1. Invisible EU Migrants Training 9 July 2015, Brussels, Belgium
Introduction to the Directive & Fundamental Rights for EU Citizens under the TFEU
Invisible EU Migrants Training
9 July 2015, Brussels, Belgium

2. MIGRANTS RESOURCE CENTRE LEGAL ADVICE SERVICES
MRC has a vision of a British Society in which migrants and refugees are empowered and valued for their contribution to society.
MRC offers a range of advice services for migrants, refugees and asylum seekers.
Our work with EPIM under this project is to strategically influence EU policy and law by identifying legal casework in relation to immigration & access to benefits.
Activities:
Provide free legal advice to individuals on their rights under
EU law, Asylum & Immigration
Take cases to the High Court of Justice

3. Objectives of This Training
Provide an overview of the rights of Union Citizens to exercise their free movement rights and entitlement to claim benefits.
Format:
Overview of basic principles
Drill down into some specific areas (with reference to case law)
Take any questions from the audience

4. RESIDENCE RIGHTS

5. Who Are Union Citizens? Nationals of these countries:
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, United Kingdom
A8 countries are underlined
A2 countries are hyphen-underlined
Nationals of EEA states (Iceland, Liechtenstein and Norway) and Switzerland are also included.

6. What is the source of Free Movement Rights for Union Citizens?
Three Treaties, which, together, make up the Lisbon Treaty:
Treaty on the European Union
Treaty on the Functioning of the European Union
Charter of Fundamental Rights of the European Union (status of Treaty)
Secondary Legislation:
Directive 2004/38 – “The Citizens Directive”
Regulation 883/2004 – The Social Security Coordination Regulation

7. Basic Residence Rights
Member States are allowed to impose restrictions on the right of Croatian nationals to take up work.
As of 1 January 2014, there are no longer restrictions on the right of A2 nationals to work in other Member States
In TG v Secretary of State for Work and Pensions (PC) [2015] UKUT 0050 (AAC) the UKUT has just ruled that the extension of the ‘WRS’ from 2009 to 2011 was disproportionate & unlawful.
Permanent residence (normally after five years, earlier in some circumstances) (Articles 16 and 17 Directive 2004/38
Right to reside for more than three months as a worker, self-employed person, self-sufficient person, student or family member (Article 7 Directive 2004/38). Also, right to reside as jobseeker (Article 45 TFEU).
Right to reside for three months
(Article 6 Directive 2004/38)

8. Extended right of residence
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. Possible to retain worker status.

9. Article 16 Permanent Residence
Article 16(1): Union Citizens automatically acquire the right of permanent residence after five years’ continuous legal residence
Article 16(2): the family members of Union Citizens, whatever their nationality, automatically acquire the right of after 5 years’ continuous legal residence with their Union Citizen family member
“Continuous” - Article 16(3): continuity of residence is not interrupted by absences of 6 or longer in the case of maternity, illness, military service, or other compelling reasons
“Legal” - Exercising a right to reside under the Directive – in particular Article 7 (C-424/10 Ziolkowski). Doesn’t include derived right of residence under TFEU – e.g. ‘Teixeira parents’ – (C-480/08 Alarape)
Article 16(4): once acquired, only lost through absences of more than 2 consecutive years
Any five year period (even before date for implementation (C-325/09 Dias; C-162/09 Lassal)

10. Family Members: Spouses, Civil Partners, Children and Dependants
As long as the Union Citizen is exercising Treaty rights in the host Member State, the following family members have a right to live and work there:
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

11. Family Members – Durable Partners and Other Family Members
Host Member States are required to ‘facilitate entry and residence’ for:
Durable partners
Other family members who were dependent on, or members of the household of, the Union Citizen in the Union Citizen’s home country
Other family members whose health ‘strictly requires’ personal care by the EEA national
What is meant by “facilitate entry and residence”?
Still unclear
C-83/11 Rahman – Member States should set out clear criteria

12. Family Members – Retaining a Right to Reside (Death or Departure)
Under some circumstances, it is possible for the spouse/civil partner and/or child of an EEA national to retain a right to reside in the UK if the EEA national dies or leaves the UK.
The rules in this area are found in Article 12 of the
Directive and are quite complex.
Feel free to contact us for advice if this comes up.

