1. Family members Extended Family Members Housing Systems December 2015
EEA Right to Reside -
Family members Extended Family Members Housing Systems December 2015
2.00 NB all on hbnotes site under Claims &Payments >People from Abroad
What are the main problem areas for you?

4. Considering:
Why we might need to discover if a claimant counts as an EEA national’s family member
Who is a “family member”
Who is an “extended family member”
What happens if the EEA national dies or leaves the UK or the relationship ends
What if don’t fit the criteria? – Do these apply: - Permanent residence? - Derivative right to reside? - Special maternity rules
Let them guess first! 4

5. Which are the EEA states?
Austria
Belgium
Bulgaria
Croatia
Cyprus
Czech republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Netherlands
Poland
Portugal
Romania
Slovenia
Slovakia
Spain
Sweden
Iceland
Liechtenstein
Norway
Switzerland
(United Kingdom)
ASK FIRST THEN GIVE OUT
EEA nationals and their family members are given rights of free movement directly by instruments (such as the Treaty of Rome) at a European level.
Ie do not need to apply for a visa
It is not within the discretion of the Home Secretary to amend these.  
These rights become operative when an EEA national moves to another member state for work or self employment or to seek work
EEA nationals have freedom of movement
But do not have freedom to claim benefits
Under EU law, any benefit that is designated to facilitate access to the labour market must be available to everyone across the EU - JSA
But the government can place restrictions as long as falls within EU law
And have done ie ‘residence’, time limits
To claim benefits an EEA national must be not just present in the CTA/UK but ‘habitually resident’ in it – cover that later

6. EEA States – acceded later
Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia
Joined May 1st 2004, Restrictions until April 30th 2011
A2 States
Bulgaria, Romania
Joined Jan 1st 2007, Restrictions applied until Dec 2013
Croatia
Joined July 2013
Restrictions apply until at least June 2018, probably 2020
The terms of the accession treaties under which A8 and later A2 states joined the EU gave existing members like UK option to restrict access to job mkt for up to 7 yrs. Most now completed this except for Croatia – more later.
Restrictions applied –registered work (A8s); authorised work (A2s and Croatia).
To get HB & other benefits had to either be working – 1st 12 mths; or have DONE 12 mths work.
A2 and A8 not restricted NOW but if need to check past work history, eg permanent residence / family members, have to have done that work to count as “working” in that time.
However now Long Term job seekers – see Permanent Residence being aquired???????
More details when look at Croatia.
GUESS % of EEA Nationals 6

7. EEA Nationals & Benefits
Which benefits can be claimed without a right to reside?
Attendance Allowance/PIP/DLA
Working tax credit
Industrial injuries
Contributory JSA and ESA
State Pension
SSP and SMP
Bereavement Benefits
Maternity Allowance
Emergency Assistance from Social Services (if destitute)
NB doesn’t necessarily mean will count as self-sufficient but might help.
Other sources – partner income, savings, p/t work….
Social Services – for people who have been left with no money at all – looking at later

8. What’s the current problem for EEA national benefit claimants?
“Genuine Prospect of Work” test
Testing all EEA jobseekers (whether jobseeker status, or those whose retained worker status is ending)
Plus tightened benefit rules for EEA nationals since 2014
If they can’t show Right to Reside (R2R) -
Lose entitlement to Housing Benefit , JSA, or both.
2.10 max Handout LETTER –EMPHASISE THIS MEANS SOME PEOPLE WILL BE TOLD NO RIGHT TO RESIDE FOR BENEFIT PURPOSES – WHEN THEY DO!
If they ask what welfare system is like in other EEAs- do they have same rules? Don’t know. (Jill’s seminar- looser rules in eg Germany?) 8

9. ”Genuine Prospect of Work”
“Compelling evidence that they are continuing to seek employment & have a genuine chance of being engaged”
Very limited extension to R2R – one or two months, so….
Does the claimant have an alternative R2R?
Note controversial – ginger hair analogy – Martin Williams CPAG – judicial review- cases. Might be unlawful. 9

