FREQUENTLY ASKED QUESTIONS ABOUT THE RIGHTS OF EEA NATIONALS TO ACCESS BENEFITS AND THE CHANGES FOR A2 NATIONALS FROM 1 JANUARY 2014

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1 FREQUENTLY ASKED QUESTIONS ABOUT THE RIGHTS OF EEA NATIONALS TO ACCESS BENEFITS AND THE CHANGES FOR A2 NATIONALS FROM 1 JANUARY Who are A2 nationals? These are citizens of the two countries that acceded to the European Union on 1 January 2007: Romania and Bulgaria. 2. What change happened on 1 January 2014? In brief, on 1 January 2014 the transitional arrangements limiting access to the UK labour market for Romanian and Bulgarian nationals, as set out in the Accession (Immigration and Worker Authorisation) Regulations 2006, came to an end. The requirement for Bulgarian and Romanian nationals to have a worker authorisation document (a work permit) in order to be able to work in the UK, unless they are exempt, no longer applies. Both rights of residence and eligibility for benefits are brought in line with the rights of other EEA nationals. Further detail on the changes and specific entitlements are set out below. 3. What were the rights of A2 nationals until 1 January 2014? (a) Rights of Residence Even before 1 January 2014, Bulgarian and Romanian nationals had the same EU free movement rights as other EEA nationals, however, under the transitional arrangements they faced restrictions on their right to work or exercise a right to reside as a jobseeker in the UK. Bulgarian and Romanian nationals had a right of residence in the UK without exercising a Treaty right for the first three months of their stay. They were able to legally reside in the UK as long as they wished, if exercising a Treaty right as a self-employed person, a self-sufficient person or a student. They could also legally reside in the UK for as long as they wished if they are the family member (as defined in the legislation) of another EEA national who was exercising a Treaty right or had a permanent right to reside in the UK. However, Bulgarian and Romanian nationals did not automatically have a right to reside in the UK as workers or jobseekers and were only able to work in the UK if they: (a) were exempt from worker authorisation requirements, or (b) held a valid accession worker authorisation document Therefore, in order to work in the UK, Bulgarian and Romanian nationals had to have an accession worker authorisation document, prior to starting work in the UK (unless exempt whereby they had to apply for a blue registration certificate to confirm this right). A Bulgarian or Romanian national who was subject to worker authorisation could not establish a right of residence in the UK as a jobseeker. After a period of 12 months of uninterrupted work in the UK, if holding an accession worker authorisation document and working in compliance with its conditions, a Bulgarian or Romanian national ceased to be subject to worker authorisation and were longer required to hold an accession worker authorisation document in order to work in the UK.

2 (c) Entitlement to Benefits Bulgarian and Romanian nationals were not able to access benefits as jobseekers, unless they had completed 12 months of authorised work or were exempt from the Worker Authorisation Scheme. After this period they were able to claim benefits on the same basis as other EEA nationals which are set out below, at (4). The most significant difference between other EEA nationals and A2 nationals is that if they were still subject to the worker authorisation scheme (i.e. had not completed 12 months authorised work and were not exempt) they were not (at least under UK law) able to retain their worker status if they had to temporary incapacity or involuntary unemployment. 4. What is the current entitlement of EU migrants to benefits in the UK? Most benefits have a right to reside test attached, which restricts the circumstances in which EEA nationals are entitled to benefits. Usually this test will require a claimant to have a right to reside as a qualified person in accordance with the Immigration (EEA) Regulations 2006 meaning that the claimant must be; A jobseeker (although this is not sufficient for some benefits) A worker A self-employed person Someone who has retained their worker or self-employed status (see below) A self-sufficient person with comprehensive sickness insurance (although this will probably only work in limited circumstances) A student with comprehensive sickness insurance (although, again, this will probably only work in limited circumstances) A permanent resident The family member of an EEA national in one of the above categories Contribution-based Jobseeker s Allowance and contribution-based Employment and Support Allowance do not have a right to reside requirement. For EU migrants who have made National Insurance contributions in the UK and social security contributions in other EU Member States, Jobcentre Plus must count the contributions made elsewhere in the EU as if they were NI contributions for the purpose of determining if the person has made sufficient contributions to get the contribution-based benefit. As a matter of UK benefits law, citizens of EU countries ( EEA nationals) are entitled to access benefits in the following circumstances: i. When they are seeking work. EU migrants looking for work in the UK and who meet the other requirements imposed on British citizen jobseekers are entitled to access income-based Jobseeker s Allowance. If they are awarded income-based JSA they are also entitled to Housing Benefit and Council Tax Reduction on the same basis as UK nationals. Under changes to the Immigration (European Economic Area) Regulations, introduced on 1 January 2014, EEA nationals will not now be able to exercise a right to reside as a jobseeker for more than six months unless they provide compelling evidence that they are seeking work and have a genuine

