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A partnership project delivered by Welsh Refugee Council, COMPAS and the Migration Observatory. Funded by Welsh Government.

Migrants’ Entitlements to Welfare Benefits in Wales

Author(s): 
Jonathan Price
Current Revision (Date): 
January 2016

Introduction

This briefing provides a general overview of migrants’ entitlement to claim public funds in Wales, which include welfare benefits and some housing services. A broad range of migrant groups are considered here, including mobile EU citizens, refugees and third country nationals. Eligibility processes for individual public funds are not considered here; rather we focus on the broad residence and/or immigration requirements that apply to migrants to be considered for welfare benefit entitlement.

‘Public funds’ is a term for a specific list of welfare benefits and some housing services as listed under Paragraph 6 of the Immigration Rules, from which some people subject to immigration control are excluded. For the remainder of this briefing we shall refer to welfare benefits and housing services, rather than ‘public funds’, as these are more familiar terms.

Welfare benefits are not a devolved area of law and policy, therefore most of the laws and policies in this briefing apply to the UK as a whole. However, some areas concerning housing services are distinct in Wales and, where relevant, these are specified. This is a highly complex area of practice, requiring each situation to be considered on a case-by-case basis. This briefing does not constitute legal advice and does not have statutory status.

How this briefing is structured

This briefing begins by considering what counts as a public fund and which migrant groups (by immigration status) are excluded from accessing public funds and which groups are not excluded. The substantive part of this briefing addresses the entitlements of mobile EU citizens to claim welfare benefits. We close by considering the entitlements of migrants to housing services and by providing links to further resources.

Welfare benefits – what counts as a ‘public fund’?

Public funds are listed under Paragraph 6 of the Immigration Rules and include means-tested welfare benefits, housing services and welfare benefits for people with specific circumstances, such as having a disability or being a parent with dependent children. The list changes frequently and the up-to-date list can be accessed at the following link: https://www.gov.uk/government/publications/public-funds--2. At the time of writing, the list of public funds is as follows:

  • income-based jobseeker’s allowance
  • income-related employment and support allowance
  • income support
  • child tax credit
  • universal credit
  • working tax credit
  • a social fund payment
  • child benefit
  • housing benefit
  • council tax benefit
  • council tax reduction
  • domestic rate relief (Northern Ireland)
  • state pension credit
  • attendance allowance
  • severe disablement allowance
  • personal independence payment
  • carer’s allowance
  • disability living allowance
  • an allocation of local authority housing
  • local authority homelessness assistance.

Publicly funded services such as NHS treatment, education, legal aid and social services support do not count as ‘public funds.’ Similarly, welfare benefits that are based on National Insurance contributions do not count as ‘public funds’; the list of these welfare benefits can be accessed at https://www.gov.uk/government/publications/public-funds--2/public-funds. They are as follows:

  • contribution-based jobseeker’s allowance
  • contribution-based employment and support allowance
  • retirement pension
  • widow’s benefit and bereavement benefit
  • guardian’s allowance
  • statutory maternity pay
  • statutory sick pay

Migrant ‘groups’ and their eligibility for public funds

Section 115 Immigration and Asylum Act 1999 states that certain groups of people that are ‘subject to immigration control’ will have ‘no recourse to public funds’ (NRPF), affecting their entitlement to claim public funds as listed in the Immigration Rules. These include people who require leave to enter or remain in the UK but do not have it (e.g. visa overstayers, illegal entrants, refused asylum seekers); those who have leave to enter or remain in the UK on the condition of having NRPF (e.g. certain people on visas); or have leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking (meaning a written undertaking given by another person to be responsible for that person’s maintenance and accommodation).[1]

The NRPF policy does not exclude migrants from publicly funded services more generally, such as NHS treatment, education, legal aid and social services, or contribution-based welfare benefits, however separate eligibility criteria for such services are likely to apply. Claiming public funds in error when a person has NRPF can result in a breach of their immigration conditions and may jeopardise their leave to remain, an extension of their leave to remain or could provide grounds for removal from the UK.

The entitlement of nationals of European Economic Area (EEA) countries[2] (henceforth referred to as ‘mobile EU citizens’) to welfare benefits is subject to separate regulations that are discussed in more detail in the latter part of this briefing (see section Mobile EU citizens: entitlements to claim welfare benefits).

