EEA migrants rights, Roma rights and recent changes. Part 2. Practitioners training 16 th October 2014, Luton

Transcription

1 EEA migrants rights, Roma rights and recent changes. Part 2 Practitioners training 16 th October 2014, Luton

2 Mission: To promote awareness of European law rights and assist people in vulnerable circumstances to assert those rights. What we do: Free written legal advice on EU free movement law Representation and referral Free training for NGOs Information sheets Free information sessions Take cases to the European Court of Human Rights 2

3 Objectives of this session 1. Familiarise you with the rights of EEA nationals and their family members, primarily but not exclusively in the context of welfare support. 2. Improve your ability to find solutions to cases you come across. Format: Introductions Summary of basic principles Recent changes Workshop

4 What we will cover Summary of basic principles (13:00 13:10) Recent changes (13:10 14:00) Workshop (14:10 15:00)

5 Who Are EEA Nationals? Nationals of: Austria, Belgium, Bulgaria, Cyprus, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden. Switzerland not EEA but on the basis of bilateral agreements, Swiss nationals have the same freedom of movement rights as EEA nationals. The UK is not included! A8 countries are underlined A2 countries are hyphen-underlined Croatia is in bold red 5

6 EU Law At the top of the hierarchy of EU law there are three treaties (known together as the Lisbon Treaty): Treaty on European Union (TEU) broad principles and institutional framework Treaty on the Functioning of the EU (TFEU or TOFU) nuts and bolts of competence and law making Charter of Fundamental Rights contains rights and principles of a justiciable character (but there is a Protocol limiting this for the UK, currently at issue in litigation before the Court of Justice of the European Union) 6

7 The Sources of EU Law There is a hierarchy of law in the EU, when making a case you always want to cite the strongest sources of law. Here is an overview of the hierarchy: Treaties (TEU, TFEU[TOFU], CFR) Secondary Sources (Regulations, Directives) Case law (Court of Justice of the European Union, national courts) Note that EU law is supreme in domestic legal systems. In the UK, the European Communities Act 1972 established this. 7

8 Some relevant TFEU provisions Article Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship. 2. They shall have, inter alia: (a) the right to move and reside freely within the territory of the Member States. These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder. 8

9 More TFEU Article Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted 9

10 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 treatment.

11 Basic Residence Rights The Citizens Directive (2004/38/EC) Before 1 May 2011, A8 nationals had to register their work. Before 1 January 2014, A2 nationals were not able to work without worker authorisation unless exempt. Croatian nationals are subject to restrictions on access to the labour market. Permanent residence (normally after five years, earlier in some circumstances) Right to reside for more than three months as a worker, selfemployed person, self-sufficient person, student or family member Right to reside for three months 11

12 Exclusion of EU Nationals or Their Family Members The free movement rights of EU nationals and their family members can only be restricted under the Directive if their exclusion/expulsion is necessary in terms of public policy, public security or public health (Arts 27 et seq.). There is a hierarchy of protection depending on how long the person has been here. Those in the UK for ten years or more: imperative grounds of public security Permanent residents: serious grounds of public policy or public security Basic standard: public policy or public security, present threat to the fundamental interests of society 12

13 A2 Nationals Bulgaria and Romania joined the EU on 1 January Until 1 January 2014, most Bulgarian and Romanian nationals needed to have prior authorisation from the UKBA in order to work in the UK. Some were exempt from this requirement, however, e.g. selfemployed people. As of 1 January 2014, A2 nationals no longer face restrictions on access to the labour market. This means that they can exercise a right to reside as a worker/jobseeker in the same way as all other EEA nationals. 13

14 Basic residence rights continued Self-sufficient (Article 7(1)(b) Directive 2004/38): sufficient resources not to be an unreasonable burden on the social assistance system of the UK and comprehensive sickness insurance Student (Article 7(1)(c) Directive 2004/38): declaration of sufficient resources, comprehensive sickness insurance & permitted educational institution Jobseeker (under EU law): seeking work & stand a genuine chance of finding it. From the outset, must be deemed to stand a genuine chance of finding work 14

15 Family Members: Spouses, Civil Partners, Children and Dependants As long as the EEA national is exercising Treaty rights in the UK, the following family members have a right to live and work here: Spouses and civil partners, including those of the same sex Direct descendants under age 21, including stepchildren and stepgrandchildren Other direct descendants who are dependent on the EEA national or the spouse/civil partner (e.g. children, grandchildren) Dependent direct relatives in the ascending line (e.g. parents), including relatives of the spouse/partner. See: Lim (EEA dependency) [2013] UKUT 437 (IAC) 15

