Migrants and Benefits 2014

Migrants and benefitsan advisers guide

Law Centre (NI)for Belfast Integration and Participation Project

Page 2 | Migrants and benefits

This project is supported under the Belfast Peace III Plan by the European Union’s European Regional Development Fund through the Peace III Programme

Migrants and Benefits - An Adviser’s Guide

Patricia Carty

Published by Law Centre (NI) on behalf of Belfast Integration and Participation Project

February 2014

ISBN 978-1-872299-29-7

© Law Centre (NI) and Belfast Integration and Participation Project 2014

All rights reserved. No part of this publication may be reproduced, stored on any retrieval system or

transmitted in any form by any means, including photocopying and recording, without the prior written

permission of Law Centre (NI).

Disclaimer: Although every effort is made to ensure the information in Law Centre publications is accurate,

we cannot be held liable for any inaccuracies and their consequences.

The information should not be treated as a complete and authoritative statement of the law.

Law Centre (NI) only operates within Northern Ireland and the information in this document is only relevant to

Northern Ireland law.

When reading Law Centre documents, please pay attention to their date of publication as legislation may

have changed since they were published.

This document contains complex legal concepts and is targeted

at advisers. Anyone seeking further advice and information

may contact the Law Centre’s advice line:

028 9024 4401 or 028 7126 2433

Monday to Friday, 9.30am to 1pm

Migrants and benefits | Page 3


Contents

General information about advising migrants

Office of Immigration Services Commissioner

Who can give immigration advice

Checking a person’s immigration status

Different categories of migrants

Technical words and phrases

1.0 Non EEA nationals and benefits

1.1 Immigration status

1.2 Person subject to immigration control

1.2.1 Public funds

1.3 Employment related benefits that can be claimed by a person subject to

immigration control

1.4 Means tested benefits: Income Support, Income-based Jobseeker’s Allowance,

Income-related Employment and Support Allowance, Pension Credit, Housing

Benefit, Universal Credit - person subject to immigration control

1.5 Non-means tested benefits: Attendance Allowance, Carer’s Allowance, Child

Benefit, Disability Living Allowance, Employment and Support Allowance in

Youth, Personal Independence Payment, Severe Disablement Allowance -

person subject to immigration control

1.6 Tax credits - person subject to immigration control

1.7 Families where some members are subject to immigration control and some

are not

1.7.1 Income Support, Income-based Jobseeker’s Allowance, Income-related

Employment and Support Allowance



1.7.2 State Pension Credit

1.7.3 Housing Benefit

1.7.4 Child Benefit

1.7.5 Disability Living Allowance

1.7.6 Tax credits

1.7.7 Universal Credit

1.8 Refugees and benefits

1.8.1 Refugees and Income Support

1.8.2 Refugees and tax credits, Child Benefit, Guardian’s Allowance

1.8.3 Fast track procedure for tax credit claims

2.0 EEA nationals and benefits

2.1 The habitual residence and right to reside test

2.1.1 Exempt groups

2.1.2 Habitual residence – the factual test

2.1.3 Factors relevant to establishing the habitual residence

2.1.4 Resuming habitual residence

2.1.5 EU law and resuming habitual residence

2.1.6 Benefit entitlement where a person fails the habitual residence test

2.1.7 Couples where one person is habitually resident

2.1.8 How to challenge a habitual residence decision

2.1.9 Right to reside

2.1.10 Transitional protection for claims pre-dating 30 April 2004

2.1.11 Excluded rights of residence

2.1.12 EU law rights of residence

2.1.13 What to do if a person is found not to be a person with a right to

reside



2.2 The ordinary residence and right to reside test - Child Benefit and Child Tax

Credit

2.2.1 Initial three month right of residence – Child Benefit and Child Tax Credit

2.3 Ordinary residence and past presence rules – Attendance Allowance, Disability

Living Allowance and Carer’s Allowance

2.4 Contribution-based benefits and employment related benefits and residence

3.0 EU Regulation on co-ordination of social security systems

3.1 Introduction

3.2 Who is covered by Regulation 883/2004/ Personal scope

3.3 What is covered by Regulation 883/2004/ Material scope

3.4 Social security benefits under EC Regulation 883/2004

3.5 Competent state rules

3.6 Equal treatment

3.7 Aggregation

3.8 Apportionment

3.9 Exporting benefits under EC Regulation 883/2004

3.9.1 Benefits exportable on an indefinite basis

3.9.2 Benefits exportable for a limited period or subject to restrictions

3.10 Overlapping benefit rules

Appendix 1: Rules affecting Croatian nationals

Appendix 2: Rules that affected nationals of Bulgaria and Romania until 31

December 2013



General information about advising migrants

Any adviser can try to establish a person’s immigration status by checking the person’s

passport or other documents issued by the Home Office. However, it is a criminal offence to

give immigration advice or provide immigration services, unless you are a solicitor or a

barrister or your organisation is authorised to do so by the Office of the Immigration Services

Commissioner.

