1. Workshop 5: Free Movement and Homelessness - The Policy and Legal Level An NGO Perspective from the UK Barcelona 16 November 2012 1

2. Mission: To promote awareness of European law rights and assist marginalised individuals and those in vulnerable circumstances to assert those rights. Activities: Take cases to the European Court of Human Rights (including cases on behalf of non-EU trafficking victims facing expulsion). Provide free legal advice to individuals and their advisers on their rights under EU law (mostly EU law on the free movement of persons). 2

3. Objectives of This Intervention Familiarise you with the legal framework governing the rights of EU migrants to access social assistance benefits and social housing from an NGO perspective. Familiarise you, by way of example, with the legal framework in the United Kingdom and the case law. Enable a discussion of how we use EU and national law to improve the situation of EU migrants facing homelessness 3

4. What I Will Cover 1.The EU and UK law frameworks governing EU migrants’ access to social assistance and social housing. 2.The situation on the ground in the UK: examples from established case law and the AIRE Centre’s advice service. 3.Challenges to the current situation: training and complaints to the European Commission. 4

5. The EU Law Framework 5 Equal treatment for those exercising residence rights or permanently resident Prohibition on expulsion based merely on recourse to social assistance Directive 2004/38 Equal treatment for workers and their families in relation to social advantages Right to reside for children in education and their primary carers and access to social advantages Regulation 492/2011 (formerly 1612/68) Coordination of social security benefits Provisions on ‘special non-contributory benefits’ Regulation 883/04 Treaty on the Functioning of the EU: Arts 18, 20 and 21 (free movement and nationality discrimination). Charter of Fundamental Rights: Arts 3(1), 7, 21(2), 24, 36, 45.

6. The UK Legal Framework - Welfare Major social assistance benefits: Housing Benefit Council Tax Benefit State Pension Credit income-related Employment and Support Allowance income-based Jobseeker’s Allowance Income Support 6

7. The Habitual Residence Test ‘Actual’ habitual residence Right to reside Not a person from abroad 7

8. Automatically Passing the Test ‘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. 8

9. Reality of the Actual Habitual Residence Test If you are a worker, self-employed or are permanently resident, or are the family member of another EU migrant in one of those categories, you will get benefits. If you are a jobseeker, you will get income-based Jobseeker’s Allowance, Housing Benefit and Council Tax Benefit but no other benefits. Otherwise, you will be told that you do not have a right to reside for benefits purposes and you will be refused. 9

10. UK Legal Framework: Eligibility for Housing Assistance If you are an EU migrant and you are not exercising residence rights under EU law, you are considered a ‘person subject to immigration control’ and are ineligible for housing assistance If you are any person ‘not subject to immigration control’, you must pass a habitual residence test similar to the one for benefits. Those who are merely jobseekers do not pass the test. 10

11. Social Services Support Local authorities have a range of powers and obligations to help people who are facing destitution, including payments to parents who are at risk of having their children taken into care and general powers general powers for local authorities to promote general welfare. Parliament prohibited local authorities from providing this kind of support to EU migrants and their family members. Two exceptions are provided where local authorities must provide assistance: – If it would violate the rights under the ‘Community Treaties’. – If it would violate their human rights. 11

12. Accession nationals in the UK EU-8 nationals had to register their work and pay a fee from 1 May 2004 – 1 May 2011. Many thousands did not and so could not retain their worker status. Many now face difficulties showing that they have acquired permanent residence and are therefore entitled to housing and benefits. EU-2 nationals are not allowed to work without authorisation unless they are exempt. This means that many are left homeless because they cannot take up work or get benefits as jobseekers. They can, however, be self-employed. 12

13. Consequences of the UK Rules Homelessness in LondonHuman Trafficking in the UK 13 *Homeless Link † The Guardian EU Member StateNumber of Victims Referred Romania77 Czech Republic68 Slovakia59 All EU287

14. UK Litigation: Lekpo-Bozua v London Borough of Hackney The appellant, Theresa Lepko-Bozua, is a British citizen living in London. She is married but without children of the marriage. Her niece, Océane Behiman, a French citizen, has lived with the appellant in the United Kingdom for about 9 years. Océane was born on 20 th October 1991 and is now 18. She was 16 in August 2008, when the appellant and she became homeless because of domestic violence. The appellant then applied to Hackney for accommodation. In a letter dated 5 th January 2009, Hackney accepted that the appellant was homeless and eligible for assistance. She was not, they wrote, in priority need because, although Océane was a dependent child residing with her, Océane was an ineligible person. What do you think the outcome was? 14