13. Retaining a Right to Reside (Divorce or Termination of Civil Partnership)
Article 13 of Directive 2004/38 provides that the spouse/civil partner of an EEA national exercising treaty rights can retain a right to reside in the UK following a divorce, annulment or termination of the civil partnership if…

14. … The spouse/partner is an EEA national and is exercising her own treaty rights, or begins to do so.
… Prior to the initiation of the divorce or annulment proceedings or the termination of the civil partnership, the marriage or partnership has lasted at least three years, including at least one year in the host Member State. (This provision applies to non-EEA nationals.)
… The spouses/partners agree, or a court orders, that the non-EEA parent will have custody of the couple’s children.
… The retention of residence rights is ‘warranted by particularly difficult circumstances’, including domestic violence that occurred during the marriage/partnership. (This provision applies to non-EEA nationals.)
… Under some circumstances, when the non-EEA spouse/partner has a right of access to a minor child.
Non-EEA nationals must fulfil the conditions for qualifying as a worker, self-employed person or self-sufficient person.

15. Separated Durable Partners
Under EU law at present, durable partners do not have a well-established right to retain their right to reside in the UK if the relationship breaks down.
However, in the UK the First-tier Tribunal has found in at least two AIRE Centre cases that durable partners can retain their rights in domestic violence cases.
Please let us know if you would like more info!

16. Derivative Residence Rights
Some people who do not count as family members may have a derivative right of residence in the UK as:
Teixeira & Ibrahim parents/primary carers
Chen parents/primary carers
Zambrano parents/primary carers

17. Protection against expulsion
An expulsion decision may not be taken against a Union Citizen who has been resident in the host member state in the 10 years preceding the expulsion decision; or who is a minor; except on imperative grounds of public security
(Article 28(3) Directive 2004/38)
An expulsion decision may not be taken against Union Citizens and their family members who have acquired the right of permanent residence except on serious grounds of public policy or public security
(Article 28(2) Directive 2004/38
An expulsion decision cannot be made against a Union Citizen or his/her family members except on grounds of public policy, public security or public health.
(Article 27 Directive 2004/38)
Directive 2004/38 provides a hierarchy of protection against expulsion, based on level of integration into the host Member State.
In each case, the expulsion decision must comply with the principle of proportionality; and the conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
(Articles Directive 2004/38)

18. Rights to claim benefits

19. EU Law Framework (1)
EU law draws a distinction between social assistance benefits and social security benefits:
Social assistance: general means tested benefits designed to bring people up to a minimum subsistence level
Social security: benefits designed to protect against specific social security risks, including: maternity, illness, disability, old age (Regulation 883/2004)
Special non-contributory benefits – a hybrid

20. EU Framework (2) Social Assistance Benefits
Article 18 TFEU (ex Article 12 TEC)
‘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’.
Article 21 TFEU (ex Article 18 TEC)
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 to give them effect. …
Article 24 Directive 2004/38:
‘(1) Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member Sate shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence’
‘(2) By way of derogation from paragraph 1, the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b), nor shall it be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training consisting in student grants or student loans to persons other than workers, self-employed persons, persons ho retain such status and members of their families’

21. EU Framework (3) Social Assistance Benefits
Effect:
Must provide social assistance benefits to Union citizens who have acquired the right of Permanent residence, and those exercising a right to reside under Article 7 (worker, self-employed, retained worker or self-employed status, self-sufficient, student, family members thereof)
Can deny social assistance benefits to Union citizens exercising initial right of residence under Article 6
Can deny social assistance benefits to jobseekers (those relying on RTR under Art 14(4)(b))
However: Case C-22/08 Vatsouras – cannot deny jobseekers ‘benefit(s) of a financial nature intended to facilitate access to the labour market’ (para 37)

22. Seven Ways to Get an EEA National Social Assistance Benefits
Jobseeker
Worker
Self-employed
Retained Worker/Retained Self-employed
Permanent Resident
Family Member
Primary Carer of the Child-in-Education of a worker

23. 1 Become a jobseeker
Union citizen jobseekers with a genuine link to their host Member State are entitled to claim benefits of a financial nature that are intended to facilitate access to the labour market (C-22/08 Vatsouras)
To exercise a right to reside as a jobseeker, they must:
Be genuinely seeking work AND
Stand a genuine chance of finding it (for the first six months of job-seeking, they must be deemed to stand a genuine chance of finding work (C-292/89 Antonissen)
Note the recent restrictions on applications for JSA in the UK…