The Office of Immigration Service Commissioner

The Office of the Immigration Services Commissioner (OISC) is an independent, non-

departmental public body set up under the Immigration and Asylum Act 1999. The OISC’s

primary role is to regulate the circumstances when an adviser can give immigration advice or

provide immigration services.

Who can give advice?

If you are a solicitor or a barrister or your organisation is regulated by the OISC then you can

give immigration advice. The OISC regulations mean that most advisers are permitted to

advise only at a general level (Level 1 adviser or a non-specialist adviser). There are some

organizations, including Law Centre (NI), that are able to give specialist advice (level 2 and 3).

Generally an adviser regulated by the OISC can be a non-specialist adviser (level 1) or a

specialist adviser. If your organisation can provide non-specialist advice then you can explain

the process to clients and can advise on straightforward applications, such as when a person

is applying for further leave to remain as a student. However, if the person’s circumstances

are not straightforward, then the application must be handled by a specialist adviser, for

example if the person is an overstayer or the application is outside the rules. If you are

unsure whether you can advise the person, then you should contact the OISC’s Advice

Session Supervisor.

If your organisation is interested in giving non-specialist advice or would like to provide

specialist advice, then you should contact the OISC.



How to check a person’s immigration status

You can ask to see a person’s travel document, such as a passport or any document or letter

that a person may have that shows her/his immigration status. You should look at a:

Passport - If the person is a non-EEA national (ie not a national of the European Economic

Area), then her/his passport should have a stamp or a residence permit or a Biometric

Residence Permit (BRP) that shows her/his present immigration status.

Right of abode certificate - This is very unusual and shows that the holder has a right of

abode.

Any Home Office document - For example a letter stating that the person has been given

indefinite leave to remain in the UK.

A Biometric Residence Permit (BRP) - The Home Office has been issuing BRPs since

November 2008 and a BRP can be used as an identity document.

Residence card/registration certificate held by European nationals and members of their

family.

A blue travel document (carried by people who have refugee status) or a brown travel

document (carried by some people with Humanitarian Leave to Remain)

Examples of a stamp, a residence permit and a Biometric Residence Permit

If someone has been given leave to enter or remain in the UK, there will usually be a stamp

in the passport. The older stamps look like this:

Leave to enter for/until

SIX MONTHS

No work or recourse to public funds



A Residence Permit looks like this:

The newer Biometric Residence Permit (or BRP) looks like this:

However, the above documents may not establish the person’s present immigration status

and you will need to ask some questions to confirm whether or not the person has a right to

reside in the UK. The most common questions are:

Where was the person born?

Are her/his parents British citizens or Irish citizens?

Is the person an EEA national or the family member of an EEA national who is exercising

Treaty rights?



On what basis did the person obtain leave to enter or remain in the UK? For example, is

she/he a visitor, student or a migrant worker under the PBS?

Does the person have limited leave to remain in the UK or Indefinite Leave to Remain?

Different categories of immigration status:

Right of Abode: Commonwealth citizens with right of abode have the same rights in the UK

as British citizens (see above). They are free from immigration control. They should have

either:

a Certificate of entitlement to right of abode (CERA), which looks like this:

or a stamp in their passport saying:

Holder has the right of abode in the United Kingdom;

or

Holder is entitled to readmission to the United Kingdom.

Categories under the Immigration Rules

Under UK law, the Immigration Rules set out the various ways a person can obtain leave to

enter or remain in the UK. The most common examples are:



The partner or minor child of a British Citizen or a person settled in the UK - The person can

either have limited leave to enter or limited leave to remain in the UK. The BRP will refer to

their relationship and will state that there is no recourse to public funds.

Visitor - The visitor will usually be issued entry clearance or have a stamp on entry allowing

her/him to stay in the UK for up to six months. The stamp or the BRP will also state that the

person is prohibited from working in the UK and cannot have ‘recourse to public funds’.

Points-Based System:

Tier 1 - allows highly skilled persons to work or look for work in the UK. However, this

category is presently closed for anyone outside the UK and for most persons in the UK under

a different category.

