Pamela Fitzpatrick describes new regulations affecting the habitual residence test and in particular the right-to-reside element of the test.
Introduction
New regulations came into force on 30 April 2006 amending the existing habitual residence and right-to-reside tests.
The Social Security (Persons from Abroad) Amendment Regulations 2006 reflect the changes introduced to EC Residence rights by EC Directive 2004/38. This new Directive replaces all previous EU Residence Directives and had to be adopted by all member states of the EU by 30 April 2006 at the latest.
EC Residence Directive 2004/38
The Directive gives all EU nationals and their family members a right of entry to any EU state and also allows an initial right of residence for the first three months of arrival. This right of residence is subject only to the requirement that the person holds a valid passport or identity card.
The Directive provides an extended right of residence beyond the initial three-month period to the following categories:
•employed or self-employed (workers);
•economically inactive people who have sufficient resources for themselves and their family to avoid becoming an unreasonable burden on the social assistance system
1 Social assistance is generally taken to mean benefits such as income support. of the host member state during their period of residence and who have comprehensive sickness insurance cover;
•students who provide a declaration at the start of their studies that they have sufficient means to support themselves and who have comprehensive sickness insurance cover;
•former workers who sign on for jobseeker's allowance;
•workers who are temporarily sick;
•former workers who have reached pension age who have worked in the UK for at least the preceding 12 months and who have resided in the UK for more than three years;
•former workers who have resided in the UK for two years or more and who have stopped work due to permanent incapacity. (If the incapacity is due to an industrial injury the person does not have to meet the two-year residence rule);
•family members of any of the above who are accompanying or joining the EU national;
•family members of an EU national who has had a right of extended residence where the EU national has died or left that member state;
•family members of an EU national with a right of extended residence who divorce or end a civil partnership. Where the family member is not an EU national, they must also satisfy one of the following:
- the marriage or civil partnership must have lasted at least three years, including one in the host member state;
- the non EU national has custody of the EU citizen's children;
- the non EU national has been subject to difficult circumstances such as domestic violence;
- the non-EU national has a right of access to a child in that member state.
The Directive has extended the definition of 'family member' so that the rights of residence are now also enjoyed by the unmarried partners of EU nationals and also to civil partners.
The Directive has not currently been extended to Iceland, Liechtenstein, Norway and Switzerland, who are not members of the EU. However, discussions are currently taking place and it is likely that both the EEA Agreement and the Agreement with Switzerland will be amended to extend the rights to all four states. In anticipation of this change, the UK Regulations apply to all EEA states plus Switzerland.
UK regulations
The habitual residence test has been in force for over a decade and has long been a tool to exclude from entitlement to benefit people who are deemed not to have a sufficiently close link with the UK. In 2004 the Regulations were amended so that no person could be habitually resident if s/he did not also have a right of residence in the UK. This change was introduced as a response to the expansion of the EU.
The intention of the latest Regulations is twofold:
•to incorporate into UK social security rules the new rights of residence laid down in the EC Directive;
•to prevent economically inactive EU nationals from being able to claim benefit during the first three months of their stay.
New definition of person from abroad
A person who fails the habitual residence test is defined for social security purposes as a 'person from abroad'. The effect of this is to exclude the person from entitlement to certain benefits. The amending regulations provide a new definition of 'person from abroad' and make slight changes to the groups that may be exempt from the test.
The rules differ very slightly for JSA in that a work-seeker can be treated as having a right to reside whereas for IS, PC, HB and CTB a work-seeker does not. However, if a work-seeker claims income-based JSA, s/he can be passported onto HB and CTB. For IS, PC, HB and CTB a person is a 'person from abroad' if s/he is not habitually resident in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland (the common travel area).
2 There is now a substantial body of case law as to the meaning of habitually resident. See CPAG's Welfare Benefits and Tax Credits Handbook for further details.A person is treated as not being habitually resident if s/he does not have a right of residence. The following groups are treated as not having a right of residence:
•an EU national who is not economically active and is in the UK during the first three months of their stay;
•a work-seeker.
The deeming of EU nationals not to have a right of residence during the first three months of their stay is not at odds with the rights in the EC Directive. Article 24(2) of the Directive states that member states are under no obligation to confer entitlement to social assistance during the first three months of residence, or indeed for any longer period where the person remains economically inactive.
For income-based JSA, the rules are the same apart from the fact that a person who is signing on for JSA will be treated as having a right to reside. This reflects the rights contained in Article 39 of the EC Treaty which allows free movement for those in search of work as well as workers.
Exemptions
The Regulations exempt certain groups from the application of the habitual residence and right-to-reside test. The exempted groups are:
•EEA nationals who are employed or self employed (workers) for the purposes of EC Directive 2004/38;
•former workers who are signing on for JSA;
•family members of any of the above;
•refugees;
•claimants with exceptional leave to enter or remain;
•claimants who have been deported, expelled or otherwise removed by compulsion of law from another country to the UK (but this does not apply to a person subject to immigration control);
•claimants who left Montserrat after 1 November 1995 because of volcanic eruption.
A person who falls into any of these categories is exempt from the test and the claim for benefit should therefore be processed.
Transitional protection
The new regulations preserve existing transitional protection for those entitled to benefit prior to the 2004 changes; however, there is no transitional protection available for claimants who might be affected by the latest changes.
Conclusion
Although the UK amending Regulations purport to incorporate EC rights into UK law, they still fall far short of the UK's obligations under EC law.
3 This right stems from Article 12 of EC Regulation 1612/68 and was confirmed by the ECJ in Baumbast Case C-413/99. The UK Regulations make no reference to the fact that a former worker who has a child in education has a right of residence in the UK under EC law. By omitting this EU right from the Regulations, this group will almost certainly be wrongly refused benefit on the basis they do not have a right of residence.
The Regulations also fail to deal with rights under Article 12 of the EC Treaty. This is a complicated area but it is clear from judgments from the ECJ that a person who has had a right of residence in a member state in the past should receive equal treatment with nationals of that member state in terms of access to benefit.
4 See in particular Trojani Case C-456/02. These rights are not changed by the recent decision by the Tribunal of Commissioners.
5 The cases before the Tribunal of Commissioners appear to involve people who have never had a right of residence in the UK. CIS/3573/2005, CH2484/2005, CIS/2680/2005 and CIS2559/2005. The rights in Article 12 of the Treaty appear only to be triggered once a person has exercised some EC right such as working or looking for work. It is likely to be some considerable time before we have a body of case law to accurately reflect the rights of EU nationals in the UK. Where a person appears to have rights in EC law a challenge should be made. For further advice on any right-to-reside cases, please contact CPAG's advice line.
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