Residence rights round-up

Issue 247 (August 2015)

Henri Krishna examines the most significant developments in residence-related rights for European migrants over the last year.

Co-ordination rules

In two recent Upper Tribunal cases,1 Judge Jacobs has helped clarify some issues about how the European Union (EU) social security co-ordination rules (EC Regulations 883/2004 and 987/2009) should operate regarding identification of which European Economic Area (EEA) state is the ‘competent state’ to pay ‘sickness benefits’.

In both cases, EU nationals resident in the UK were receiving pensions from another EEA state, but not from the UK. This meant in terms of ‘sickness benefits’, which in the UK have been held to include attendance allowance (AA) and the care component of disability living allowance (DLA), the co-ordination rules treat the state paying the pension as ‘competent’ for paying sickness benefits even if the EEA national is resident in another state.2

In the first case, however, the state paying the pension (Sweden) made a declaration that it did not consider itself competent even though it was paying the claimant a pension.

So where did this leave the claimant? To resolve this, Judge Jacobs made reference to the implementing regulation 987/2009 of the co-ordination rules, which deals with these matters and appears to have been overlooked by the DWP. These regulations require the ‘competent institutions’ to co-operate and to sort such a dispute out between them. If they cannot agree, it can be arbitrated by the Administrative Commission. In the meantime, they also require that the claimant is not left without benefit, as ultimately one of the states will be competent to pay it. Therefore, provided all the other conditions of entitlement are met, it is usually either the state of residence or the state in which the claimant is employed which pays the benefit on a provisional basis. Basically, what this amounts to is that it is not the claimant’s responsibility to sort out what is essentially an administrative matter for member states, and s/he should not be left out of pocket in the interim.

The other matter pointed to by Judge Jacobs in the first case is what the implementing regulations have to say when there is no dispute about competence but the application has been made in a state which is not competent. This was dealt with more thoroughly in the second case where it was directly relevant. In that case, the state paying the pension (Greece) had not, yet, indicated that it was not competent. However, as a claim had been made in the UK, the implementing regulation requires that the authority which has received the application then pass it to the competent authority ‘without delay’, and it is treated as having been made on the date originally submitted.

What this case demonstrates is that the co-ordination rules do not require the claimant to work out which state might be competent for paying their benefits – that is down to the administrating authorities to work out between themselves and the claimant should not lose out as a result.

An unlawful extension

In a recent pension credit case in the Upper Tribunal, Judge Ward held that the extension of restrictions to access to the UK’s labour market for A8 nationals (the Workers Registration Scheme) for the two years between May 2009 and 2011 was unlawful.3 The significance of this for the appellant and other nationals of the former A8 states is that periods of ‘unregistered work’ – periods between jobs when still required to register (ie, when other EEA nationals would have retained worker status) and jobseeking – may all have counted as legal residence and so be significant, particularly if seeking to establish that a permanent right to reside has been acquired.

The accession treaties permitted a two-year extension to the worker restrictions for A8 nationals where there would be ‘serious disturbance’ to the member state’s labour market. Judge Ward found that the evidence used by the government to determine whether this test was met (The Migration Advisory Committees assessment) did not support any such disturbance once the required level of scrutiny and proportionality was applied, and so the extension was unlawful.

CPAG understands that the Secretary of State has sought permission to appeal from the Upper Tribunal, but this has been refused and there is now an application to appeal before the Court of Appeal. In the meantime, the decision of the Upper Tribunal is binding on decision makers, although they may choose to stay decisions relying on this judgment pending the outcome of any appeal.

Bringing up baby

The Saint Prix judgment4 last year was a significant victory for women who have to stop work due to the later stages of pregnancy. A full discussion of the judgment can be found in Bulletin 241, p6, but essentially the Court of Justice of the European Union (CJEU) found that women who have to stop working, or who are seeking work, can retain their worker status through the remainder of their pregnancy and into its ‘aftermath’. To do so, the pregnant woman must intend to return to work within a ‘reasonable period’. Such a period is to be determined by reference to national rules on maternity leave, which in the UK is 52 weeks. However, in guidance issued following the CJEU’s judgment,5 the DWP has restricted this to the 26 weeks during which a woman can claim income support when pregnant and immediately after. CPAG has been representing in one of three joined test cases before the Upper Tribunal (ADR v SSWP, file number CIS/1288/2012) which challenge this interpretation, and the judgment is expected imminently. Check CPAG’s website and future Bulletins for updates.

In a further, unrelated, UK case, a woman was found to have retained worker status while in receipt of maternity allowance (MA).5 The DWP conceded that MA is a benefit related to the labour market and, as such, the judge found that being in receipt of it maintained a woman’s connection to the labour market, which is the essential feature for someone to retain worker status – eg, s/he has not left the labour market completely as s/he would have done if permanently unable to work due to illness or disability.

This builds on cases such as the Elmi judgment6 where it was found that a woman retained worker status when not in receipt of jobseeker’s allowance (JSA) but had otherwise registered her intention to find work on the habitual residence form.