A person’s documentation (e.g. visa, Home Office letter) or their biometric residence permit may stipulate that they have no recourse to public funds (NRPF). If a person’s documentation/biometric residence permit does not stipulate that they have no recourse to public funds, it is likely that the NRPF policy does not apply to them and that they are entitled to claim welfare benefits, subject to the individual eligibility criteria of each benefit.

Refugees and people with Indefinite Leave to Remain (ILR)

Refugees, people with humanitarian protection, discretionary leave to remain (DLR), indefinite leave to remain (ILR) or those who have been resettled in the UK as part of a resettlement programme are generally entitled to claim welfare benefits unless their documentation stipulates that they have NRPF. They would still need to meet the individual eligibility criteria for that particular welfare benefit. Refugees and those with DLR or humanitarian protection do not have to pass the Habitual Residence Test (more information on this below), however those with ILR do.

People with Limited Leave to Remain (LLR)

People with limited leave to remain (LLR) include those living in the UK on visas (such as work, visitor or student visas). These visas are generally issued on the condition of having NRPF.

Since July 2012, people who apply to remain in the UK under certain immigration routes may be granted limited leave to remain (LLR) on the condition that they have NRPF. These include applications outside the immigration rules on private and family life grounds. The NRPF condition on these grants of LLR can be removed if the person can provide evidence on submitting the application (or by challenging the condition post-decision) that they are destitute or that there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income. More info at: http://www.childrenslegalcentre.com/userfiles/file/NRPF_30_07_13.pdf.

Asylum seekers and refused asylum seekers

Asylum seekers and refused asylum seekers are excluded from welfare benefits and housing services by the individual eligibility conditions of these benefits and services. However, separate provisions are available under Sections 95 and 4 of the Immigration and Asylum Act 1999 to destitute asylum seekers and refused asylum seekers, respectively, provided by the Home Office. Both Sections 95 and 4 support include subsistence payments and accommodation across the UK provided by the Home Office via contractors. Section 95 is generally provided to those awaiting a decision on their asylum claim (including any appeals) and for families with dependent children born before the all appeal rights exhausted date of their asylum claim but whose asylum case has been refused. Support under Section 95 for single adults ceases 28 days after their all-appeal rights exhausted (ARE) date, but this is currently not the case for families with dependent children under the age of 18.

Section 4 is generally provided to refused asylum seekers who are destitute and meet certain conditions, including that they are taking all reasonable steps to leave the UK, however subsistence payments are at a lower rate and are provided on a prepaid card. Section 4 is most commonly provided to single adults and to refused asylum seeking families whose dependent children were born after their all appeal-rights exhausted (ARE) date. Information on the eligibility process for asylum support and the provision of services for asylum seekers and refused asylum seekers is available at: https://www.gov.uk/asylum-support/overview

The Immigration Bill 2015 proposes the repeal of Section 4 Immigration and Asylum Act 1999. If the Bill is passed, support to refused asylum seekers will only be provided in exceptional circumstances, under a new power: Section 95A Immigration and Asylum Act 1999. The detail of what constitutes exceptional circumstances, including those who have a ‘genuine barrier to leaving the UK’ will be detailed in forthcoming regulations. The automatic continuation of asylum support under Section 95 Immigration and Asylum Act 1999 for refused asylum seekers with dependent children born before their all appeal rights exhausted (ARE) date, will also cease under proposals in the Bill. The power to support destitute refused asylum seeking families with dependent children under Section 95A will be subject to new eligibility assessments detailed in the regulations. It is possible that duties under the Children Act 1989 up to April 2016 and under the Social Services and Well-being (Wales) Act 2014 beyond April 2016 may arise where families are deemed to be ineligible for Section 95A Immigration and Asylum Act 1999 support. A joint response to the proposals in the Bill from the Local Government Association (LGA), Welsh Local Government Association (WLGA), the Convention of Scottish Local Authorities (COSLA), the Association of Directors of Children’s Services (ADCS), and the No Recourse to Public Funds (NRPF) Network, which includes further information, is available at: http://www.nrpfnetwork.org.uk/Documents/Reforming-asylum-support-consultation-response.pdf

Migrants with irregular status (including overstayers and illegal entrants)

