New restrictions for migrants

 

Rebecca Walker, author of the immigration and residence rules section of CPAG’s Welfare Benefits and Tax Credits Handbook, explains the new residence requirements introduced from January 2014.

On 1 January 2014 changes came into force that make it harder for those recently arrived to access income-based jobseeker’s allowance (JSA) and restrict the residence rights of certain groups of European nationals and their family members. Given the frequently inaccurate and misleading claims that have been made about these changes, it is helpful to set out just what has changed.

The restrictions on residence rights were achieved by amending the Immigration (European Economic Area) Regulations 2006 (SI No.1003), hereafter referred to as the EEA Regulations.1 Amended by The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2013 No.3032 (‘the EEA Amending Regulations’) The restrictions to income-based JSA are made by separate amending regulations – see below. It can be helpful to remember that the EEA Regulations implement the main European residence Directive 2004/38 and should incorporate those rights of residence into domestic law. However, while the domestic regulations can provide more generously, if they provide fewer or more restricted rights then claimants can rely directly on the Directive for their residence rights.

Despite the impression given that the new restrictions were rushed through as a result of the ending of restrictions on Bulgarian and Romanian nationals (A2 nationals), none of the new restrictions exclusively affect A2 nationals. However, in addition to new restrictions (covered below), the amendments do ensure that the residence restrictions on Bulgarian and Romanian jobseekers, workers and those retaining worker status continue to have effect during the accession period (1 January 2007 to 31 December 2013). It therefore continues to be necessary to understand how these restrictions operated during the accession period when advising any claimant whose current right to reside relies on her/his own or someone else’s right to reside as an A2 national before 1 January 2014.

The amendments affecting the greatest number of benefit claimants are to the definition of ‘qualified person’.2 Reg 6 EEA Regulations amended by reg 3 the EEA Amending Regulations The EEA Regulations provide that someone has a right to reside for as long as s/he remains a ‘qualified person’,3 Reg 14(1) EEA Regulations and that term is defined as an EEA national in the UK as a jobseeker, worker, self-employed person, self-sufficient person or student as well as people who can retain the status of worker or self-employed person. Only two of these groups have been amended: jobseekers and those retaining worker status while duly recorded as involuntarily unemployed and registered as a jobseeker with the DWP (the latter group is referred to in this article as ‘those retaining worker status while involuntarily unemployed’). No other groups within the definition of ‘qualified person’ have been affected.

There are two elements to the changes: firstly, the conditions that must be satisfied to be in either of the two groups have been amended and, secondly, new restrictions have been imposed after six months have elapsed.

From 1 January 2014, to retain worker status while involuntarily unemployed, or to be defined as a jobseeker, for the purpose of being a ‘qualified person’, the person must satisfy both condition A and B:

While prior to 1 January 2014 a jobseeker had to satisfy A(i) and B, the first requirement was rarely considered by decision makers, and arguably this has always been correct.4 Shanani v SSHB [2013] UKUT 315 para 39 It is unclear the new alternative requirement of A(ii) will change decision making for jobseekers and, at the time of writing, promised guidance on this change has not yet been published.

It is not obvious why satisfying condition A has been made necessary for those retaining worker status since this can only apply to those who have just had right to reside as a worker. It is possible that in using the word ‘immediately’ the government may be seeking to reduce the tolerance, shown by the Upper Tribunal, of gaps between ceasing work and registering as a job-seeker/duly recording involuntary unemployment. Such gaps have been held not to be fatal to the retention of worker status provided the person has remained in the labour market, taking account of the length of the gap, the reasons for it and the claimant’s actions during the gap.5 SSWP v IR [2009] UKUT 11 (AAC) (20/1/09); SSWP v MK [2013] UKUT 0163 (AAC)

The Upper Tribunal’s emphasis on the need for the person to remain in the labour market during any gap is consistent with the new condition A(ii) which requires that the person be ‘seeking employment, immediately’ after having a right to reside as a worker (or other qualified person). It remains to be seen, therefore, whether this particular new requirement will make much difference to decision making.

Contrary to repeated headline announcements, there is not a new six-month limit on entitlement to income-based JSA that automatically applies to all European jobseekers. The six month maximum only applies to the duration that someone can retain her/his worker status while involuntarily unemployed following less than one year’s employment. This does not necessarily mean that entitlement to benefit will end after six months as the person may be able to rely on another right to reside. The amended regulations appear to allow such a claimant to continue to have a right to reside as a qualified person on the basis of being a job-seeker if s/he ‘entered the UK in order to seek employment’ and so satisfies condition A(i) even though s/he now cannot satisfy A(ii).