Tier 2 - The Tier 2 (General) category is for non-EEA nationals who have been offered a

skilled job to fill a gap in the workforce that cannot be filled by an EEA national or a person

settled in the UK.

Tier 4 - sets out the requirements for non EEA national adults who wish to come to the UK

for their post-sixteen education.

If a person has been given leave to enter or remain in the UK under the Points-Based System

(PBS), the BRP will state what Tier she/he comes under and will clarify what employment

she/he is allowed to undertake and whether that employment needs to be authorized by the

Home Office UK Border Agency. In addition the BRP will state that the person cannot have

recourse to public funds.

There is also the possibility that people who have been granted leave to enter or remain

under the PBS can bring their dependants into the UK (spouse and minor children).



Technical words and phrases

There are some technical words and phrases that have a particular meaning. Here is a brief

explanation of some of those that are used in the Guide.

Accession States / A8 nationals / A2 nationals – in the UK, ‘A8’ is the term given to eight of

the ten countries that joined the European Union in May 2004. These countries are: Czech

Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovak Republic and Slovenia. If you are

a citizen of one of these countries you are known in the UK as an Accession State national or

‘A8 national’. The term ‘A2 nationals’ refers to nationals of the two countries which joined

the European Union (EU) in January 2007 – Romania and Bulgaria. Nationals of A8 and A2

states now have full EU law rights. Croatia joined the EU on 1 July 2013 as an Accession State

and nationals of Croatia are subject to the Worker Authorisation Scheme (see below).

Asylum seeker – a person who has applied to the Home Office for refugee status.

Biometric Residence Permit – a document issued by the Home Office that confirms a person

has the right to be in the UK.

Common Travel Area – the United Kingdom (including Great Britain and Northern Ireland),

the Isle of Man, the Channel Islands and the Republic of Ireland. The Common Travel Area

means that there are no passport controls in operation for Irish and UK citizens travelling

between the two countries.

(The) Department – the government department responsible for paying benefits, which is

the Department for Social Development in Northern Ireland, and the Department for Work

and Pensions in England, Scotland and Wales.

Discretionary Leave to Remain – A decision by Home Office allowing a person to stay in the

UK, even though she/he does not meet the requirements of the Immigration Rules.



Entry clearance – citizens of most countries need to obtain permission from the Home Office

before entering the UK. This permission is referred to as ‘entry clearance’.

EEA national – the European Economic Area (EEA) is made up of the EU which has 28

member states (Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark,

Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania,

Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain,

Sweden, and the United Kingdom), and three European Free Trade Association (EFTA) states

(Iceland, Liechtenstein and Norway). Swiss nationals have similar rights.

EU – European Union (Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic,

Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia,

Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia,

Slovenia, Spain, Sweden, and the United Kingdom)

European treaty right – This refers to the status an EEA national has when she/he can stay in

the UK under European law. It includes when an EEA national is working for an employer,

self-employed, a student, self-sufficient or a jobseeker or is the family member of such a

person.

EU residence documents

If a person is an extended family member she/he must have a residence document in order

to have a right to reside under EU law. EU residence documents are issued by the Home

Office.

In other cases it is not necessary to obtain EU residence documents, however such

documents are useful confirmation of a person’s status where any dispute arises. Under EU

law the document simply confirms the person’s right of residence, it does not confer it. Also

if the person’s circumstances have changed a residence document will not give the person a

right to reside if, on the facts, that right to reside has ended.

EU residence documents are issued by the Home Office. Forms and information are available

on the Home Office website. There are a number of different documents depending on a

person’s circumstances. These are:

