Welfare Benefits for EEA Nationals By: Syed Habibullah

Who is an EEA National? All EU nationals Plus nationals of Iceland, Liechtenstein and Norway. From 01/06/02, Swiss nationals generally treated in same way as EEA nationals. Note: Croatia joined EU on 1 July Additional restrictions on them until 30 June 2020.

EEA nationals—hurdles to benefit Every benefit claimant has to fulfil some presence and residence requirements as well as Habitual Residence Test. Of these, Habitual Residence Test (HRT) is the most problematic for EEA nationals.

Habitual Residence Test (HRT)—consists of: Right to Reside (RtR), and Habitual Residence in fact. Of the two, the practical difficulty is usually with RtR. For means tested benefits, an EEA national either has to have RtR or be exempt from it.

Who has the Right to Reside? o EEA nationals during their first 3 months of stay ( further restrictions in 2014, see later ) o A qualified person —5 categories. o Family members of a QP o Those with a ‘derivative right to reside’ o Those with a permanent right to reside

Who is a qualified person? Worker ( Or if retained worker status ) Self-employed Self-sufficient ( Or if retained this status ) Self-sufficient student Jobseeker ( Further restrictions from 2014 )

Who is a worker? Since 01/03/2014, two tier test: Tier-1: have earned MET p/week for 3 continuous months = Worker Tier-2: If fails T-1 test, a more thorough check of your circumstances. Worker if your activity is or has been genuine & effective and not marginal & ancillary

Self-employed Similar T-1 &2 tests but allows for periods of relative inactivity or low income Can retain Worker/ self-employed Status if: Temporarily unable to work—illness/ accident. Invol unemployed & regd as jobskeer.

Self-sufficient people: Income is above applicable amounts for MTBs. Can cover accommodation &living costs (with help from friends/ family) Comprehensive sickness insurance No longer S-sufficient  still may pass RtR test if claim is not unreasonable burden on social assistance system

Jobseeker Since 1/1/14, for RtR as a JS, must satisfy, both A & B: A Either: o Have entered the UK to seek employment; OR o present in UK seeking employment, immed after enjoying a RtR as a worker, S-E, S-S or student; & B Evidence that seeking employment & genuine chance of being engaged.

Further Restrictions for JSs From 01/01/14: For IBJSA, must have lived in CTA for min 3 months (unless exempt from HRT). From 01/04/14 EEA nationals relying solely on being a JS for their RtR cannot claim HB

Length of RtR as a JS From 10/11/14 A JS can only have RtR for upto 3 months. After that must show compelling evidence of being engaged. But, if you have retained status as a worker, can stay on JSA for: Upto 6 months if have worked less than 1 yr; For longer if have worked for more than a yr.

DWP guidance after Elmi (CA) Where an EU national makes a claim for IS, ESA(IR)/ SPC & Has worked in UK but currently unemployed & Has declared on claim form or otherwise in course of making claim (including on habitual residence form) that looking for work, but has not claimed JSA/ NI credits or has but such claim failed Result: claimant is not a PFA/ person not in GB.

Jessey Saint Prix on IS CJEU: Pregnant, gives up work, but wishes to return to find a job within a reasonable period after birth, retains RtR. UK Govt: IS ( if not entitled to SMP/MA ) for 26 wks starting no earlier than 11 wks b4 expected due date and finishing no later than 15 wks after birth.

Family Members of EEA nationals Their Spouse/Civil Partner Their or their spouse/CP’s Child, grandchild or great-grandchild, under 21 yeas of age; Above people, whatever the age, if dependant on the EEA national; Their dependent parent, grandparent or great- grandparent

Dependence: Case law  principles Irrelevant whether alternative sources of support available Support must be ‘material’ though not necessarily financial, & must contribute towards ur basic necessities. U remain a spouse or CP even if separated.

Extended Family members Partner, in a durable relationship Dep relative who would satisfy the immigration rules for ILR as a dep relative if the EEA national was present and settled in UK; But EFM no RtR unless issued with an EEA family permit, a registration certif or a residence card.