Migrants with irregular immigration status include those who require leave to enter or remain in the UK but do not have it, or those who are liable to deportation or removal, such as visa overstayers, although there is no single definition of ‘irregular migration status.’ Neither asylum support nor welfare benefits are available to migrants with irregular status, however safety net support from local authorities may be available to destitute irregular families with dependent children, adults with needs for care and support due to mental/physical health problems or care leavers (see section Statutory support available to people that are ineligible for public funds for more information). In rare circumstances, migrants with irregular status may be able to access accommodation and subsistence support under Section 4(1)(a) Immigration and Asylum Act 1999, however there are no published regulations stipulating eligibility, and it is granted rarely and generally only on appeal to the Asylum and Immigration Tribunal.

UK nationals returning from long periods abroad

UK nationals are not subject to immigration control and do not have NRPF, however they must pass the Habitual Residence Test in order to be entitled to claim welfare benefits (more information on the Habitual Residence Test is provided below). This may affect UK nationals returning to the UK after living abroad.

Third country nationals from countries with bilateral social security arrangements with the UK

Nationals of certain countries may be able to use social security contributions in their home countries to claim welfare benefits in the UK or claim welfare benefits from that country whilst living in the UK, however their eligibility varies based on the country and the welfare benefit which is being applied for. Countries with bilateral social security arrangements with the UK (in addition to some EEA countries) are: Barbados, Bermuda, Canada, Isle of Man, Israel, Jamaica, Jersey and Guernsey (Channel Islands), Mauritius, New Zealand, Philippines, Republics of the former Yugoslavia, Turkey and the USA. Generally speaking, these cover basic state pension and some welfare benefits that are not ‘public funds’ as listed under Paragraph 6 of the Immigration Rules. The Habitual Residence Test applies to third country nationals applying for welfare benefits under a bilateral social security arrangement.

Nationals of countries that have ratified the Council of Europe Social Charter (CESC) or the European Convention on Social and Medical Assistance (ECSMA) may be entitled to claim certain welfare benefits (including income-based JSA, Housing Benefit and Council Tax Reduction) if they are lawfully present in the UK. Certain countries (Albania, Algeria, Israel, former Yugoslav Republic of Macedonia, Montenegro, Morocco, San Marino, Tunisia and Turkey) have agreements with the EU, which enable nationals of these countries to claim certain welfare benefits if they are working lawfully in the UK.

People fleeing domestic violence

People in the UK on spouse visas are subject to immigration control and have NRPF. However, special arrangements are in place for those on spouse visas whose relationship permanently breaks down due to domestic violence and want to settle in the UK. In such circumstances, applications to the Home Office can be made under the Domestic Violence Rule (DVR) for Indefinite Leave to Remain (ILR), and in the period this application is being prepared by the applicant and considered by the Home Office, applicants can apply for a specific form of leave that will give them temporary access to welfare benefits, under a scheme called the Destitution Domestic Violence (DDV) Concession. Applicants are required to notify the Home Office of their request to access public funds by completing and returning the DDV Concession application form.

Other migrant groups fleeing domestic violence are not entitled to apply for this specific form of leave under the DDV Concession, thereby entitling them to claim welfare benefits. Alternative support may be available for asylum seekers fleeing domestic violence from the Home Office (under Section 95 Immigration and Asylum Act 1999), or from the DWP as mobile EU citizens or as family members of mobile EU citizens (see below section Mobile EU citizens: entitlement to claim welfare benefits), or from local authority social services departments if they have dependent children, are a care leaver, or have a mental or physical health problem and require care and support (see section immediately below).

Statutory support available to people that are ineligible for public funds

Children and young people under the age of 18 cannot claim welfare benefits in their own right (even Child Benefit can only be claimed by an adult aged 18 or over). However, unaccompanied children may be entitled to support, including accommodation and financial support from local authorities in Wales under the Children Act 1989 up to April 2016 and under Part 6 of the Social Services and Well-being (Wales) Act 2014 from April 2016. For more information on the rights and entitlements of unaccompanied asylum seeking children in Wales, please see Safeguarding and Promoting the Welfare of Unaccompanied Asylum Seeking Children and Young People: All Wales Practice Guidance. Former looked after children between the ages of 18 and 21 (or up to 24 if in full-time education) may be entitled to support as care leavers from local authorities in Wales under the Children Act 1989 up to April 2016 and under the Social Services and Well-being (Wales) Act 2014 from April 2016 (subject to immigration exclusions under Schedule 3 Nationality, Immigration and Asylum Act 2002). More information about the rights and entitlements of care leavers will be provided in a forthcoming Migration Services in Wales Briefing (please check http://welshrefugeecouncil.org.uk/migration-information for updates).