10. EEA Nationals - Right to Reside if:
A worker / A self-employed person or
Have retained worker / self employed status through being temporarily unable to work due to ill health or
Seeking work* with a ‘retained worker status’ (for a limited period of time) or
A self-sufficient student or
A self-sufficient person or
Have a permanent right of residence or
Some family members of above or
Have a ‘derivative right to reside’
*Special rules for jobseekers who do not have a ‘retained worker status’
EEA nationals can only claim some Benefits if pass ‘Habitual Residence’ test
In May 2004 this became a two part test:
Right to reside
Actual habitual residence
But what does this mean? looking at all these in turn (getting self sufficient out of the way first as might not apply to many of their tenant- last resort if all else fails) 10

11. EEA Nationals- family members
Claimant can “piggy back” on an EEA family member’s status
Whether they themselves are an EEA national or not
Family Member – I (EEA) reg 7 or
Extended Family Member – I (EEA) reg 8
2.25 latest 11

12. Family member =
Spouse/civil partner until divorced/ partnership dissolved
Direct descendants of EEA national/partner, aged under 21 (child, grandchild, great grandchild)
Direct descendants of EEA national/partner, (child, grandchild, great grandchild) if “dependent*” on EEA national
Dependent relatives in direct ascending line of EEA national/partner (parent, grandparent, great grandparent)
NB can’t double piggy back
Can be material support but not necessarily financial – actually receive it and doesn’t matter if alternatives available – must contribute to basic necessities
Dependant relatives in ascending line does not apply to Croatians 12

13. “Dependent”= Receive support from EEA national Which is “Material”
Which contributes to the basic necessities of life
Irrelevant if alternative support available
Irrelevant if only became dependent on them once in the UK (unlike if extended family member)
Can’t refuse on basis that getting the benefit means would no longer be dependent on the EEA national
Caselaw:
CIS/2100/2007 (first three points) Flora May Reyes v Migrationsverket C-423/12/2014 and UKUT 437 (IAC) – re alternative support available
Pedro v SSWP (2009) EWCA Civ 1358re ok if only dependent once in UK Centre Publique d’Aide Social de Curcelles v Lebon 13

14. Extended Family member =
Issued with an EEA family permit or registration certificate or residence card AND
In a durable relationship* with the EEA national or
A relative who has serious health problems that require the care of the EEA national/ their spouse/civil partner or
A relative who is dependent** on the EEA national/ their spouse/civil partner or
A relative who would satisfy the Immigration rules for Indefinite Leave to Remain*** as the EEA national’s dependent if the EEA national were present and settled in the UK
if they can demonstrate that, as a result of age, illness or disability, they require a level of long-term personal care that can only be provided in the UK by their relative here and without recourse to public funds.
Explained next slides 14

15. EEA Nationals – family member-
Residence card – useful for “family members”; essential for “extended family members”
£65- lasts 5 years
EEA family permit is free – valid for 6 months 15

16. EEA family permit
EEA family permit is free – valid for 6 months 16

17. Durable relationship =
Duly attested means confirmed in writing.
Durable relationship generally means must have lasted two years or this can be shortened if there are children.
Discretionary 17

18. “Dependent Extended Family Member ”=
As “dependent family member” BUT
Have to have been dependent on the EEA national in a country other than the UK and
Accompanying/joining them in the UK and
Continue to be dependent on them as part of their household 18

19. “Dependent Extended Family Member who would satisfy ILR ”=
“…can demonstrate that, as a result of age, illness or disability, they require a level of long-term personal care that can only be provided in the UK by their relative here and without recourse to public funds.”
Appendix FM Of The Immigration Rules Section FM 6.0
 The applicant must, as a result of age, illness or disability, require long-term personal care: that is help performing everyday tasks, e.g. washing, dressing and cooking;
 The applicant must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living because it is not available and there is no person in that country who can reasonably provide it, or because it is not affordable.
 The Entry Clearance Officer (ECO) must be satisfied that the applicant will be adequately maintained, accommodated and cared for in the UK by the sponsor without recourse to public funds. If the sponsor is a British citizen or settled in the UK, they must sign a 5-year undertaking to that effect, at the entry clearance stage. 19