16 Family Members Durable Partners and Other Family Members The UK is required to facilitate entry and residence for: Durable partners Other family members who were dependent on, or members of the household of, the EEA national in the EEA national s home country Other family members whose health strictly requires personal care by the EEA national 16

17 Questions 1. A Polish man living in the UK has a Thai wife. Can she come to live in the UK? 2. A Romanian worker lives in the UK. Her Romanian mother lives in Romania but has recently had a fall and needs more care. Can she come and live in the UK? 17

18 Access to Social Assistance Benefits Which Benefits Are We Talking About? Housing Benefit Council Tax Benefit Income-based Jobseeker s Allowance Income-related Employment and Support Allowance State Pension Credit Working Tax Credit Child Benefit and Child Tax Credit 18

19 The Test Actual habitual residence Right to reside Not a person from abroad The problem will almost always be the rightto-reside test. 19

20 Passporting Actual habitual residence Right to reside Not a person from abroad Some people automatically pass the right to reside test just by exercising certain residence rights: workers, self-employed, those who have retained worker or self-employed status (more on this in a minute), their family members, early permanent residents. 20

21 What counts as a qualifying RTR? For most benefits: Worker/self-employed Retained worker/self-employed status Permanent resident Family member of EEA national in one of these categories Primary carer of EEA national worker s child in education Exceptionally, self-sufficient person (following CJEU judgment in Brey) 21

22 Questions 1. A Czech national who arrived in the UK one year ago and has been working ever since is about to stop working due to pregnancy. She wants to know if she will be eligible for Income Support (a benefit for lone parents). She is a lone parent. Will she be eligible? What might make her eligible? 2. The Romanian mother from earlier will she be eligible for State Pension Credit? 22

23 Recent Changes to Social Assistance Benefits What do the recent changes concern? Income-based Jobseeker s Allowance (1 st January, 1 st March) Retaining Worker status (1 st January, 1 st March) Housing Benefit (1 st April) Child Benefit and Child Tax Credit (1 st July) But access to other benefits is affected too (e.g. ESA, Income Support) 23

24 Changes to Jobseeker s Allowance (Income-Based) From 1 January 2014: People who have never worked in the UK and new arrivals: No benefits for 3 months after arrival Can exercise right to reside as a jobseeker and/or claim Jobseeker s Allowance (Income-Based) for 6 months After that they need to provide compelling evidence that they have a genuine chance of finding work From 1 April 2014: No Housing Benefit for jobseekers at all Note: persons who are jobseekers but are exercising a right to reside as, for instance, family members of an EU worker are eligible for Housing Benefit 24

25 Retained worker status (1) Previously: If worked 1+ years, involuntarily unemployed & duly registered as jobseeker with relevant employment office, retained worker status indefinitely If worked less than 1 year, involuntarily unemployed and duly registered as jobseeker, retained worker status for no less than 6 months 25

26 Retained worker status (2) Now: 1 yr+ route: Must provide evidence that seeking work & stand a genuine chance of finding it from the start After 6 months, must provide compelling evidence From 1 March 2014, subject to Minimum Earnings Threshold test to prove they were a worker Under 1 year s work route: Must provide evidence that seeking work & stand a genuine chance of finding it Can only retain worker status for 6 months (although may then exercise their right to reside as a jobseeker) From 1 March 2014, subject to Minimum Earnings Threshold test to prove they were a worker 26

27 New Minimum Earnings Threshold Since 1 March 2014, in order to claim social assistance benefits on the basis of a right to reside as a worker, EEA migrants need to show that they have earned on average 149 per week for the past 3 months Anyone below that threshold will be subject to a fuller assessment of whether their work is genuine and effective This affects people who make new claims for in-work benefits, either as workers or self-employed persons (e.g. Housing Benefit, tax credits, Child Benefit, in-work JSA) and employees who lose their jobs (and need to show they retain worker status, as explained) * NB: self-employed persons who stop working and claim JSA(IB) can do so but do not retain self-employed status. They do so only if they stop working due to illness or accident 27

28 What is genuine and effective? Relevant considerations: was work regular or sporadic? how long did it last for? was work always going to be short-term (e.g. short fixedterm contract) or long-term (e.g. permanent contract)? how many hours per week did the person work? how much were they earning? Each case and everyone s situation has to be assessed individually by the DWP. Advice: provide evidence that work is genuine and effective with the application, at the start of the process already 28