Families with dependent children who are ineligible for welfare benefits because they have NRPF or because they are mobile EU citizens that do not meet the eligibility criteria, may be entitled to support from local authorities in Wales under the Children Act 1989 up to April 2016 and under the Social Services and Well-being (Wales) Act 2014 from April 2016 (subject to immigration exclusions under Schedule 3 Nationality, Immigration and Asylum Act 2002), if they are destitute. More information about the rights and entitlements of destitute families with children can be found in the Migration Services in Wales briefing Children and families: Destitution, safeguarding and services under the Children Act 1989 (up to April 2016) and under the Social Services and Well-being (Wales) Act 2014 (from April 2016): http://welshrefugeecouncil.org.uk/migration-information/legal-briefings

Single adults (who do not have responsibility for dependant children) and have needs for care and support due to a physical or mental health problem may be entitled to accommodation and financial support under the National Assistance Act 1948 up to April 2016 and under the Social Services and Well-being (Wales) Act 2014 from April 2016 (subject to immigration exclusions under Schedule 3 Nationality, Immigration and Asylum Act 2002). Single adults (who do not have responsibility for dependent children) and do not have needs for care and support and are ineligible for welfare benefits (and are not asylum seekers) have no entitlement to any statutory safety net, even if they become destitute. However, some support may be available to them from voluntary sector or faith-based organisations (for information about local projects, see: http://naccom.org.uk). More information about the rights and entitlements of adults with needs for care and support and those with no entitlement to statutory safety net support will be provided in a forthcoming Migration Services in Wales Briefing (please check http://welshrefugeecouncil.org.uk/migration-information for updates).

Transition to welfare benefits for newly granted refugees

People granted refugee status, Discretionary Leave to Remain (DLR), Indefinite Leave to Remain (ILR) or Limited Leave to Remain (LLR) with recourse to public funds will be entitled to work and claim welfare benefits immediately. A determination of asylum claim or Home Office letter will be issued as proof of the Home Office’s decision, and this will usually be accompanied by a biometric residence permit confirming the person’s entitlement to work and claim welfare benefits. Single adults receiving Home Office asylum accommodation and financial support under Section 95 Immigration and Asylum Act 1999 will cease to receive that support 28 days after receiving a positive decision. Problems in the transition period from receiving Home Office asylum support are well documented, mainly due to waiting times for official documents, and Homeless Link have provided a useful document for support agencies to prepare for the transition from Home Office to welfare benefit support from the DWP and housing-related support from the local authority. In Wales, local authorities have a duty under the Housing (Wales) Act 2014, to take all reasonable steps to prevent someone from becoming homeless if they are threatened with homelessness within 56 days. This may include the provision of advice, support and assistance. A number of good practice examples on the issue of ‘move on’ in Wales are provided in a report by Shelter Cymru.

Those newly granted a form of immigration status will need to apply for a National Insurance (NINO) number in order to be able to work or apply for welfare benefits. Applications for welfare benefits can be made at Jobcentre Plus and for housing services at the local authority (more on applying for housing services below). In Wales, refugees in the transition period can apply for financial assistance from the Discretionary Assistance Fund. The Welsh Government’s statutory guidance on the allocation of social housing and assessments of homelessness (The Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness) recommends that local authorities, in assessing applications from former asylum seekers, should give careful consideration to the possibility that they may be vulnerable due to their lack of knowledge of welfare systems and poor language skills.

The Habitual Residence Test (more below) does not apply to refugees (and those with DLR and humanitarian protection), who are applying for welfare benefits.

Mobile EU citizens: eligibility for welfare benefits

The remainder of this briefing addresses the entitlements of mobile EU citizens to claim welfare benefits in the UK. The rights of mobile EU citizens to work and claim welfare benefits in other Member States are enshrined in the EU’s Citizens Directive (2004/38/EC) and are incorporated into UK domestic law under the Immigration (European Economic Area) Regulations 2006 and its various subsequent amendments.