3 chance of becoming engaged. This will therefore limit a jobseekers entitlement to income-based JSA and Housing Benefit/Council Tax Reduction. Furthermore, under changes to the Jobseekers Allowance Regulations, also introduced on 1 January 2014, EEA migrants will only be able to claim Jobseeker s Allowance if they have resided in the UK for at least 3 months. The AIRE Centre believes that this restriction is unlawful under EU law. ii. When they are working or self-employed. EU migrant workers are entitled to all the same in-work benefits (e.g. Housing Benefit) and are entitled to housing and homelessness assistance on the same basis as UK nationals. iii. In some circumstances when they have stopped work or self-employment. An EU migrant worker, temporarily unable to work due to illness or accident, can access out-of-work benefits, including income-related Employment and Support Allowance, as well as housing and homelessness assistance. This is also applicable to an EU migrant who has worked for at least one year and is registered as a jobseeker with Jobcentre Plus. Such a person does not have to rely on jobseeker status, as they are still considered a worker. Under recent changes to the Immigration (EEA) Regulations 2006, EEA nationals must, in such a situation, provide compelling evidence that they continue to seek work and have a genuine chance of being engaged, in order to retain worker status beyond six months. An EU worker who has completed a fixed-term contract of less than one year can also retain their worker status in this way, though again such workers can, under recent changes, only retain worker status for a maximum of six months. AIRE Centre believe that setting an absolute limit of this kind is unlawful as a matter of EU law. EU migrants who stop work and go into vocational training related to their previous employment can also retain their worker status in a similar way, and if they were made involuntarily unemployed, they do not have to show a link between their vocational training and their last employment. iv. Permanent residents EU migrants will normally acquire permanent residence once they have resided legally 1 in the UK for a continuous period of five years. Although automatic, an EEA4 form should be filled in to get a permanent residence card from the Home Office in order to certify this status. The form is not required in order to access benefits, as permanently resident EU nationals are entitled to access all benefits, housing and homelessness assistance on exactly the same terms as British Citizens. Some EU migrants can acquire permanent residence before five years have elapsed. For more information, contact info@airecentre.org for our information note on acquiring the Right of permanent residence. v. Family members of the above Family members will be entitled to the same access to benefits. This includes spouses, civil partners, children (and stepchildren) under 21, older dependent children and stepchildren and dependent relatives in the ascending line of the EU migrant and/or her spouse. It does not matter if these 1 The authorities in the UK will expect a person to show that she has been a jobseeker, a worker, self-employed, self-sufficient, a student and/or a family member of another EU migrant in one of those categories at all times during a five-year period. The AIRE Centre and MRN think that this might be too broad, and that the term legally resident might cover more. Breaks of less than six months in any one year do not interrupt five years residence for these purposes.

4 individuals are EEA nationals or not. Other relatives of EU migrants in the above categories (e.g. durable partners, cousins, aunts, nephews) can also access benefits, but only if they have been recognised as extended family members by the UK Border Agency and given residence documentation. vi. Self-sufficient EEA nationals and students? UK benefits legislation does not expressly prevent EEA nationals from relying on a right to reside as a self-sufficient EEA national, or student, in order to claim benefits. However, in practice, the UK authorities operate a blanket policy under which EEA nationals claiming social assistance benefits are automatically considered a burden on the social assistance system of the UK. Consequently, they are considered not to meet the sufficient resources condition for being a student or self-sufficient EEA national. According to a recent Court of Justice of the European Union judgment, C-160/12 Brey, drawing this automatic conclusion is unlawful. Instead, the court said that an individual assessment is required in every case, to determine whether the person in question would be an unreasonable burden on the social assistance system. Factors relevant to this assessment include the length of an individual s residence in the UK, whether or not the difficulties they face are temporary, and how long they would need to claim the benefit for. Any assessment, applicable to all EU law, must be in accordance with the principle of proportionality. It is not yet clear how the judgment in Brey will be applied in the UK. 5. Is the right to reside test legal? The AIRE Centre believes that the application of a right to reside test for all EEA nationals to income-based Jobseekers Allowance, income-based Employment and Support Allowance, and State Pension Credit is illegal as a matter of EU law. These benefits fall under a piece of EU social security law that prohibits discrimination on grounds of nationality. The AIRE Centre believes that applying the right to reside test constitutes unlawful discrimination on grounds of nationality, because all UK nationals automatically pass the right to reside test by virtue of their nationality, whereas EEA nationals must show that they are exercising a qualifying right to reside. The UK Supreme Court rejected this argument in the case of Patmalnice v Secretary of State for Work and Pensions [2011] UKSC 11. However, the European Commission has begun legal proceedings against the UK on this point. 6. What exactly changed for A2 nationals on 1 January 2014? The Accession Treaty signed by both Bulgaria and Romania allowed the UK to set controls on the right of nationals of Bulgaria and Romania to access the UK labour market for a maximum of seven years from the date of accession, i.e. until 1 January The transitional arrangements as set out under the Accession (Immigration and Worker Authorisation) Regulations 2006 came to an end on this date. As a result, Bulgarian and Romanian nationals will have full rights as workers. They will be entitled to full equality with British workers in all aspects of assistance to find work and once in a job to equal working conditions, wages, access to social benefits etc. Rights of Residence/ Worker Authorisation Bulgarian and Romanian nationals were able to move to and reside in the UK before 1 January 2014, and to take up self-employed work or establish themselves in business (see e.g. Case 235/99