20. Family member of British Citizen?
As British citizen, not an EEA national, EEA rules don’t apply
Unless retains R2R as worker in another EEA state
And transferred “centre of life” to that state
But this might be arguable under EEA regulations and is a complex area of law – seek advice! 20

21. EEA Nationals Family members might lose “piggy backed status” if:
EEA leaves the country
EEA dies or divorces (or separates, if a partner)
EEA ceases to have their own right to reside
Problem of proof…..
Best to get EEA family permit or permanent residence card – costs £65 currently (family permit may be more) 21

22. Retaining family member rights
Separating couples
Can claim HB in their own right if:
Family member of EEA national who is one of the above and
is married but not yet divorced or
civil partnership not yet dissolved
Otherwise… 22

23. Retaining family member rights
Separating couples
ONLY for non EEA nationals, who would have worker status/ self sufficient if were an EEA national and
“continued residence in UK is warranted by particularly difficult circumstances eg domestic violence” or
a divorced/annulled couple (including civil partners) had been married/ in a civil partnership at least 3 years and had been in the UK for at least a year,  or
 the ex-spouse / civil partner of EEA national has custody of / access to child of relationship, where a court order has stipulated access must be in UK.
domestic violence (could be to a child or other family member as well as to themselves)
In certain cases divorced /dissolved through DV- but only if victim is a NON EEA partner of an EEA 23

24. Fleeing violence– DDV concession- nonEEA
Can claim public funds for 3 months while applying for indefinite leave to remain on DV grounds
Only if:
Spouse/civil partner/ unmarried partner of a British citizen or someone with settled status and
Relationship broke down due to domestic violence and
Destitute and in need of benefits
Form from Gov.UK
Fleeing violence– DDV concession- nonEEA
Does not appear to apply to EEAs but one was won at FTT 24

25. Retaining family member rights
Death
Were a family member of the EEA national when they died AND either
Direct descendant of EEA national or their spouse/ partner & at school/college in UK when died, & still are, OR
Parent with custody of a child who satisfies above OR
Worker status in UK for 1 year + immediately before EEA died OT
If not an EEA national themselves, would have had worker status if they had been,  or family member of a non-EEA national who would have had worker status 25

26. EEA Nationals Exercise: Happy Families
Which of these people are family members who can “piggy back” and which are not?
10.45 max Hand out Happy Family Cards – use tick and cross from earlier 26

27. EEA Nationals- Permanent right of residence
Had ‘right to reside’ in UK for 5 years or more as
Worker / self employed
Retained worker / self employed status
Self-sufficient person
A self-sufficient student
Family member of one of the above
Jobseeker* – if entitled to IB JSA
Can acquire permanent residence early:
Permanent incapacity in some situations
Retired in some situations
EEA Nationals- Permanent right of residence
May need to look back at the history of any EEA National
A8 countries – April 2011/2009*
A2 countries – December 2013
Time spend in registered / authorise work and once completed 12 months registered / authorised work will count
Up to 30 days ‘break’ in any 12 month period will be fine
Philippe 27

28. EEA Nationals- Permanent right of residence – family members
Can piggy back on permanent residence status
Lose status if person they’re piggy backing on
Dies or Leaves UK or Divorced/dissolved
But then can apply for permanent residence status in own right in limited circumstances-
Lived as family member of someone with PR other R2R (except derivative) for 5 years
Family member of EEA who died – some circumstances… 28

29. EEA Nationals- Permanent right of residence – family members
A family member of a worker or self employed person who died while still in employment or self-employment, will acquire permanent residence status if:
They had lived in with the EEA national in the UK for two years or
The EEA national died as a result of an industrial disease/accident .  29