For those who do not have another right to reside, however, the loss of worker status after six months could have devastating consequences for benefit entitlements – both of the ex-worker and any family members who do not have an independent right of residence.

The additional restriction that applies to job-seekers and those who retain their worker status while involuntarily unemployed after being employed for at least one year is that after six months the evidence that they are required to provide under condition B must be ‘compelling’. It is unclear what will amount to ‘compelling evidence’ since, as noted above, promised guidance has not, at the time of writing, been published. The DWP’s magazine Touchbase however suggests a fairly hardline approach: ‘Compelling evidence will vary from person to person, but a written job offer with a definite start date, for example, could be considered compelling evidence.’8 Touchbase, January 2014 Note that there is no requirement witin Directive 2004/38 for evidence to be ‘compelling’ after six months.

The time before 1 January 2014 does not count towards any of the six-month periods referred to above.9 Sch 3 para 1 The EEA Amending Regulations

The other main amendment to the EEA Regulations of most direct relevance to benefit claimants affects those whose only right to reside is as the family member of a British citizen. In general, British citizens cannot confer rights on their family members in the same ways as other EEA nationals unless they have moved between EEA states exercising European Union treaty rights. The EEA regulations achieve this by excluding British citizens (including those with joint British and other nationality) from the definition of EEA national,10 Reg 2(1) EEA Regulations but then providing an exception if the British citizen has resided in another EEA state as a worker or self-employed person.11 Reg 9 EEA Regulations The change is to require the British person’s centre of life to have transferred to that EEA state taking account of her/his period of residence there as a worker or self-employed person, the location of her/his principal residence and the degree of her/his integration in that EEA state.12 Reg 9 as substituted by Sch 1 para 5 of the EEA

There is limited transitional protection so that the British person is not required to have transferred her/his centre of life if the family member had on 1 January 2014, and continues to have, a permanent right to reside or a valid residence document (or an outstanding application for, or appeal against a refusal of, such a document).13 Sch 3 para 2 of the EEA Amending Regulations

Note that the requirements of this regulation, even before the latest change, are more restrictive than the European Court of Justice was in interpreting the equivalent rights under European law. See p1604 of the current Welfare Benefits and Tax Credits Handbook for further details.

Separate amending regulations, in force from 1 January 2014, introduced an additional condition to be satisfied as part of the habitual residence test (HRT) for income-based JSA. In addition to needing a right to reside and to be ‘habitually resident in fact’, the claimant now needs to have been ‘living in’ the Common Travel Area14 The Common Travel Area is the UK, Ireland, the Channel Islands and the Isle of Manfor the past three months.15 Reg 85A(2) JSA Regulations 1996 (SI No 207) as amended by the Jobseeker’s Allowance (Habitual Residence) Amendment Regulations 2013 No.3196This additional requirement only applies to income-based JSA claims made on or after 1 January 2014. Therefore, if a claim made today is successfully backdated to before 1 January 2014, this new condition will not apply. Contrary to repeated statements in the media, the new requirement does not only affect EEA nationals coming from Europe; it applies to all new claimants (including British and non-EEA nationals). However, importantly, it does not apply to anyone who is exempt from the HRT.16 Reg 85A(4) JSA Regulations 1996; listed on pp1582-3 of the Welfare Rights and Tax Credits Handbook

The phrase ‘living in’ is not defined and there is no requirement that the three months be continuous. Therefore, this condition may still be satisfied despite one or more temporary absences within the three months, provided the circumstances of each absence did not mean that the claimant ceased to live in the Common Travel Area.17 DMG Memo 28/13

For those covered by the EU social security co-ordination rules, it is important to check if they can assist. A claimant may benefit from these rules if s/he is an EEA national, a refugee, or a stateless person, and has been subject to the social security legislation of another EEA state or is a family member of such a person. The aggregation principle of the co-ordination rules can allow periods of residence in another member state to be used to satisfy the residence requirements of a UK benefit.18 Art 6 EU Regulation 883/04 The claimant will still need to be accepted as ‘habitually resident in fact’, and for many claimants this will require completing an appreciable period of actual residence. However, the length of this period, if any, depends on all of the claimant’s circumstances and again the co-ordination rules can assist.19 See pp1583–5 of the Welfare Benefits and Tax Credits Handbook 2013/14

Remember, if the claimant is covered by the co-ordination rules and had been working in another EEA state, s/he may be able to claim contribution-based JSA if s/he had paid sufficient contributions in the other EEA state; or, if s/he was receiving an unemployment benefit immediately before moving to the UK, s/he may be able to continue this claim.20 See pp1576–7 of the Welfare Benefits and Tax Credits Handbook 2013/14

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