5 Kondova). However as of 1 January 2014, the restrictions around their full rights as workers no longer apply, and A2 nationals are now able to exercise a right to reside as a worker or jobseeker in the same way as any other EEA migrant. As a consequence, of 1 January 2014, an accession worker authorisation document is no longer required for an A2 national in order to work in the UK, nor is there any longer a requirement that there be a 12 month period of authorised work in order to have such unrestricted access to the UK labour market. Similarly, any A2 national can now exercise a right to reside as a jobseeker, and register with Jobcentre Plus. Entitlement to Benefits EU law does not permit discrimination among EU workers on the basis of their EU nationality. This prohibition of discrimination on grounds of nationality within the scope of application of the EU Treaty is contained within article 18 TFEU (ex art. 12 EC) ( Within the scope of application of the treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited ). It benefits all nationals of the EU Member States (also as regards free movement of workers (art. 45 TFEU (ex art. 39 EC)) and freedom of establishment (art. 49 TFEU (ex art. 43 EC)) Any efforts to exclude Bulgarian and Romanian workers from things such as social benefits or the NHS, and which are available to British workers, would be unlawful and constitute an obstacle to free movement guaranteed by Article 21 of the Treaty. Therefore Bulgarian and Romanian nationals are now entitled to benefits on the same basis as other EEA nationals. I The biggest change, post 2014 is that A2 nationals will be able to claim income-based Jobseeker s Allowance, Housing Benefit and Council Tax Reduction on the same basis as all other EEA migrants. However, equally the new restrictions on exercising a right to reside as a jobseeker, and being entitled to JSA, which were introduced on 1 January 2014, will apply to A2 nationals, just as they do to all other EEA nationals 7. Will there be any lingering effects for A2 nationals? For the purposes of acquiring permanent residence, the UK authorities are unlikely to consider that periods of unauthorised work in the UK where such authorisation was required, prior to 1 January 2014, can be considered as periods of legal residence. Economically inactive A2 nationals who are not able to work or sign on as jobseekers after 1 January 2014, and are unable to show that they have retained worker status (e.g. because they did not complete 12 months authorised work before stopping work) are likely to face the greatest difficulties in showing that they are entitled to benefits. They may argue that they have acquired permanent residence if they have been in the UK for five years, but they will be expected to show proof of their legal residence over this period, and periods of unauthorised work are likely to be discounted. 8. What about Croatian nationals? Croatia acceded to the EU in 2013 and nationals of Croatia are subject to transitional measures, similar to those in place for A2 nationals before 1 January This means that, unlike other EEA nationals, Croatian nationals face restrictions on their ability to exercise a right to reside as a worker or jobseeker in the UK. For more information, can contact the AIRE Centre (info@airecentre.org).

6 9.Where can I get advice for EEA nationals? The AIRE Centre is a specialist law centre providing free legal advice on European law issues, including EU law on the free movement of persons. If you have a query about an individual case, the best way to get in touch is by info@airecentre.org. We will then log in your request, and if we are able to take on your request for advice, we will aim to provide you with written advice within two weeks. If you want to discuss this briefing, you can contact esibley@airecentre.org.