EEA Nationals: Right to Reside for Welfare Benefits & Housing. Kelly-Marie Jones Hammersmith & Fulham Law Centre January 2016

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1 EEA Nationals: Right to Reside for Welfare Benefits & Housing Kelly-Marie Jones Hammersmith & Fulham Law Centre January 2016

2 European Economic Area 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

3 EEA Rights to Reside Initial Right of Residence + Family members Students + Family members Self-Sufficient Persons + Family members Job Seekers + Family members Workers, Retained workers + Family members Self-Employed, Retained self-employed + Family members Permanent Right to Reside + Family members Derived Rights to Reside

4 Housing & Welfare Benefits Housing: Assistance Emergency accommodation Permanent accommodation Welfare Benefits: Income Support Employment & Support Allowance Job Seekers Allowance Housing Benefit Universal Credit

5 Habitual Residence Test Habitually resident in fact Appropriate right to reside for claimed benefit 3 months residence No Standard Legal Test look at factors: Resident Settled intention Appreciable period of residence

6 Initial right of residence: First 3 months Housing: No IS: No CB ESA: N/A IR ESA: No CB JSA: N/A IB JSA: No HB: No UC: No

7 Students Enrolled at accredited institution On a course of study/ vocational training Comprehensive sickness insurance Sufficient resources Self-sufficient persons Comprehensive sickness insurance Sufficient resources

8 Students & Self-sufficient persons Housing: Yes IS: No CB ESA: N/A IR ESA: No CB JSA: N/A IB JSA: No HB: No UC: No

9 Job Seekers Not in first 3 months Seeking employment Genuine prospect of work Max 91 days unless compelling evidence

10 Job Seekers Housing: No IS: No CB ESA: Yes IR ESA: No CB JSA: satisfy contribution conditions + job seeking IB JSA: low income + low capital + job seeking + 3 months residence + HRT HB: No UC: low income + low capital + job seeking + 3 months residence + HRT

11 Workers & Retained Workers In an employment relationship Provide services Receive remuneration Under direction Genuine & effective NOT marginal & ancillary

12 Workers & Retained Workers Housing: YES IS: working less than 16/24 hours per week + 3 months residence CB ESA: retained workers only + satisfy contribution conditions IR ESA: retained workers only + low income + low capital + 3 months residence CB JSA: satisfy contribution conditions IB JSA: low income + low capital + working less than 16/24 hours + 3 months residence HB: low income + low capital + 3 months residence UC: low income + low capital + 3 months residence

13 Self-Employed & Retained Self-Employed Self employment Provide services Receive remuneration Not under direction Genuine & effective NOT marginal & ancillary

14 Self-Employed & Retained Self-Employed Housing: YES IS: working less than 16/24 hours per week + 3 months residence CB ESA: retained self-employed only + satisfy contribution conditions IR ESA: retained self-employed only + low income + low capital + 3 months residence CB JSA: satisfy contribution conditions IB JSA: low income + low capital + working less than 16/24 hours + 3 months residence HB: low income + low capital + 3 months residence UC: low income + low capital + 3 months residence

15 Permanent Right to Reside Resided legally for 5 years: Initial Right of Residence* Job Seeker* Worker & Retained Worker Self-Employed & Retained Self-Employed Self-Sufficient Student Self-Sufficient Person Retired/ permanently incapacitated

16 Permanent Right to Reside Housing: HRT IS: working less than 16/24 hours per week + HRT CB ESA: satisfy contribution conditions IR ESA: low income + low capital + 3 months residence + HRT CB JSA: satisfy contribution conditions IB JSA: low income + low capital + 3 months residence + HRT HB: low income + low capital + 3 months residence + HRT UC: low income + low capital + 3 months residence + HRT

17 Derived Rights to Reside Chen parents primary carer of self-sufficient EEA national Children of Chen parents Ibrahim/ Teixeira families worker primary carer of child in education Children of Ibrahim/ Teixeira parents Zambrano carers primary carer of British citizen

18 Derived Rights to Reside NOT Zambrano carers Housing: HRT IS: HRT CB ESA: satisfy contribution conditions IR ESA: low income + low capital + 3 months residence + HRT CB JSA: satisfy contribution conditions IB JSA: low income + low capital + 3 months residence + HRT HB: low income + low capital + 3 months residence + HRT UC: low income + low capital + 3 months residence + HRT

19 Practical Advice Review of Housing decision can take up to 8 weeks Subsequent appeal can take much longer Mandatory Reconsideration of Benefits decision can take up to 3-6 months Subsequent appeal can take a further 3 months Get working Collate evidence

20 Sources Treaty on the Functioning of the European Union EU Directive 2004/38/EC Allocation of Housing & Homelessness (Eligibility) (England) Regulations 2006 Immigration (European Economic Area) Regulations 2006