30. EEA Nationals
Can apply for permanent right of residence card – not essential but very useful
NB - permanent residence status lost if abroad for 2 years + …… but could still have card! 30

31. Derivative R2R Also may have “Derivative Rights”
Gain the ‘right to reside’
BUT
Must pass ‘habitual residence’
Derivative rights don’t count towards 5 years for permanent residence
Can’t piggy back on someone whose right to reside is “derivative”
\show Miss F Letter – go through this 31

32. Derivative rights from child in education
Treaty rights of child under 18 of EEA worker to be educated –
The parent & “primary carer” of this child derives a Right to Reside if:
either parent was employed in the UK as an EEA worker
‘for some common period’ when their child also in UK (not necessarily same home)
If “actually habitually resident’ will be able to claim HB
This is where Benefits law depends on EU law Has to be normal school education, under 18. new- caselaw (Baumbast, Ibrahim,. Texeira, plus new one says A8 ok if in registered work while child in the UK (doesn’t need to have been a worker while in education)
Guidance that went to LA’s HB dept got this wrong and said that the common period had to be same time as child in education (when actually this isn’t the case) so do look at this if someone turned down for this reason.
Danika- daughter in education. yes so long as HRT2 32

33. Maternity & Pregnancy
If still has employment contract /in business, then still has “worker status”
If has to finish employed (not self employed)work
may have ‘retained worker status’ if jobseeking,
& for a period while not looking for work so long as return to work/jobseeking after – DMG Memo 25/14 – Jessy Saint Prix case – 26 wks ; SSWP v SFF & Ors UKUT 502(AAC) - up to 52 weeks, possibly longer if child disabled etc
Nb- can retain worker status if had to leave work due to late stages of labour / aftermath of giving birth, and intend to return to work.
Caselaw established this Jesse Saint Prix Teacher from France Memo DMG 25/14
Retains this for 26 weeks - 11 weeks before due to 15 weeks after. Not overpaid if actually don’t return. Can claim IS instead of JSA.
(Alina would have been OK if been employed – or if kept self employment business going) 33

34. EEA “self sufficient”
Self sufficient: If have sufficient resources for themselves and their family not to become a burden on the social security system - with sickness insurance
Self sufficient student: If have adequate financial resources and comprehensive sickness insurance - and meet HB rules on which students can claim
Getting this out of the way first Discuss what this means in terms of benefits- having more than basic “breadline” level (IS, IB JSA, IR ESA, PC)
Eg possibly if someone has some earnings or pension or another benefit eg a disability benefit – DLA, PIP, AA?
possible 34

35. EEA “worker status”- employed
In employment
(providing services under the direction of another)
Work must be for remuneration, and
‘genuine and effective’:
Either over £155/week last 3 mths, OR
DWP decision based on facts
Caselaw - 10 hrs was OK.
Stricter definition of work for Croatians- authorised work
Flipchart
Paid – not voluntary
Caselaw – Defined Prostitutes as employed
What would help prove work was G&E (not marginal and ancillary) – Contract of E, T&C’s same as others – Cleaner in Germany, Union, Long Period of time, Regular.
Two weeks Wimbledon stewarding for £400pw found to be G&E (in amongst other low hours contracts)
Johan – yes. 35

36. Croatian workers To have ‘worker status’ must be either
in work and have completed 12 months ‘authorised work’ or
Currently in ‘authorised work’
(Unless exempt- highly qualified work eg doctors)
Registered with Home Office- purple certificate
If break of 30 days or more, restart 12 mths
If change employer, must re-register
Can’t claim benefits whilst out of work until completed 12 months’ continuous authorised work.
NOTE: Same rules applied to A8s and A2s when they were restricted
Border agency registration costs £65 and must have advance clearance from the Home Office
Don’t need to apply if partner of brit cit/settled ; or of EEA worker
Assume need to pay if need to be re-authorised
Nolly
History of A2 and A8’s are important e.g. for later 36