29 Examples There is case law confirming that part-time work or selfemployment (even 10 hours a week) can be considered genuine and effective C-444/93 Megner & Scheffel: 2 cleaners working max 2 hours pd, 5 days pw. Question is whether work is of real economic value to the employer * NB: self-employed persons who stop working and claim JSA(IB) can do so but do not retain self-employed status. They only retain it if they stop working due to illness or accident 29

30 More examples In Bristol City Council v FV (HB) [2011] UKUT 494 (AAC), CH/2859/11, a UK court considered a Housing Benefit application of a Romanian citizen who had arrived in the UK in She worked as a Big Issue seller for about 3 years, approx. 16 hours per week, rising later to 24. Profits for August to November 2010 averaged 45pw. For November and December 2010 this rose to 150 per week, giving an average weekly profit of 90 per week for August to December The court found that this amounted to genuine and effective self-employment = worker status = entitlement to Housing Benefit. 30

31 More on Jobseeker status If the person never worked in the UK, if they are a new migrant, if they don t pass the Minimum Earnings Threshold and have no other right to reside, they are a jobseeker When they claim Jobseeker s Allowance, they have no entitlement to Housing Benefit at all They can only get Jobseeker s Allowance for 6 months and possibly further if they can provide compelling evidence that they will obtain work. This is potentially going to be very difficult to show. This may be further reduce to 3 months soon. Overall, they can only exercise a right to reside as jobseeker for 6 months unless they can provide compelling evidence, as above. 31

32 Child Benefit and Child Tax Credit From 1 July 2014, new jobseekers who move to the UK need to live here for 3 months in order to claim Child Benefit and Child Tax Credit Those with jobseeker status but no other right to reside can only claim Child Benefit and Child Tax Credit for 6 months unless, again, they can provide compelling evidence that they will obtain work. We suspect that this will again provide quite difficult Child Benefit (General) and the Tax Credits (Residence) (Amendment) Regulations 2014 (SI No. 1511) 32

33 Interpreting In a press release issued jointly by the Treasury, DWP and HMRC on 8 April 2014, it was announced that from 9 April, The routine use of interpreting services will stop from 9 April 2014 for all new JSA claimants. 33

34 Level of English From the end of the month (28 April) their spoken English will be tested in England. If claimants language is found to be a barrier to looking for work they will be expected to improve it. 34

35 Other Ways to Get an EEA National Social Assistance Benefits 35

36 1. Show Permanent Residence Worth pursuing for any EEA national who has lived in the UK for five years, reached pension age OR who has become permanently incapacitated Permanently resident EEA nationals are entitled to access all benefits, housing and homelessness assistance on exactly the same terms as British citizens 36

37 More detail: Permanent Residence Normally after 5 years of legal and continuous residence. Continuous means without a break of more than six months in one year. Legal means exercising residence rights. There is a problem around EEA nationals who have been economically inactive. Issues also with A8 nationals who did not register employment under WRS prior to 1 May No problem if self-employed (there was no need to register). Some EEA nationals acquire permanent residence sooner: If they have lived in the UK for at least 3 years, worked for at least 12 months and have reached pension age. If they have lived in the UK for at least 2 years and stop work or self-employment due to permanent incapacity. Acquired automatically does not depend on a document certifying PR (but it can be useful). Can rely on any 5-year period: need not be a period immediately preceding application for benefits/pr 37

38 2. Show you are a family member of an EEA worker, for example As long as the EEA national is exercising Treaty rights in the UK, the following family members have a right to live and work here: Spouses and civil partners, including those of the same sex Direct descendants under age 21, including stepchildren and step-grandchildren Other direct descendants who are dependent on the EEA national or the spouse/civil partner (e.g. children, grandchildren) Dependent direct relatives in the ascending line (e.g. parents), including relatives of the spouse/partner. See: Lim (EEA dependency) [2013] UKUT 437 (IAC) 38

39 Family Members Durable Partners and Other Family Members The UK is required to facilitate entry and residence for: Durable partners (unmarried but must show durable relationship) Other family members who were dependent on, or members of the household of, the EEA national in the EEA national s home country Other family members whose health strictly requires personal care by the EEA national 39

40 3. Show that You are the Primary Carer of the Child-in-Education of a Worker This rule comes from the Court of Justice of the EU s interpretation of the Treaties. When dealing with the benefits authorities, it is called 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. An EEA national has worked in the UK and has a child who was here at some point while the worker was here and is now in education The rule doesn t apply where the parent was self-employed rather than employed. so the child can stay in the UK to finish her/his education and her/his primary carer can stay and get benefits. 40