24. MRC Case Study
Miss X arrives in the UK in June She starts to work on 1 July On 30 June 2014 she is made redundant.
Miss X then claims Jobseeker’s Allowance on 1 July Her housing benefit is terminated and the local authority informs her that the Department for Works & Pensions has confirmed to them that “she did not retain worker status and therefore she is residing as a jobseeker and according to new regulations introduced in April 2014, as an EEA job seeker she does not retain worker status and therefore does not qualify for housing benefit”.
Housing Benefit Decision is challenged as Miss X does retain worker status and therefore still entitled to housing benefit:
From 1 July 2014 to 3 November 2014 (client started to work again) she remains a qualified person as she retained worker status while duly recorded as involuntarily unemployed and registered as a jobseeker with the DWP; Reg 6 EEA Regulations 2006 amended by Reg 3 the EEA Amending Regulations 2014.

25. 2. Work
A Union Citizen worker, even working part-time (as little as ten hours per week), is eligible for all of the benefits that an Irish Citizen would get.
But…
Croatian nationals may be subject to restrictions on access to the labour market

26. What Work Counts?
Part-time work is sufficient. Work must be ‘genuine and effective’, not ‘marginal or ancillary’ but ECJ/CJEU case law suggests that even a low level of work may be enough:
C-44/93 Megner and Scheffel: cleaners working a maximum of 2 hours per day, five days per week
C-171/88 Rinner – Kuhn: 10 hours per week sufficient
C-14/09 Hava Genc v Land Berlin: 5.5 hours per week as a cleaner, at a little over 7EUR per hour was enough in all the circumstances of the case, including holiday entitlement (Turkish Association Agreement case but should apply, by analogy to Union Citizens)
C-139/85 Kempf: no need to earn minimum subsistence level (although level of earnings may be indicative of whether work is genuine and effective.
Work must also be of economic value:
Volunteers & Carers?
Women on maternity leave? (C-507/12 Jessy Saint Prix v Secretary of State for Work and Pensions )
People on schemes designed to reintegrate them into the labour market? (C-344/87 Bettray v Staatssecretaris van Justitie)

27. 3. Get into Self-Employment
Self-employed Union citizens (incl. Croatians) are eligible for benefits that a similarly situated Belgium national would get.
There is case law suggesting that self-employed people with a very low level of activity are still entitled to benefits
(the same ‘genuine and effective’ test applies).

28. 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 but are ‘temporarily unable to work due to illness or accident’.
Sign on as a jobseeker, after having been made involuntarily unemployed.
Undertake vocational training (must be related to previous employment unless made involuntarily unemployed).

29. 5. Show Permanent Residence
Worth pursuing for any Union citizen who resided legally in the host Member State for five years (Article 16); or
Who has become permanently incapacitated/ has reached the age laid down by the law of that Member State for entitlement to an old age pension or worker takes early retirement
(Article 17)

30. 6. Show You are a ‘Family Member’
Family members include spouses, civil partners, children under 21, older children 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’.

31. 7. ‘Primary Carer of the Child-in-Education of a Worker’
This rule comes from a European Regulation designed to strengthen the rights of Union Citizens exercising the right to free movement of workers (Article 10 Regulation 492/11 (formerly Article 12 Regulation 1612/68). It is commonly referred to as the rule from Ibrahim and Teixeira.
The Union Citizen parent must have been a worker. Self-employed work doesn’t count (joined case C-147/11 Czop and C-148/11 Punakova).
It may also work where the primary carer was the worker.
A Union Citizen has worked in Belgium…
…,and has a child who was here at some point while the worker was here, and that child is now in education…
…so the child can stay in the UK to finish her/his education and her/his primary carer can stay and get benefits.

32. Chen Parents
In C-200/02 Zhu and Chen the Court of Justice recognised a derived right of residence for the primary carer(s) of a Union Citizen child exercising a right to reside as a self-sufficient person under Article 7(1)(b). The right of the primary carer(s) was necessary to the child’s enjoyment of its Article 7(1)(b) right. It didn’t matter that the child’s self-sufficiency was derived from her parents.
See O.A & anor v. The Minister Justice, Equality & Defence [2014] IEHC 384 for a helpful study - in particular at paras. [81] to [82].