Mobile EU citizens have an initial right to reside in another Member State for up to three months without conditions attached to this status, under Regulation 13. In the UK, mobile EU citizens cannot claim welfare benefits if their right to reside is on the basis of the initial three months right to reside. After the three month period, mobile EU citizens must come under the category of a ‘qualified person’ under the terms of the Citizens Directive in order to continue having a right to reside; that is, they must be either:

  1. a worker;
  2. self-employed;
  3. self-sufficient;
  4. a student; or
  5. a jobseeker.

Workers and self-employed people

Workers and self-employed mobile EU citizens and their family members[3] are entitled to claim welfare benefits (i.e. they must meet the eligibility requirements for the specific welfare benefit being applied for). Workers are defined as those who are engaged in activities that involve the provision of services under the direction of another person in exchange for remuneration. In order to be classified as a ‘worker’, the work undertaken must be ‘genuine and effective’ and not ‘marginal or ancillary’ (Levin v Staatssecretaris van Justitie ECJ Case 53/81). This means that the work cannot be irregular or with negligible remuneration, but it can be less than is necessary to be self-sufficient.

However, the UK government has imposed a minimum earnings threshold in order for the work of mobile EU citizens to be considered ‘genuine and effective’ and therefore to qualify them as a ‘worker’ under the terms of the Citizens Directive. The minimum income threshold is a two part test and applies to applications for Income-based Jobseekers Allowance, Housing Benefit, Child Benefit and Child Tax Credit. The threshold is set at earnings that average £155 per week or more over a three-month period. If the EU citizen’s earnings were at or above this level, they will automatically be considered to have ‘worker’ status. If their earnings are below this level, an assessment of their work activity is carried out. Consideration is given to whether their work was regular or intermittent, the period of their employment, whether their work was intended to be short-term or long-term at the outset, the number of hours they worked, and the level of their earnings. These factors will be considered by the DWP to determine whether their work activity is considered to be genuine and effective.

Former workers and retention of worker status

Former workers who are temporarily unable to continue working due to illness are able to retain their ‘worker status’, and therefore continue to be considered as qualified persons for the purpose of accessing welfare benefits. In such circumstances, they may be able to claim Employment and Support Allowance for a limited period whilst unable to work. Those who are involuntarily unemployed after continuous employment of 12 months and who register as jobseekers can also retain their ‘worker status’ for up to six months. Mobile EU citizens who begin parental leave in the late stages of pregnancy retain worker status and continue to do so after the child is born, as long as they return to work within ‘reasonable time’. In making this assessment, decision-makers must consider each individual according to the particular facts of the case such as the national rules on the duration of maternity leave (Jessy Saint Prix v Department for Work and Pensions ECJ C-507/12).

Jobseekers

Mobile EU citizens may have a right to reside as a jobseeker and claim welfare benefits for a limited period of time. However, this is subject to strict eligibility tests and recent policy changes have further restricted the support available to this group.

Job seeking mobile EU citizens can only claim welfare benefits if they can demonstrate that they are ‘habitually resident’ in the UK (see Habitual Residence Test section below) and, if they claim income-based Jobseeker’s Allowance, must have been resident in the UK for three months. They must also meet the conditionality requirements of the welfare benefit being claimed. Jobseekers who meet the conditions to claim Income-based Jobseekers Allowance (e.g. being able to demonstrate that they are ‘available and actively seeking work’) can claim this welfare benefit for up to 91 days. Beyond this time, mobile EU citizens with a right to reside as a jobseeker are required to undertake a Genuine Prospect of Work (GPOW) Test, which requires claimants to present ‘compelling evidence’ that they have a genuine prospect of securing work. This might include evidence of a job offer, evidence that the claimant is setting up a business or becoming self-employed or evidence of recently achieved qualifications that would likely lead to employment.

Since April 2014, mobile EU citizen jobseekers are not entitled to claim Housing Benefit. This also applies to workers who do not meet the minimum income threshold and are consequently classified as ‘jobseekers.’ Since July 2014, new jobseekers cannot claim Child Benefit or Child Tax Credit until they have been resident for three months.