41 The Teixeira and Ibrahim rule Maria Teixeira v London Borough of Lambeth and Secretary of State for the Home Department [2010] CJEU C-480/08 and London Borough of Harrow v Nimco Hassan Ibrahim and Secretary of State for the Home Department [2008] CJEU C-310/08 Ms Teixeria (a Portuguese national) and Ms Ibrahim (a Somali national) had sought homelessness assistance. At the time of their applications to the boroughs of Lambeth and Harrow respectively, they were economically inactive and not self-sufficient. Ms Teixeira had worked in the UK but was no longer in the labour market and had not retained her worker status. Ms Ibrahim had come to the UK to join her husband, a Danish national who was working in the UK. He stopped working and at the time of the application had left the UK. Both were found to be ineligible for homeless assistance on the basis that they did not have a right to reside in the UK. The Court ruled that children of EU migrant workers should enjoy access to education on an equal basis with British children. The judgments have been interpreted (and incorporated into UK law) as guaranteeing a right for a child, who has lived in the UK at some point while her/his EU migrant parent was working here, to start going to school, to stay here to finish her/his education, to be accompanied here by her/his primary carer, and for the child and the primary carer to receive social assistance benefits and social housing. See Regulation 15A(4) of the Immigration (European Economic Area) Regulations

42 What Should I Ask When Figuring Out Whether Someone May Have a Right to Reside? What is your nationality? When did you come to the UK? Have you left the UK since then? For how long? (i.e. might you be a permanent resident?) Have you ever worked or been self-employed in the UK? When? How many hours per week? Were you paying National Insurance contributions? (If so, the person may be eligible for Contributions-based JSA, for instance) Are you still working/engaging in self-employment? Why did you stop? If you re an A8 national, was your work prior to 1 May 2011 registered? If you re an A2 national and were employed before 2014, was your work authorised? Might you have been exempt from the worker authorisation requirement? Do you have any family members in the UK? Who are they? What are their nationalities? What are they doing (e.g. studying, working)? If you have children, are they in school? Are you their primary carer? Can you sign on as a jobseeker? 42

43 Access to Evidence About the EEA National Benefits Cases Kerr v Department for Social Development, [2004] UKSC 23, para 62: The UK Supreme Court found that the benefits authorities must make enquiries to figure out whether the EEA national has been working or self-employed. What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced. 43

44 The New Barriers & Saint Prix Prior to the judgment of the Court of Justice of the European Union ( CJEU ) in the case of C-507/12 Saint Prix, EEA national women who stopped work in the latter stages of pregnancy were not recognised as having either worker status or retained worker status in the UK. Previously they could, at least, claim both IB-JSA and HB while they were still physically able to work. Now, even if they register as a jobseeker as soon as they are able to return to work after giving birth, they will not be able to claim HB. This will place them at greater risk of homelessness a risk exacerbated by the fact female single mothers take longer to find work. However, the recent judgment of the CJEU should hopefully mean that most women in these circumstances will retain worker status and presumptively remain entitled to receive HB when they return to the job market 44

45 The New Barriers & Saint Prix The CJEU found in C-507/12 Saint Prix (on 19 June 2014) that: Article 45 TFEU must be interpreted as meaning that a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth retains the status of worker, within the meaning of that article, provided she returns to work or finds another job within a reasonable period after the birth of her child. The Court also reaffirmed the primacy of the TFEU over Directive 2004/38, noting that: 31. it does not follow from either Article 7 of Directive 2004/38, considered as a whole, or from the other provisions of that directive, that, in such circumstances, a citizen of the Union who does not fulfil the conditions laid down in that article is, therefore, systematically deprived of the status of worker, within the meaning of Article 45 TFEU. 45

46 Alternative support The Nationality and Asylum Act 2002 excludes EEA nationals who have reached the age of majority from accessing assistance under the National Assistance Act 1948 and the Children Act unless it would breach their rights under the European Convention of Human Rights or EU law to refuse them such assistance. EEA nationals who are refused HB and at risk of homelessness or removal from the UK may increasingly be forced to rely on their convention and/or EU law rights to seek to compel Local Authorities to provide assistance. In addition to Article 8 of the ECHR, the EU Charter of Fundamental Rights includes: Article 1 (right to human dignity); Article 7 (right to respect for private and family life); Article 15 (including the right to seek work); and Article 34 (right to social security and social assistance). However, in the AIRE Centre s experience, where families face homelessness, Local Authorities often respond by refusing parents support, whilst threatening to take children into care. 46

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