http://en.wikipedia.org/wiki/European_Union

http://en.wikipedia.org/wiki/Austria

http://en.wikipedia.org/wiki/Belgium

http://en.wikipedia.org/wiki/Bulgaria

http://en.wikipedia.org/wiki/Cyprus

http://en.wikipedia.org/wiki/Czech_Republic

http://en.wikipedia.org/wiki/Denmark

http://en.wikipedia.org/wiki/Estonia

http://en.wikipedia.org/wiki/Finland

http://en.wikipedia.org/wiki/France

http://en.wikipedia.org/wiki/Germany

http://en.wikipedia.org/wiki/Greece

http://en.wikipedia.org/wiki/Hungary

http://en.wikipedia.org/wiki/Republic_of_Ireland

http://en.wikipedia.org/wiki/Italy

http://en.wikipedia.org/wiki/Latvia

http://en.wikipedia.org/wiki/Lithuania

http://en.wikipedia.org/wiki/Luxembourg

http://en.wikipedia.org/wiki/Malta

http://en.wikipedia.org/wiki/Netherlands

http://en.wikipedia.org/wiki/Poland

http://en.wikipedia.org/wiki/Portugal

http://en.wikipedia.org/wiki/Romania

http://en.wikipedia.org/wiki/Slovakia

http://en.wikipedia.org/wiki/Slovenia

http://en.wikipedia.org/wiki/Spain

http://en.wikipedia.org/wiki/Sweden

http://en.wikipedia.org/wiki/United_Kingdom

http://en.wikipedia.org/wiki/Iceland

http://en.wikipedia.org/wiki/Liechtenstein

http://en.wikipedia.org/wiki/Norway

http://en.wikipedia.org/wiki/Austria

http://en.wikipedia.org/wiki/Belgium

http://en.wikipedia.org/wiki/Bulgaria

http://en.wikipedia.org/wiki/Cyprus

http://en.wikipedia.org/wiki/Czech_Republic

http://en.wikipedia.org/wiki/Denmark

http://en.wikipedia.org/wiki/Estonia

http://en.wikipedia.org/wiki/Finland

http://en.wikipedia.org/wiki/France

http://en.wikipedia.org/wiki/Germany

http://en.wikipedia.org/wiki/Greece

http://en.wikipedia.org/wiki/Hungary

http://en.wikipedia.org/wiki/Republic_of_Ireland

http://en.wikipedia.org/wiki/Italy

http://en.wikipedia.org/wiki/Latvia

http://en.wikipedia.org/wiki/Lithuania

http://en.wikipedia.org/wiki/Luxembourg

http://en.wikipedia.org/wiki/Malta

http://en.wikipedia.org/wiki/Netherlands

http://en.wikipedia.org/wiki/Poland

http://en.wikipedia.org/wiki/Portugal

http://en.wikipedia.org/wiki/Romania

http://en.wikipedia.org/wiki/Slovakia

http://en.wikipedia.org/wiki/Slovenia

http://en.wikipedia.org/wiki/Spain

http://en.wikipedia.org/wiki/Sweden

http://en.wikipedia.org/wiki/United_Kingdom



a Registration Certificate – this applies where the person is an EEA national with a right

of residence under the EEA Regulations;

a residence card – this applies where the person is a non EEA national with the right to

reside as the family member of an EEA ‘qualified person’ or an EEA national who has a

permanent right of residence;

a derivative residence card – this applies where the person is an EEA national with a

derivative right to reside, for example as the primary carer of a worker’s child in

education;

a document certifying permanent right of residence – this applies where the person is

an EEA national;

a permanent residence card – this applies where the person is a non EEA national.

Extended family member of an EEA national – Extended family members are treated as

family members (see below) and will have the same rights as family members, if issued with

an EEA family permit, a registration certificate or a residence card. Extended family member

covers:

a partner in a durable relationship;

a person who is dependent upon the EEA national or is a member of her/his household;

a relative of an EEA national/ spouse or civil partner, who on serious health grounds

needs the personal care of the EEA national/ spouse or civil partner.

Family member of an EEA national – A family member includes:

a spouse or civil partner of an EEA national (a person remains a spouse or civil partner

even if separated and will only cease to be such upon divorce or legal termination of the

civil partnership);

a child, dependent grandchild or great grandchild of the EEA national/spouse or civil

partner of EEA national who is under 21 or dependent (this definition will cover step-

children);

a dependent parent, grandparent or great grandparent of an EEA national, her/his

spouse/civil partner.

NOTE: Family member of a student – The definition of family member restricts the definition

of family member of a student after the initial three month period to her/his spouse or civil

partner, a dependent child of the student or her/his spouse or civil partner unless the

student falls within another category of Qualified Person.



Her Majesty’s Revenue and Customs (HMRC) – the official name for the UK Tax Office.

Illegal entrant – a person who has entered the UK unlawfully. For example, she/he entered

the UK clandestinely or used a false travel document to enter the UK. The Home Office will

have given the person a document stating that she/he is an illegal entrant.

(The) Immigration Rules – a set of rules that set out the circumstances when a person can

enter and remain in the UK. The rules are regularly amended and an up to date version can

be found under policy and law on the website of the Home Office.

Indefinite Leave to Remain – is the status of a person who no longer has any conditions

attached to her/his leave to remain in the UK. This is also known as permanent residence or

settled status.

Limited leave to enter/remain in the UK – the status of a person whose leave to

enter/remain in the UK will expire on a certain date (shown on the stamp or vignette).