Habitual Residence Test (HRT)

The Habitual Residence Test (HRT) applies to applications for means-tested welfare benefits, and its conditions, principally that applicants are resident and settled in the UK, must be met in order to be entitled to apply for those benefits.

Habitual residence under EU law refers to the place where a person’s ‘centre of interest’ lies and a decision on habitual residence must be made on the facts of each individual applicant. Applicants’ details are collated by Jobcentre Plus staff along with evidence of their identity, of their work history and of other factors relevant to the application and submitted in an electronic form to a central government department, where a decision is made on eligibility. It applies to all applicants for welfare benefits, including UK nationals, unless they fall into an exempt category. Those who fall into an exempt category include: mobile EU citizen workers or self-employed people (and their family members); mobile EU citizens that are permanent residents; refugees; people granted Discretionary Leave to Remain, Humanitarian Protection or Indefinite Leave to Remain under the Domestic Violence Rule; and people deported to the UK who are not subject to immigration control.

Habitual residence applies to the following benefits:

  • Attendance Allowance* 

  • Disability Living Allowance* 

  • Personal Independence Payment* 

  • Carer’s Allowance* 

  • income-based Jobseeker’s Allowance 

  • income-related Employment and Support Allowance 

  • Income Support 

  • Pension Credit 

  • Universal Credit 

  • Housing Benefit 
                                                                                                                                                                                                                            
  • Council Tax reduction 


There is no statutory definition of ‘habitual residence.’ The HRT involves questions that take into consideration a number of factors, including: a person’s length and continuity of stay in the UK, their reason for moving to the UK, what they have done to establish themselves in the UK, reasons for any absences, their plans for the future and their employment prospects. In December 2013, the government introduced more ‘robust questioning’ as part of the HRT including more individually-tailored questions, and for which applicants are required to provide more detailed answers and submit more evidence.

In 2004, the UK implemented a ‘right to reside test’ as part of the Habitual Residence Test. Those who are assessed as not having a ‘right to reside’ are automatically considered not to be habitually resident in the UK. As part of the ‘right to reside test,’ mobile EU citizens must present evidence that they meet the criteria of being a ‘qualified person.’

* It is a condition of entitlement for Attendance Allowance (AA), Disability Living Allowance (DLA), Personal Independence Payment (PIP) and Carer’s Allowance (CA) that the claimant be habitually resident in the CTA (which comprises the UK, the Channel Islands, The Isle of Man and the Republic of Ireland). There is no right to reside element considered for these benefits. It is also a condition of entitlement to AA, DLA, PIP and CA that, in respect of any day of potential entitlement, the claimant must have been present in the UK for a specified period in the past. The requirement is that on the day the benefit is claimed, the claimant must have been present in the UK for a period of (or periods totalling) 104 weeks in the 156 weeks immediately preceding that day.

Students and self-sufficient people

Mobile EU citizens who are studying in the UK or who are self-sufficient are qualified persons under the terms of the Citizens Directive and have a right to reside. Under EU law they must have comprehensive sickness insurance. Those deriving their right to reside as students or as self-sufficient people generally cannot apply for most welfare benefits, although they may be entitled to Child Benefit or Child Tax Credit, and to housing services in limited circumstances (more below).

Mobile EU citizens and Universal Credit

Universal Credit is a new welfare benefit currently being rolled out in stages across the UK and replaces six welfare benefits (Income-based JSA; Income-related Employment and Support Allowance; Housing Benefit; Child Tax Credit, Working Tax Credit and Income Support). It is for people who are unemployed, unwell or on low incomes and aims to simplify the welfare benefit system, including for those transitioning between unemployment and work.

Under the Universal Credit (EEA Jobseekers) Amendment Regulations 2015, mobile EU citizens whose right to reside is based on being a jobseeker will not be considered to be habitually resident for the purposes of claiming Universal Credit.

Social assistance and ‘unreasonable burden’

Those who cannot be classified as a ‘qualified person’ will only have a right to reside if they are not an ‘unreasonable burden on the social assistance system. However, in the UK, mobile EU citizens need to have a right to reside in order to apply for social assistance (which is, essentially, means-tested benefits), which means that social assistance is unlikely to be being claimed where they cannot be classified as a qualified person, having a right to reside.