15. Litigation: FV v Bristol City Council Romanian national applied for Housing Benefit claiming he was self-employed. Judge Rowland of the Upper Tribunal found that ‘I know of nothing in the law of the European Union that suggests that selling the Big Issue cannot amount to self-employment’. 15

16. The Right-to-Reside Test’s Impact on Women: Cases from the UK’s Highest Court Zalewska v SSWP (2008) – House of Lords Polish woman, worked in Northern Ireland, registered first job but forgot to tell the Home Office she had switched jobs. Suffered domestic violence and applied for Income Support. Was refused based on not being able to retain worker status. Her appeal was refused (3 votes to 2) based on the application of the EU law principle of proportionality. Saint-Prix v SSWP (2012) – Supreme Court French citizen worked, began a course to be a modern-languages teacher, became pregnant, stopped her course, found a job looking after young children in a nursery and at six months found the demands of the job too much. She searched briefly for a job before applying for Income Support, which was refused because she does not have a right to reside. The Supreme Court has referred questions to the CJEU about the definition of a ‘worker’ and gender discrimination. The case is pending (AIRE intervening). 16

17. Litigation: De Almeida, R (on the application of) v Royal Borough of Kensington and Chelsea Portuguese citizen in the UK from 1990-1994 and then lived in Spain until 2008, when he returned to the UK. He worked on and off for about a year and then stopped working and started living with some friends. In 2010 he became ill and when he went to the doctor he discovered that he was HIV+ and in fact had several opportunistic infections. His doctor has put him on an aggressive anti-retroviral regime but has been unable to stabilise him. He was living in a hostel which was unsuitable, particularly because he needed to keep some of his medicine refrigerated and could not do so. He also needed to be in a much cleaner environment for his health. He applied for homelessness assistance and for social services support and was refused. At the time of the case, he had a six-month prognosis. The High Court found in his favour. 17

18. AIRE Centre Client: Mr B Mr B is from Lithuania. He entered the UK in 2004. He worked in the UK on and off, sometimes engaging in self- employment, sometimes being paid cash-in-hand. He never registered his employment. In November 2010, having fallen severely ill with multi-drug resistant pulmonary tuberculosis, he applied for income-based Employment and Support Allowance. He was refused. The AIRE Centre argued unsuccessfully in the First-tier Tribunal that he should receive the benefit based on being a permanent resident or based on the fact that it is a special non-contributory benefit. If he is refused this benefit, there will be no Member State of the EU responsible for paying him special non-contributory benefits. 18

19. AIRE Centre Client: Ms S Ms S, from Latvia, lived and worked in the UK in 2004. She returned to Latvia to look after a sick relative and was then trafficked back to Britain and exploited in prostitution. She escaped and, after recovering with the help of an NGO, claimed income-based Jobseeker’s Allowance to help her find a job. Because this was still during the EU-8 transition period, and she had not completed 10 months of registered work, she was refused. 19

20. AIRE Clients: Expulsion of Homeless EU Migrants M – Czech Republic Identified begging on the street with her partner (also Czech). She (living in the UK over four years) targeted for removal, her partner (living for over 10 years) not. We registered her as a jobseeker. First-tier Tribunal allowed appeal based on jobseeker status, noting that the removal was also probably disproportionate. S – Poland Worked (not registered) for several years. Became homeless following end of relationship; alcohol abuse problems. Identified selling the Big Issue and targeted for expulsion. Unable to sign on as jobseeker before hearing (no National Insurance number). Appeal pending, arguments based on self-employment, self- sufficiency and proportionality. 20

21. Expulsions of Homeless EU Migrants The UK authorities admit that those expelled can re-enter the UK immediately. However, AIRE was unable to get more information about the policies behind the scheme through a Freedom of Information request. 21

22. AIRE’s View on the Problem with the UK System vis-à-vis Directive 2004/38 We say the system should work like this: 22

23. The System Actually Works Like This: 23

24. The AIRE Centre’s Response 1.Litigation (representation and third-party interventions): – Examples above in the Tribunal – Saint Prix (Supreme Court – CJEU) – Patmalniece (discussed in a moment) 2.Training 3.Complaints to the European Commission 24

