Transcript NAWRA Workshop Right to Reside: Challenges and Rights

NAWRA Workshop
Right to Reside:
Challenges and Rights
The AIRE Centre
Saadiya Chaudary and Adam Weiss
9 March 2012
London
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Mission: promote awareness of European law rights and assist
marginalised individuals and those in vulnerable circumstances to
assert those rights.
Activities:
• Providing free legal advice and services, usually ‘second-tier’, on
European law (mostly EU law on the free movement of persons).
• Representing applicants in cases before the European Court of
Human Rights.
• Third-party interventions.
• Reports, trainings, special projects.
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Objective of this Session
Improve participants' understanding of the right‐to‐reside
test, with a focus on recent case law, action the European
Commission has taken to challenge the test and the rights of
particularly vulnerable migrants under the test, including
survivors of domestic violence and victims of human
trafficking.
Structure:
1. Two-minute overview of the test
2. Five minute discussion of the Commission infringement
proceedings.
3. Five-minute discussion of recent/current case law.
4. Case studies.
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The Test
‘Actual’
habitual
residence
Not a
person
from
abroad
Right to
reside
Benefits Affected:
• Housing Benefit
• Council Tax Benefit
• Income-based
Jobseeker’s Allowance
• Income-related
Employment and Support
Allowance
• State Pension Credit
• Income Support
The right-to-reside test also
applies to Child Benefit and
Child Tax Credit.
In some cases, your right to reside
‘passports you’ through and you don’t need
to show actual habitual residence.
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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
(Article 18 TFEU: ‘Within the scope of application of the
Treaties, and without prejudice to any special
provisions contained therein, any discrimination on
grounds of nationality shall be prohibited’).
• In UK law and practice, EU nationals are viewed as
foreigners and you have to justify equal treatment.
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Infringement Proceedings
Article 258 TFEU
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.
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The Infringement Proceedings:
June 2009: AIRE and ILPA complaint about certain aspects of the right-to-reside test
February 2010, the Commission makes two findings:
Certain aspects of the worker registration scheme
for A8 nationals are unlawful. Specifically,
registered A8 workers should be able to retain
their worker status (e.g. if they are involuntarily
unemployed, or if they are ill) even if they have
not yet completed twelve months.
The EC sends a letter of formal notice to the UK
about it (July 2010).
The right to reside test is unlawful
discrimination under Reg 1408/71 (now
Reg 883/04) in relation to State Pension
Credit, income-based JSA, incomerelated ESA and Income Support.
The EC sends a letter of formal notice to
the UK about it (July 2010).
The EC sends a ‘reasoned opinion’ to the UK
(November 2010).
THE SUPREME COURT OF THE UK
DECIDES THE PATMALNIECE CASE
(essentially finding that there is no basis
for the infringement.
The EC withdraws the infringement because the
right-to-reside test no longer applies (May 2011).
AIRE protests, EC does maintains its decision.
The EC (nonetheless) sends a ‘reasoned
opinion’ to the UK (September 2011).
Now – the matter is pending.
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The Commission’s View – excerpt from February 2010 letter
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Current Case Law Issues
• Permanent residence and comprehensive sickness insurance:
compare Lekpo-Bozua with SW.
• Permanent residence: Ziolkowski.
• Worker Registration Scheme – backdating of worker registration
certificates.
• Zambrano – see RR, SW and the UK(IAT) determination in Sanade.
• Maternity and parents with young children: JS pending in the
Supreme Court (to be heard in March 2013).
• Self-employment: see Tilianu, AL and RJ.
• Teixeira and Ibrahim – does it apply to the self-employed? See
Cases C-147&148/11 Czop & Punakova, pending in the CJEU.
• EEA spouses of British citizens: see SW.
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Questions?
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Case Study 1
L is from Latvia. She came to the UK in 2005, worked,
registered, for six months, and then went back to Latvia.
She was trafficked to the UK four months later and
sexually exploited for 18 months. She escaped the
traffickers and was later recognised as a victim of
trafficking. In 2007 she worked for fifteen months, but
only registered her work after a year. She left her job
because of sexual harassment and claimed income-based
JSA. She was refused. She was subsequently granted a
residence permit as a victim of human trafficking and so
received Income Support for a year. Her appeal is now
pending on the JSA claim. What arguments can you make
for her?
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Case Study 2
F is a French citizen. She is married to a British
Citizen. F has never worked in the UK; her husband
has always worked. They got married in 2004 and
have been living here ever since. They have a child
born in 2006. F’s husband went to prison for three
months last year and F applied for Income Support
during that period. She was refused. What will you
argue for her?
Would it make a difference if you learned that F
herself had spent four months in prison back in
2007?
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Case Study 3
B is a Bulgarian national. She and her husband, also
Bulgarian, have been living in the UK since 2000. They
originally came here is asylum seekers and were given
temporary admission with the right to work – they did
work up until 15 January 2007, when they were told they
were not allowed to work any more. In 2008 B started
her own cleaning business. It was running successfully
but she lost her last contract in September 2011. Her
husband has not had any work, but occasionally helps her
with the business. What benefits can they apply for?
What arguments would you make if they were refused?
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Case Study 4
S is a Senegalese national, married to a Belgian
national. They have a Belgian national child and
have been living together in the UK since January
2010. Twelve months ago, S’s husband was sent to
jail for threatening her with a knife. S applied for
Income Support and was refused. S has now been
informed her husband is likely to be let out soon
but may be deported. Her Income Support appeal
is pending and she wants to get some benefits now,
and also wants help with the appeal. What
arguments will you make in the appeal? What
advice will you give her?
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Contact Details
[email protected]
[email protected]
[email protected]
The AIRE Centre can provide second-tier advice to
other advisers on EU law issues. We provide advice
in writing and aim to respond within two weeks. In
some situations, we can take on cases ourselves.
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