33. Zambrano Parents
In C-34/09 Zambrano, the Court of Justice recognised that EU law can be invoked even without movement between MS. CJ recognised that where Belgian national child living in Belgium would otherwise be forced to leave the territory of the European Union & would be substantially deprived of the benefit of his rights as a Union Citizen (Article 20 TFEU), his primary carer(s) had a derived right to live and work in Belgium.
BUT only applies in situations where it can be assumed that the child would be forced to leave the territory of the EU/substantially deprived of substance of rights as a Union Citizen (C-256/11 Dereci; C-434/09 McCarthy)

34. Drill-down issues

35. Drill down 1 - Pregnancy
Do women who leave work due to pregnancy remain workers or retain their ‘worker’ status ?
YES!
This issue has recently been determined by the Court of Justice of the European Union in the case of Jessie Saint Prix v Secretary of State for Work and Pensions

36. Pregnancy (2) In essence, the CJEU found 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. Further, in order to determine whether the period that has elapsed between childbirth and starting work again might be regarded as reasonable, national courts should take account of all the specific circumstances of the case and any national rules on the duration of maternity leave;
Neither Article 7 of EC Directive 2004/38, or the other provisions of the Directive, can systematically deprive EU citizens of the status of ‘worker’, within the broad meaning of Article 45 Treaty on the Functioning of the European Union (TFEU);
The broad definition of ‘worker’ under Article 45 TFEU, and the rights deriving from such status, do not necessarily depend on the actual or continuing existence of an employment relationship.

37. Drill down 2 – benefits for self-sufficient Union Citizens (1)
To be self-sufficient for the purposes of Article 7(1)(b) Directive 2004/38, Union citizens need sufficient resources not to become an unreasonable burden on the social assistance system of their host Member State.
Many Member States (including the UK, Austria and Ireland) have operated a policy or implemented legislation according to which claiming a social assistance benefit automatically makes Union Citizens/their family members an unreasonable burden on the social assistance system of the host Member State.
The Court in C-140/12 Pensionsversicherungsanstalt v Peter Brey said that this approach is unlawful…

38. Drill down 2 – benefits for self-sufficient Union Citizens (2)
The Court in Brey said:
The fact that an economically inactive migrant may be entitled to a means-tested benefit could be an indication that s/he does not have sufficient resources to avoid becoming such an unreasonable burden (paragraph [63]).
BUT: “the competent national authorities cannot draw such conclusions [eg that the claimant does not have sufficient resources] without first carrying out an overall assessment of the specific burden which granting that benefit would place on the national social assistance system as a whole, by reference to the personal circumstances characterising the individual situation of the person concerned” (para 64)
AND: “By making the right of residence for a period of longer than three months conditional upon the person concerned not becoming an ‘unreasonable’ burden on the social assistance ‘system’ of the host Member State, Article 7(1)(b) of Directive 2004/38, interpreted in the light of recital 10 to that directive, means that the competent national authorities have the power to assess, taking into account a range of factors in the light of the principle of proportionality, whether the grant of a social security benefit could place a burden on that Member State’s social assistance system as a whole. Directive 2004/38 thus recognises a certain degree of financial solidarity between nationals of a host Member State and nationals of other Member States, particularly if the difficulties which a beneficiary of the right of residence encounters are temporary”…

39. Drill down 2 – benefits for self-sufficient Union Citizens (3)
However, the Court in C‑333/13 Dano (11 November 2014) said:
Mrs. Dano, a Romanian citizen who applied for jobseekers benefits in Germany having never worked - or looked for work - there, could not invoke equal treatment, since she did not fall within Directive 2004/38.
“A Member State must therefore have the possibility, pursuant to Article 7 of Directive 2004/38, of refusing to grant social benefits to economically inactive Union citizens who exercise their right of freedom of movement solely in order to obtain another Member State’s social assistance although they do not have sufficient resources to claim a right of residence”: para. 78.
“Therefore, the financial situation of each person concerned should be examined specifically, without taking account of the social benefits claimed, in order to determine whether he meets the condition of having sufficient resources to qualify for a right of residence under Article 7(1)(b) of Directive 2004/38”: para. 80.
The EU Charter of Fundamental Rights was not applicable, since the rules on access to special social security benefits fall outside the scope of the relevant regulation.

40. Contact AysheaA@migrants.org.uk or mario@migrants.org.uk
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Twitter.com/MigrantsMRC