nationality. Article 24 of the Directive provides that a
person with permanent resident status must be treated in every
respect equally with nationals of the host Member State. If there is
a top up benefit for pensioners of limited means provided under
the Spanish social security system, the appellant should have access
to it.
Patmalniece v SSWP [2011] UKSC 11
52 [Lord Hope]. [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.
23
Consequences of the EU Logic for
‘Actual’ Habitual Residence - Ireland
SOCIAL WELFARE CONSOLIDATION ACT 2005 – SECTION 246
(1) For the purpose of each provision of this Act specified in subsection (3), it shall be
presumed, until the contrary is shown, that a person is not habitually resident in the State
at the date of the making of the application concerned unless the person has been present
in the State or any other part of the Common Travel Area for a continuous period of 2 years
ending on that date.
…
(4) Notwithstanding the presumption in subsection (1), a deciding officer or the Executive,
when determining whether a person is habitually resident in the State, shall take into
consideration all the circumstances of the case including, in particular, the following:
(a) the length and continuity of residence in the State or in any other particular country;
(b) the length and purpose of any absence from the State;
(c) the nature and pattern of the person’s employment;
(d) the person’s main centre of interest; and
(e) the future intentions of the person concerned as they
appear from all the circumstances.
24
Consequences of the EU Logic for
‘Actual’ Habitual Residence - Ireland
The two-year presumption potentially creates a gap in
which no Member State is responsible for a citizen who
has not left the Union.
A mechanism to ensure that an EU citizen who has not
been habitually resident outside the territory of the
European Union has a State of habitual residence.
The Irish authorities should identify the State in which an
EU citizen is habitually resident if it is not the Republic of
Ireland.
25
Consequences of the EU Logic for
‘Actual’ Habitual Residence - UK
The Nessa test and the Swaddling tests.
Nessa [1999] UKHL 41 – need for an appreciable period of residence
Swaddling (Case C-90/97):
29. The phrase 'the Member State in which they reside' in Article 10a of Regulation No
1408/71 refers to the State in which the persons concerned habitually reside and
where the habitual centre of their interests is to be found. In that context, account
should be taken in particular of the employed person's family situation; the reasons
which have led him to move; the length and continuity of his residence; the fact (where
this is the case) that he is in stable employment; and his intention as it appears from all
the circumstances ….
30. For the purposes of that assessment, however, the length of residence in the
Member State in which payment of the benefit at issue is sought cannot be regarded
as an intrinsic element of the concept of residence within the meaning of Article 10a of
Regulation No 1408/71.
26
Consequences of the EU Logic for
‘Actual’ Habitual Residence - UK
In the AIRE Centre’s experience, Jobcentre Plus and
tribunals still apply the appreciable-period-ofresidence test to EEA nationals. This creates a
potential gap.
Example: Portuguese national relocated from
Switzerland to the UK to begin a career as a football
coach. Jobcentre Plus did not regard him as
habitually resident for several months.
27
Consequences of the EU Logic for the
Right-to-Reside Test
Article 70(4) indicates that SNCBs ‘shall be provided
exclusively in the Member State in which the person
concerned resides, in accordance with its legislation’.
However, Swaddling indicates that the State’s legislation
cannot impose a stricter residence-based eligibility
criterion than the ‘habitual residence’ test in the
Regulation. The Regulation does not mention a right to
reside – it applies to every Union citizen who has been
subject to at least one State’s social security system. And
remember Article 11(3)(e) of the Regulation – if you are
economically inactive and nothing else applies, you are
subject to the legislation of the State in which you reside.
28
Competing Logics, Example 1:
Jobseeker’s Allowance for a
Polish National
Polish national came to the UK in 2004
and only worked casual jobs in
agriculture in Norfolk. He registered
some of these jobs under the UK’s
Worker Registration Scheme but not
all of them. In early 2010, he started
working a seasonal job and registered
the job under the Worker’s
Registration Scheme. The season
ended and he started signing on at
Jobcentre Plus for Jobseeker’s
Allowance, but was ineligible because
he had not completed twelve months
of registered employment (see the
Accession (Immigration and Worker
Registration Regulations) 2004. The
case will be heard this Spring in the
Upper Tribunal.
• The Logic Games Approach
– The UK did not have the right to
derogate from Article 7(3)(c) of
Directive 2004/38 under the
Accession Treaty.
– Our client had acquired
permanent residence on the
basis of being self-sufficient
and/or working (raising complex
issues around comprehensive
sickness insurance).
• The EU approach: Jobseeker’s
Allowance is a special noncontributory benefit, this citizen
is clearly subject to the UK’s
legislation (Article 11(3)(a) & (e)
of the Regulation).
29
• The Logic Games Approach
Competing Logics,
Example 2: Saint-Prix
French national came to
the UK and studied. She
stopped her studies after
she became pregnant and
took an agency job in a
nursery. She stopped
working after she was too
heavily pregnant to carry
out her duties and applied
for Income Support. She
was refused on the basis
that she did not have a
right to reside.
– Article 7(3) of Directive 2004/38
is not exhaustive list of those
situations in which a worker
retains worker status – it also
covers this situation.
– Gender discrimination arguments
which rely on the fact that only
women become pregnant, so this
approach constitutes
discrimination.
• The EU approach: Income
Support was a special noncontributory benefit, this citizen
is clearly subject to the UK’s
legislation (Article 11(3)(a) & (e)
of the Regulation).
30