EEA nationals: barriers to benefits Henri Krishna April 2018 (c) CPAG 2016

Overview No general exclusion of EEA nationals from benefit entitlement EEA nationals cannot be a ‘person subject to immigration’ for benefit purposes Main barriers are the ‘habitual residence test’ and ‘past presence test’ – these apply to all claimants but mainly effect EEA nationals Some additional restrictions at present on Croatians

The habitual residence test The habitual residence test (HRT) applies to all the means-tested benefits The means-tested benefits are: Income support; Income-based JSA; Income-related ESA; You cannot pass the HRT unless you have a qualifying ‘right to reside’ Even if you have a right to reside you may still need to show you’re habitually resident ‘in fact’ Housing benefit; Pension credit; Universal credit People who are nationals of countries outside the EEA require permission to come to the UK under immigration law. If granted permission (ie leave to enter and remain) then this will usually be in the form of a visa. This visa might include a ‘no recourse to public funds’ restriction and breaking that condition, or others, can mean either your leave being revoked or not being granted further leave in the future. Therefore if someone does have a no recourse to public funds restriction on their visa it is very important that they do not claim or try to claim any benefits which are defined as public funds (most of the benefits are unless based on NI contributions or employment) and/or that someone else doesn’t get benefits or an increase in benefits due to their presence. People who are required to have leave but don’t (eg they entered the UK without first getting leave or they had leave but it has expired, including most people who are seeking asylum) are excluded from most benefits. They do not have a public funds restriction but the benefits from which they are excluded are mostly the same. An attempt to claim won’t be a breach of their leave in the UK, as they’ve not got leave, but is likely to bring them to the attention of the Home Office. Some exceptions to the normal rules apply but these are complex and it is best to get advice to see whether any may apply. Non-EEA nationals who meet the definition of family members (see below) of an EEA national with a right to reside are not excluded from benefits under these rules. This applies even if they were originally granted leave to remain or enter in the UK with a public funds restriction as long as they remain family members of an EEA national with a right to reside. People granted refugee status, discretionary leave or humanitarian protection following an asylum claim will have full entitlement to benefits during the period of that leave. See CPAG’s factsheet on New Refugees for more details. It is always best to get specialist advice when checking the benefit entitlements of people from outside the EEA as getting it wrong can have very serious consequences. (c) CPAG 2016

Right to reside (RtR) for EEA nationals Can have RtR under either UK or EU law: UK law - Immigration (EEA) Regulations 2016; EU law - usually EC Directive 2004/38 Types of RtR: Jobseeker (after 3 months ‘GPOW’ applied); Worker; Retained worker (after 6 months ‘GPOW’ applied if ‘involuntarily unemployed’); Self-employed; Retained self-employed; Self-sufficient/student; Permanent; Family member; ‘Derivative’ (eg primary carers) The main groups of benefits with residence and presence requirements are those paid for those with disabilities and those caring for them, those paid for children and means-tested benefits. These requirements apply to all claimants and so can stop UK nationals claiming these benefits too. Since April 2013, claimants of disability and carer’s benefits must meet a 104 out of the last 156 week past presence in GB test, as well as being habitually resident in the common travel area (CTA – the UK, Republic of Ireland, Isle of Man and Channel Islands). Some special rules mean that many EEA nationals may be either exempt from the past presence test or be able to use periods of residence elsewhere in the EEA to meet it, and so can claim these benefits after a relatively short time in the UK. However, in some cases, particularly if they are still receiving certain benefits or a pension from another EEA state, another EEA state may be considered responsible for paying these type of benefits under EU law. For child benefit and child tax credit, the claimant must have a right to reside in the UK. Any right to reside will do, unless it is on the basis that the claimant is caring for a British national who would otherwise have to leave the EEA. EEA nationals can also claim these benefits for children living in other EEA states as long as no one is claiming the equivalent benefits in that or another EEA state. Means-tested benefits require all claimants to pass the habitual residence test. The main issue for EEA nationals is the first stage of the test which is that they have a right to reside under EU law. To have a right to reside an EEA national needs to be exercising certain rights of free movement under EU law. Even if they do have a right to reside, this doesn’t mean they are entitled to all means-tested benefits as some rights to reside are specifically excluded for some benefits and the definition of certain rights to reside mean you are unlikely to qualify for means-tested benefits. What benefit entitlement the main rights to reside under EEA law give you are described below. Note Croatian nationals will not normally be able to have a right to reside as a jobseeker due to the current restrictions on them. (c) CPAG 2016

Qualifying right to reside For means-tested benefits other than JSA, any right to reside will do unless only: an initial 3 month right to reside; jobseeker (or their family member); or derivative ‘Zambrano’ right For income-based JSA, can also pass HRT if only right to reside is as a jobseeker Some types of right to reside will exempt you from rest of HRT, otherwise still need to show habitually resident ‘in fact’

Benefits for children For child benefit and child tax credit, no habitual residence test but the claimant needs to have a right to reside Any right to reside will do except ‘Zambrano’ right However, usually must be living-in UK for 3 months first

The ‘past presence test’ Applies to DLA, PIP, attendance allowance and carer’s allowance Must have been in the UK for 2 out of last 3 years (shorter for children under 3) May be exempt if can show ‘genuine and sufficient link to the UK’ Periods of residence in other EEA states can sometimes be added to UK residence to meet the test

Example Iona is 24, Greek, came to the UK with her parents 7 years ago. Her parents have both always worked in the UK After finishing college at 19 she worked, met Marco who is Spanish, moved in with him when she got pregnant, stopped working until 9 months after their daughter, Clarissa, was born Iona left Marco a month ago due to abuse. Clarissa has just turned 4. Iona has had to stop work. She can’t stay with her parents but they are providing her with some money every week for Clarissa. She has been refused UC for failing HRT UC decision may be wrong as may have right to reside: Permanently; As someone who retains worker status; As dependent child of a worker; As primary carer of child of worker in education

Common problems for EEA nationals Was work ‘genuine and effective’? Misapplication of the ‘GPOW’ Exclusion of jobseekers from HB and UC HB following DWP decisions Multiple rights to reside Proving that you have a right to reside Poor decision making Delays Brexit

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