25. Training: Seven Ways to Get an EEA National Social Assistance Benefits 25

26. 1. Sign on as a Jobseeker EEA national jobseekers who are ‘actually habitually resident’ and who are actively seeking work and have ‘genuine chances of being engaged’ are eligible for: Income-based Jobseeker’s Allowance Housing Benefit Council Tax Benefit However, they cannot get housing or homelessness assistance. Also, this will not work for non-exempt A2 nationals. But check to see if they are exempt! 26

27. Exempt Romanians and Bulgarians A2s can only get benefits this way if they are ‘exempt’. Those who have worked a full twelve months legally (including students who have worked part- time for12 months). Those who are spouses or civil partners of British Citizens or persons ‘settled’ here. Family members of other EEA nationals who are exercising Treaty rights (except other Romanian and Bulgarian workers still subject to worker authorisation). 27

28. 2. Work An EEA worker, even working part-time (as little as ten hours per week), is eligible for all of the benefits that a British Citizen would get. A2 nationals cannot work unless they are exempt or have authorisation. 28

29. What Work Counts? Part-time work is sufficient. We usually say as little as 10 hours a week. There was a case where someone making only £65/week was considered a worker, but this was borderline. The question is whether the work is ‘genuine and effective’, that is, of real economic value to the employer. Women on maternity leave (paid or unpaid) are considered ‘workers’. 29

30. 3. Get into Self-Employment Self-employed EEA nationals are eligible for benefits. There is case law suggesting that self- employed people with a very low level of activity are still entitled to benefits. A2 nationals can be self-employed without any restrictions. 30

31. 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). 31

32. 5. Show Permanent Residence Worth pursuing for any EEA national who has lived in the UK for five years or who has become permanently incapacitated. 32

33. 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’. 33

34. 7. Show that You are the ‘Primary Carer of the Child-in-Education of a Worker’ An EEA national has worked in the UK… and has a child who is 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. This rule is not contained anywhere in domestic law. It comes from the Court of Justice of the EU’s interpretation of the Treaties. When dealing with the benefits authorities, call it 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. 34

35. Complaint to the European Commission 1: Special Non-Contributory Benefits In the UK, three benefits are considered ‘special non- contributory benefits’: income-related Employment and Support Allowance, income-based Jobseeker’s Allowance and State Pension Credit. (Income Support was also an SNCB). They are therefore covered by Reg 883/04. Article 4 of the Regulation provides for ‘equality of treatment’. Article 70(4) provides that SNCBs will be paid in the Member State of ‘residence’. (See the Swaddling judgment about what constitutes residence – there does not appear to be a right-to-reside test). 35

36. Complaint to the European Commission 1: Special Non-Contributory Benefits In the Patmalniece case (AIRE intervening), the UK Supreme Court found that the right-to-reside test constituted indirect discrimination and was justified because of the need to protect public finances. Following the judgment, in late September 2011, the Commission issued a reasoned opinion under Art 258 TFEU. 36

37. Complaint to the European Commission 2: Comprehensive Sickness Insurance Many EU migrants are refused benefits because, even though they have resided five years in the UK, they are not recognised as having acquired permanent residence. In particular, they are not recognised has having has ‘comprehensive sickness insurance’ as Art 7(1)(c) of Dir 2004/38 allows the UK to require. The AIRE Centre complained that all EU citizens in the UK are entitled to free NHS care (granted to all who are ‘ordinarily resident’ in the UK). The Commission issued a reasoned opinion about this matter in April 2012. 37

38. The Future in the UK Welfare Reform: ‘Universal Credit’ will replace most UK social assistance benefits and the UK will claim that there are no more SNCBs, ending the infringement A2s will have the right to work from 1 January 2014 UK will continue attempting to expel homeless EU migrants Government policy to reduce net migration into the UK from around 200,000 to below 100,000 will result in increased pressure on EU migrants to leave, exercised through limited access to social assistance and social housing 38

39. Future Work for EU Migrants Facing Homelessness Need for more NGO coordination at European level to deal with complaints AIRE Centre project funded by EPIM: work in Belgium, Ireland and the UK. Need for a specific response to the particular vulnerability of Roma and how they interact with the EU’s free movement regime. Problem of the exhaustion of the CJEU case law: are we still headed toward a sitaution where Union citizenship is the ‘fundamental status’ of nationals of the Member States (Grzelczyk)? 39

40. Working With AIRE The AIRE Centre is interested in developing further, future European projects on working with EU migrants facing destitution. Contact: aweiss@airecentre.org.aweiss@airecentre.org Thank you for your attention. 40