NAWRA Workshop Right to Reside: Challenges and Rights The AIRE Centre Saadiya Chaudary and Adam Weiss 9 March 2012 London 1

Mission: promote awareness of European law rights and assist marginalised individuals and those in vulnerable circumstances to assert those rights. Activities: Providing free legal advice and services, usually ‘second-tier’, on European law (mostly EU law on the free movement of persons). Representing applicants in cases before the European Court of Human Rights. Third-party interventions. Reports, trainings, special projects. 2

Objective of this Session Improve participants' understanding of the right‐to‐reside test, with a focus on recent case law, action the European Commission has taken to challenge the test and the rights of particularly vulnerable migrants under the test, including survivors of domestic violence and victims of human trafficking. Structure: 1.Two-minute overview of the test 2.Five minute discussion of the Commission infringement proceedings. 3.Five-minute discussion of recent/current case law. 4.Case studies. 3

The Test ‘Actual’ habitual residence Right to reside Not a person from abroad In some cases, your right to reside ‘passports you’ through and you don’t need to show actual habitual residence. Benefits Affected: Housing Benefit Council Tax Benefit Income-based Jobseeker’s Allowance Income-related Employment and Support Allowance State Pension Credit Income Support The right-to-reside test also applies to Child Benefit and Child Tax Credit. 4

Looking Through the Wrong End of the Telescope As a matter of EU law, EU citizens are supposed to be treated the same way as British citizens unless there is an exception allowing them to be treated differently (Article 18 TFEU: ‘Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited’). In UK law and practice, EU nationals are viewed as foreigners and you have to justify equal treatment. 5

Infringement Proceedings Article 258 TFEU If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union. 6

The Infringement Proceedings: June 2009: AIRE and ILPA complaint about certain aspects of the right-to-reside test February 2010, the Commission makes two findings: Certain aspects of the worker registration scheme for A8 nationals are unlawful. Specifically, registered A8 workers should be able to retain their worker status (e.g. if they are involuntarily unemployed, or if they are ill) even if they have not yet completed twelve months. The EC sends a letter of formal notice to the UK about it (July 2010). The EC sends a ‘reasoned opinion’ to the UK (November 2010). The EC withdraws the infringement because the right-to-reside test no longer applies (May 2011). AIRE protests, EC does maintains its decision. The right to reside test is unlawful discrimination under Reg 1408/71 (now Reg 883/04) in relation to State Pension Credit, income-based JSA, income- related ESA and Income Support. The EC sends a letter of formal notice to the UK about it (July 2010). THE SUPREME COURT OF THE UK DECIDES THE PATMALNIECE CASE (essentially finding that there is no basis for the infringement. The EC (nonetheless) sends a ‘reasoned opinion’ to the UK (September 2011). Now – the matter is pending. 7

The Commission’s View – excerpt from February 2010 letter 8

Current Case Law Issues Permanent residence and comprehensive sickness insurance: compare Lekpo-Bozua with SW. Permanent residence: Ziolkowski. Worker Registration Scheme – backdating of worker registration certificates. Zambrano – see RR, SW and the UK(IAT) determination in Sanade. Maternity and parents with young children: JS pending in the Supreme Court (to be heard in March 2013). Self-employment: see Tilianu, AL and RJ. Teixeira and Ibrahim – does it apply to the self-employed? See Cases C-147&148/11 Czop & Punakova, pending in the CJEU. EEA spouses of British citizens: see SW. 9

Questions? 10

Case Study 1 L is from Latvia. She came to the UK in 2005, worked, registered, for six months, and then went back to Latvia. She was trafficked to the UK four months later and sexually exploited for 18 months. She escaped the traffickers and was later recognised as a victim of trafficking. In 2007 she worked for fifteen months, but only registered her work after a year. She left her job because of sexual harassment and claimed income-based JSA. She was refused. She was subsequently granted a residence permit as a victim of human trafficking and so received Income Support for a year. Her appeal is now pending on the JSA claim. What arguments can you make for her? 11

Case Study 2 F is a French citizen. She is married to a British Citizen. F has never worked in the UK; her husband has always worked. They got married in 2004 and have been living here ever since. They have a child born in F’s husband went to prison for three months last year and F applied for Income Support during that period. She was refused. What will you argue for her? Would it make a difference if you learned that F herself had spent four months in prison back in 2007? 12

Case Study 3 B is a Bulgarian national. She and her husband, also Bulgarian, have been living in the UK since They originally came here is asylum seekers and were given temporary admission with the right to work – they did work up until 15 January 2007, when they were told they were not allowed to work any more. In 2008 B started her own cleaning business. It was running successfully but she lost her last contract in September Her husband has not had any work, but occasionally helps her with the business. What benefits can they apply for? What arguments would you make if they were refused? 13

Case Study 4 S is a Senegalese national, married to a Belgian national. They have a Belgian national child and have been living together in the UK since January Twelve months ago, S’s husband was sent to jail for threatening her with a knife. S applied for Income Support and was refused. S has now been informed her husband is likely to be let out soon but may be deported. Her Income Support appeal is pending and she wants to get some benefits now, and also wants help with the appeal. What arguments will you make in the appeal? What advice will you give her? 14

Contact Details The AIRE Centre can provide second-tier advice to other advisers on EU law issues. We provide advice in writing and aim to respond within two weeks. In some situations, we can take on cases ourselves. 15