Derived rights and family members of mobile EU citizens

Family members with a direct ascending or descending relationship with a qualified person can derive their rights under the Citizens Directive (including to work and claim welfare benefits) from that person. This includes nationals of countries outside the EEA.

Nationals of countries outside the EEA may derive an EU right of residence from a national of an EEA country for whom they are a primary carer, under the ‘Zambrano ruling’ (Ruiz Zambrano (European citizenship) [2010] EUECJ C-34/09). In such circumstances, they will have a right to work, but not to claim welfare benefits. In Wales, those deriving their right of residence under the Zambrano ruling may be entitled to an allocation of social housing or to claim homelessness assistance if they made their application before 31 October 2014.

If a mobile EU citizen meets the conditions for claiming Child Benefit and Child Tax Credit, they can claim this for children living in other EEA countries, because the ordinary residence and presence requirements are not taken into account. For more information, see: http://researchbriefings.files.parliament.uk/documents/SN06561/SN06561.pdf

Former workers may retain their worker status if they are the primary carer of a child in general education (usually when aged 5-18), enabling them to claim welfare benefits, as long as they also pass the habitual residence test (Case C-480/08 Teixeira v LB Lambeth [2010] ECR I01107).

Permanent residents

Mobile EU citizens acquire permanent residence after five years continuous lawful residence in another Member State and thereafter have the same rights in relation to welfare benefits as citizens of that Member State. Other groups that acquire permanent residence include people who become permanently incapacitated, people who stop working at retirement age and early retirees who have worked in the UK for 12 months. Permanent residents are exempt from the Right to Reside Test but must pass the Habitual Residence Test.

EU accession states

EU law allows Member States to implement transitional arrangements allowing the limitation of certain labour market and welfare rights of accession state nationals for a period of up to seven years. When ten countries joined the EU in 2004, the UK, Ireland and Sweden did not impose restrictions on access to the labour market (except for a requirement to register). However, they did implement certain restrictions to accessing welfare benefits for ‘newer’ jobseekers from eight of those countries (all except Cyprus and Malta); these are more commonly known as the Accession 8 (A8) countries. This meant that nationals of the A8 countries could only claim most welfare benefits once they had worked continuously for a period of 12 months. Unlike the UK, Ireland and Sweden, other EU Member States imposed restrictions to both their labour market and welfare state for the accession state nationals in 2004.

In the UK, the same restrictions to welfare benefits applied to Romanian and Bulgarian nationals (nationals of A2 countries) from January 2007 to December 2013, however their access to the labour market was more restricted than for A8 nationals in the earlier transitional period, as it was limited to self-employment or occupations with labour shortages.

Transitional arrangements affecting access to labour markets and welfare state services for A8 and A2 nationals have now ended and their eligibility to work and to access welfare benefits is on the same footing as other mobile EU citizens (with the exception of Croatian nationals).

Croatian nationals currently face exclusions to the labour market, and they can only claim most welfare benefits once they have worked continuously for 12 months as an authorised worker. These transitional arrangements will be in place up to at least end June 2018 and possibly until end June 2020.

Exporting benefits from home Member States

Mobile EU citizens who receive a contributory unemployment benefit in the country where they last worked can have their benefit exported to the UK for three months after they arrive, and if the other country allows, for a further three months after that. The rules on exporting contributory benefits, which are outlined in EU Regulation 883/2004, also apply to other benefit types such as retirement pensions and invalidity benefits which can be imported to the UK on an indefinite basis from another Member State.

In cases where mobile EU citizens had worked in the UK for a time but not long enough to qualify for contribution-based Jobseeker’s Allowance, social security contributions made in other Member States can, in some circumstances, be taken into consideration in the assessment of the UK benefit. .

Housing Services

Housing services can be provided in the form of Housing Benefit, Homelessness Assistance and the allocation of social housing. Entitlement to claim these benefits are determined by local authority housing departments, rather than the job centre.

Housing Benefit helps towards rent payments for people on low incomes; homelessness assistance usually comprises the provision of emergency accommodation for those that are assessed by the local authority as being homeless; social housing may be allocated to those with longer-term housing needs either within council-provided or housing association-provided accommodation.