37. EEA worker - self-employed
In self employment
Work must be for remuneration, and
‘genuine and effective’:
Either over £155/week last 3 mths, or
DWP decision based on facts
Caselaw – low hours, if building up business.
Croatian self-employed can claim HB – not restricted . Need yellow authorisation certificate
Ie same ‘genuine and effective’ rules as employed
Working 12 hours a week for £15 per hour building up their business over time was G&E
But NOT – group of women who were found to be just cleaning for each other (claimed cleaning business)
Musical gigs if not trying to gain lots of gigs/other work in music business
Home Knitters
Big issue seller- caselaw said g&E 37

38. EEA “worker” & “self-employed”
What happens when an EEA worker is off work sick?
If still has employment contract / in business
still has “worker status”
Can claim HB
If has to finish work
Can have ‘retained worker status’ if
Illness is ‘temporary’
Only applies to Croatian nationals who have completed 12 mths’ authorised work
Need to try to keep the business going to keep it live
Claudette OK if her work had been genuine and effective
Temporary – no definition 4 years caselaw 38

39. EEA national finishing work
What happens when an employed worker loses their job?
May have ‘retained worker status’
But only for limited period of time
(Does not apply to self-employed ended business)
Can claim HB (& JSA) during this period
If do not qualify as retained worker status, they will be a ‘jobseeker’
Looking at later.
Only applies to Croatian nationals who
have completed 12 months authorised work
Limited period of time – look at in a minute 39

40. EEA “retained worker status”
Been in employment (not self employment)
‘Involuntarily’ unemployed
Laid off, redundancy, contract ended etc
Work must have
Been ‘genuine and effective’, &
Looked for work immediately, &
Genuine chance of finding work
Can claim HB (& JSA) for 6 months
Only applies to Croatian nationals who have completed 12 mths’ authorised work
Need to explain that ‘involuntarily’ is broader ie still in the job market/would rather be working
Work must have been genuine and effective – can only have retained worker status if had been a worker.
Looked for work immediately – registered as a job seeker (2 week gap might be allowed as that’s what would take on a holiday )
Mohamed and Jana 40

41. EEA “retained worker status”
6 months IB-JSA & HB
Can be extended if worked in UK 1yr+ and
‘compelling evidence’ of a ‘Genuine prospect’ of work (GPoW) ie:
Offer of ‘genuine and effective work’
= Extended by 3 months
Change in circs has improved chances and awaiting outcome of job interviews
= Extended by 2 months
Only applies to Croatian nationals who have completed 12 mths’ authorised work
Change in circumstances – move areas/undertake training etc
Mohammed & Jana
Give out: Workbook – work way through these
THEN ADD QUESTIONS TO THE CHECKLIST 41

42. EEA Nationals - Jobseekers
Some EEA nationals who have been working do not have a ‘retained worker status’
Why?.....
Self employed and business closed
Not finished work that was ‘genuine and effective’
Will be classed as a ‘Jobseeker’ – looking at later
But those who have never worked, or whose retained worker status has ended, may be looking for work- but will not count as a ‘jobseeker’ for benefit purposes.
Time line?
(Can only “retain worker status” if been a “worker”! And have to look for work “immediately” after – what does this mean? Probably very tight but caselaw will tell. Suggestion that within 2 weeks might be OK).
Katarina? 42

43. EEA “worker” / “self-employed”
What happens when an EEA worker is on maternity leave?
If still has employment contract /in business
still has “worker status”
If has to finish employed work
may have ‘retained worker status’ if jobseeking,
& for 26 week period while not looking for work – DMG Memo 25/14
Only applies to Croatian nationals who have completed 12 mths’ authorised work
Nb- can retain worker status if had to leave work due to late stages of labour / aftermath of giving birth, and intend to return to work.
Caselaw established this Jesse Saint Prix Teacher from France Memo DMG 25/14
Retains this for 26 weeks - 11 weeks before due to 15 weeks after. Not overpaid if actually don’t return. Can claim IS instead of JSA.
(Alina would have been OK if been employed – or if kept self employment business going) 43