Testing the borders

A number of CPAG current test cases relate to residence issues, including the Saint Prix-related case mentioned above. In another case before the Upper Tribunal (file numbers CDLA/527/2015 and CDLA/528/2015), CPAG is seeking to challenge the past presence rules for DLA, as this discriminates against children who have been granted refugee status but who have not yet been in the UK for the required 104 weeks. Updates and more details of these and other test cases can be found at www.cpag.org.uk/test-cases. Note also that CPAG is seeking to challenge the ‘genuine prospect of work’ test.

UC for EEA

Under the current ‘gateway conditions’ for universal credit (UC), EEA nationals can’t claim because one of the conditions is being a British national. Therefore, like British nationals who cannot pass through the gateway, EEA nationals will continue to claim the ‘legacy’ means-tested benefits and tax credits. However, this is not the case in the very limited geographical area where the ‘digital service’ has been introduced – currently just a few postcodes in south London, with a few more announced for the near future.

In the digital service area, from 10 June 2015 there has been no nationality requirement, or indeed other gateway conditions, and so EEA nationals can claim UC provided they pass its habitual residence test. But this test has been amended7 so that it is no longer satisfied if the only right to reside is as a jobseeker – ie, like all means-tested benefits at present, apart from JSA. It seems likely that the same amendments will eventually apply in all UC areas once the roll-out is further on.

GPOW!

Advisers are becoming increasingly familiar with the ‘genuine prospect of work test’ (GPOW). This is the DWP’s interpretation8 of the requirement for jobseekers and those who have retained worker status while involuntarily unemployed to provide ‘compelling evidence’ of their work seeking and prospects of getting a job at the end of a ‘relevant period’ – ie, the 91 days for jobseekers and six months for retained worker status. There is a detailed critique and outline of the arguments that can be used to challenge the GPOW (‘KAPOW to the GPOW’) Here is a brief summary of possible routes to challenge GPOW decisions.

  • The GPOW is DWP guidance only, not law.
  • No equivalent guidance has been produced for local authorities or by HMRC (publicly) and they need to make their own decisions about entitlement, not slavishly follow the DWP’s decision on JSA entitlement.9
  • ‘Compelling evidence’ is not defined, so is open to other interpretations.
  • If someone has been claiming and receiving JSA up to the date of GPOW, in what way have they not been providing compelling evidence of their jobseeking and genuine prospect of work given the current conditionality regime?
  • As it only applies to those whose only right to reside is as a jobseeker or someone who retains worker status while involuntarily unemployed, does the claimant have another right to reside (eg, a derivative right as a primary carer, permanent right to reside or right to reside as a family member) or could another member of the household claim instead?
  • No such requirements in EU legislation or caselaw so can be challenged by direct reference to EU law which takes precedence over incompatible UK law.10

CPAG encourages claimants and advisers to challenge any negative GPOW decisions. Note also that CPAG is interested in a challenge to the ‘genuine prospect of work’ test.

What else?

Other significant developments include the following.

  • More restrictive time limits were placed on having a right to reside as an EEA jobseeker from 10 November 2014 (see Bulletin 243, p7).
  • The Court of Appeal has rejected arguments that Zambrano carers should have full access to means-tested benefits, child benefit and child tax credit (CTC), finding that other provisions could meet children’s essential needs.11 Further appeals to the Supreme Court and beyond are likely.
  • The DWP has recently published new guidance to its decision on the permanent right to reside.12 This does not follow any significant court decision or legislative change, so hopefully is just an attempt to improve DWP staff’s knowledge of such a right.
  • The long-in-the-making challenge by the European Commission to the UK right to reside test for child benefit and CTC was due to be heard in the CJEU on 4 June 2015. The decision may still take some time.

 


 

Please be aware that welfare rights law and guidance change frequently. Older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.

  • 1. SSWP v HR (AA) [2014] UKUT 571 (AAC) and SSWP v AK (AA) [2015] UKUT 110 (AAC)
  • 2. Arts 24, 25 and 29 of EC Regulation 884/04. Together these mean that a state paying a pension may be responsible for paying sickness benefits in kind (eg, NHS treatment) and ultimately it is that state which is also responsible for paying sickness benefits in cash – eg, AA. In some cases, this might be overridden if the pensioner is working or receives a pension from another state.
  • 3. TG v SSWP (SPC) [2015] UKUT 50 (AAC)
  • 4. Saint Prix v SSWP C507-12 5 DMG paras 073210 - 073224
  • 5. SSWP v MM (IS) [2015] UKUT 128 (AAC)
  • 6. SSWP v Elmi [2011] EWCA Civ 1403
  • 7. Universal Credit (EEA Jobseekers) Amendment Regulations 2015 No.546
  • 8. See DMG para 073080 onwards
  • 9. See LB Hillingdon v MJ and others (HB) [2009] UKUT 151 (AAC)
  • 10. In SSWP v MM (IS) [2015] UKUT 128 (AAC), Judge White found no reason that the right to reside of a woman with retained worker status while involuntarily unemployed should not last far beyond six months under Art 7 of EC Directive 38/2004 while registered as a jobseeker with the relevant employment office.
  • 11. Sanneh and others v SSWP [2015] EWCA Civ 49
  • 12. Memo DMG 16/15