In Wales, local authority powers for the allocation of social housing are given under Part 6 of the Housing Act 1996, and in relation to homelessness assistance, under the Housing (Wales) Act 2014. Regulations governing the eligibility under these statutes, which relate principally to migrants, are provided in the Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014. In accordance with Section 60 Housing (Wales) Act 2014, local authorities have a statutory duty to ensure there is a provision of information, advice and assistance in accessing help to anyone in its area, or with a local connection to its area, who present to them for assistance, including people who are ineligible for other housing assistance under Chapter 2 of Part 2 of the Act.[4]

Local authorities in Wales are required to have regard for the Welsh Government’s statutory guidance on the allocation of social housing and assessments of homelessness: The Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness.

Housing Benefit, Homelessness Assistance and allocation of social housing are all public funds as listed under Paragraph 6 of the Immigration Rules, and as such, people with NRPF as a condition of their leave to enter or remain in the UK are generally not able to claim these three housing services in their own right.

Those with recourse to public funds, including refugees, people granted DLR, Humanitarian Protection, ILR, LLR with recourse to public funds and mobile EU citizen workers/self-employed people (and their family members), including those with retained worker status, are entitled to claim Housing Benefit and will need to meet the specific eligibility requirements of this means-tested welfare benefit.

Since March 2014, the UK has removed the entitlement of mobile EU citizens with a right to reside on the basis of being a jobseeker to claim Housing Benefit. Workers who do not meet the minimum income threshold will be considered jobseekers and will also not be entitled to claim Housing Benefit.

People who are entitled to be allocated social housing are detailed in Regulation 3 of the Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014 and include people with refugee status or humanitarian protection, people with leave to enter or remain that is not subject to the NRPF condition, people with Indefinite Leave to Remain (ILR) or permanent residence that are habitually resident, and people with an EU right to reside as workers/self-employed people (and their family members). People who are not entitled to be allocated social housing are detailed in Regulation 4 of the same Regulations and include people who are not habitually resident in the UK and whose EU right to reside is solely as a jobseeker or solely because they are in their first three months of residence in the UK, or because they are a ‘Zambrano carer’ and people who are subject to immigration control and have NRPF.

Those entitled to be allocated social housing will be subject to the same eligibility process as UK nationals, which takes into consideration a range of factors, including their local connection to the local authority area and whether they fall into a priority need group, such as households with pregnant women, dependent children, a vulnerable person (on account of old age, physical or mental illness or disability, for example), or being a victim of domestic violence.

Homeless people who are entitled to claim Homelessness Assistance are detailed under Regulation 3 of the Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014 and include people with refugee status or humanitarian protection, people with leave to enter or remain that is not subject to the NRPF condition, people with Indefinite Leave to Remain (ILR) or permanent residence that are habitually resident, asylum seekers who applied for asylum before 3 April 2000, and people with an EU right to reside as workers/self-employed people (and their family members). People who are not entitled to be allocated social housing are detailed in Regulation 6 of the same Regulations and include people who are not habitually resident in the UK and whose EU right to reside is as a jobseeker or because they are in their first three months of residence in the UK or because they are a ‘Zambrano carer’ and people who are subject to immigration control and have NRPF.

Those entitled to claim Homelessness Assistance will be subject to the same eligibility process as UK nationals, that is, determining whether they can be classified as ‘homeless’ for the purpose of accessing this housing-related benefit. This assessment takes into consideration a range of factors, including whether they are ‘intentionally homeless’ and whether they have a local connection.

Further Resources

Key Legislation

Statutory guidance

Useful websites and publications

Acknowledgements

I am very grateful to Alicja Zalesinska, Director, Tai Pawb, Sue Lukes, Director, Migration Work, and the Department for Work and Pensions for their expert comments and suggestions on this Briefing.

 

[1] Those whose leave to enter or remain in the UK is given as a result of a maintenance undertaking may be able to claim public funds if they have been resident for at least five years or if their sponsor dies.

[2] The EEA comprises the 28 EU Member States (Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the UK) and Iceland, Norway, Liechtenstein and Switzerland.

[3] Direct descendants and ascendants of mobile EU citizens derive their rights under EU if the person on whom they are dependent is a worker/self-employed person for the purposes of Directive 2004/38/EC. This includes third country nationals.

[4] Chapter 9 of the Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness provides information on the provision of information, advice and assistance.

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