44. Universal Credit Regs say: must be “IN” Great Britain =
(1) Must be habitually resident
June 2015 – EEA jobseekers* treated as not habitually resident
(* retained workers status OK)
NB Possible further restrictions
AND (2) Must not be a “Person Subject to Immigration Control” ie no restrictions on their leave to remain…
Possible further restrictions:
“Required to leave” if no job after 6 mths’ jobseeking
No Child Benefit for children outside UK
No in work benefits (HB, Tax Credits) for EEA workers for first 4 years
No out of work benefits for jobseekers on arrival in UK (doing this anyway first 3 mths)
No UC for any EEA nationals (look like backtracking on this one- digital pilot areas changes* CHECK)
SOME OF THESE WILL REQUIRE TREATY CHANGES- LONG PROCESS/MIGHT NOT WIN
Reluka & Larna 44

45. Universal Credit Currently Gateway conditions
Must be a British Citizen
Not been out of the UK in last 2 years for more than 4 weeks
Except “Digital Service Areas” where Gateway conditions don’t apply – this will be the first area to have EEA restrictions from June 2015
SM5 2 postcode area of Sutton, South London (Carshalton) from March 14th 2015 extended to areas SM6 7 and SM6 8: from 10th June 2015 to CRO 4 and SM6 9: from 4th November CR0 2 and SE1 5
GATEWAY CONDITIONS!!! 45

46. EEA Nationals & Main Benefits
The rules for claiming a benefit are summarised according to the different tests applied in order to claim each benefit.
Presence Test,
Past Presence Test,
3 month Rule (to CTC, CB, IB-JSA) ,
Residence Test,
Ordinary Residence Test
Habitual Residence Test
The tests application to each benefit are very Complicated – Summarised in a handout.
We are going to focus on the following:-
Habitual Residence Test
HANDOUT SUMMARY

47. EEA Nationals & Main Benefits
Habitual Residence Test applies to :-
Income Support IB-JSA
IR-ESA Universal Credit
Pensions Credit Housing Benefit
Council Tax Support
Child Benefit Child Tax Credit
Some have further residence requirements
Some are subject to a 3 month rule – IB-JSA, CB, CTC
Some are affected by the Co-ordination rules within the EU e.g. rights if the equivalent is already being claimed in another EU state
Further residence requirements
Depending on the Benefit claimed there are different rules for how long need to have been here to claim
For instance for All Disability and carers benefits Attendance allowance, DLA, PIP and carers allowance need to have been here for 104 weeks out of the last 156 (unless very young – e.g. babies and children or terminally ill)

48. Immigration Status Test
‘Person Subject to Immigration Control’?
A ‘PSIC’ is NOT entitled to HB
Test applies to those nationalities who need permission or ‘leave’ to enter UK
A PSIC has either no permission or has limitations attached
Immigration Status Test 48

49. Who doesn’t NEED leave to enter/remain in UK?
Citizens of Common Travel Area & those with ‘right of abode’ in CTA
EEA Nationals (& certain family members)
ECSMA & CESC ratified states if ‘lawfully present’(Turkey and FYR Macedonia)
“Non visa nationals”- only need leave if staying for more than 6 months
BUT NOTE STILL NEED TO PASS OTHER TESTS
So, so far – OK = Charles (British citizen). All EEAs But need to check other tests. (if they ask about Marley & Surinder & Tarik & Woo? – we’ll see next.)
HANDOUT:? Too Early as will then have answers to EEA? 49

50. Immigration Status test
If someone has “Indefinite leave to remain” they can claim HB
BUT if their leave is LIMITED by:
“No recourse to public funds” Or
Sponsorship
Then cannot claim HB
Why?
Immigration Status test
Sponsorship- next slide 50

51. PSIC – “No Recourse to Public Funds”
Even if they have no recourse to public funds if they are a primary carer of a child who is a British Citizen then they would be able to claim :-
Attendance Allowance
DLA
PIP
Carers Allowance
Working Tax Credit