Generally a person with limited leave to enter/remain in the UK will also be prohibited from

working and/or from having recourse to public funds.

National Insurance – a tax paid from wages and salaries in the UK which is used to finance

some social security benefits.

National Insurance number – a number issued by the Social Security Agency, which a person

must apply for if she/he intends to work in the UK and if she/he wishes to claim social

security benefits.

Northern Ireland Housing Executive (NIHE) – the government agency responsible for

allocating government owned housing and for offering advice to homeless persons on finding

suitable accommodation.

Overstayer – a person who had leave to enter the UK, but her/his leave has now expired. If

the person has applied for further leave to remain in the UK prior to the expiry of her/his

leave and the application has not been determined by UKBA, then she/he is not an



overstayer. Her/his leave to remain in the UK will continue until the application has been

finally determined.

Points-Based System (PBS) – the scheme for non-EEA migrant workers entering the UK for

employment which from 2008 was brought in to replace the previous work permits and

other schemes.

Public funds – refers to certain funds provided by the government, such as Income Support.

If you are in the UK under the Points-Based System it is unlikely that you will have access to

those benefits that count as public funds, and you should always seek specialist advice

before making a claim to any social security benefit. See section 1 on Non EEA nationals and

benefits for further details.

Refugee – is a person who is at risk of suffering serious harm in her/his country of origin.

Remove/removal – the act of the government to move a foreign national from the UK to a

certain place, usually her/his home country if she/he is unlawfully in the UK or she/he is not

entitled to enter the UK.

Social Security Agency – the government agency responsible for issuing National Insurance

numbers and social security benefits.

Social security benefit – money provided by the government to help some individuals in

financial difficulty.

United Kingdom (the UK) – official name for the state consisting of the island of Great Britain

(England, Scotland and Wales) and Northern Ireland.

Visa – permission to enter the UK; will usually be issued in the form of a stamp (or a vignette)

in a person’s passport.

Work permit – a form of permission formerly granted by Work Permits (UK), a branch of the

Home Office, which allowed non-EEA nationals to work in the UK for a particular employer.



Worker Authorisation Scheme – a scheme set up by the UK government which requires

Croatian nationals to apply for permission to work before starting to work for an employer in

the UK. This scheme does not apply to Croatian nationals who are self-employed or students.

The Worker Authorisation Scheme applied to Bulgarian and Romanian nationals until 31

December 2013 when restrictions ended.

Worker Registration Scheme – the scheme which ran from 2004 to April 2011 through which

A8 nationals had to register their employment with the Home Office for the first twelve

months of being employed. It did not apply to A8 nationals who were self-employed.



1.0 Non-EEA nationals and benefits

1.1 Immigration status

It is important to know a person’s immigration status and the immigration status of each

member of her/his household before advising on entitlement to benefits. This is because a

person’s immigration status can affect her/his entitlement to benefits and tax credits. If a

person is defined as a person subject to immigration control, she/he will be excluded from

most benefits and tax credits.

In some circumstances making a claim for benefit or receiving benefit for a person who is

excluded due to immigration status can have serious consequences for the person’s right to

remain in the UK.

An EEA national is not a person subject to immigration control. If a person and every

member of her/his household is an EEA national, then the rules in this section will not apply.

However, EEA nationals, including UK nationals, must satisfy the rules on residence which are

set out in section 2.

This section covers:

the rules on who is a person subject to immigration control for benefit purposes;

which benefits a person subject to immigration control will be entitled to claim;

the entitlement of couples to benefits where one person is a person subject to

immigration control.

1.2 Person subject to immigration control

A person is not a ‘person subject to immigration control’ if she/he is a:

British citizen;

person with a right of abode;

EEA national;



refugee;

person with discretionary leave to enter or remain;

person with indefinite leave to enter or remain (but not if she/he is the subject of a

formal undertaking).

For benefits and tax credits, a person subject to immigration control means a person who is

not a national of an EEA state and who:

(a) requires leave to enter or remain in the UK but does not have it;

(b) has leave to enter or remain which is subject to a condition that she/he does not have

recourse to public funds;

(c) has leave to enter or remain given as the result of a maintenance undertaking;

(d) has leave to enter or remain solely because she/he is appealing a decision to refuse

to vary a previous decision on leave.

(a) requires leave to enter or remain in the UK but does not have it

Examples include where a person:

is an asylum seeker with temporary admission;

has overstayed her/his limited leave to remain;

has entered the UK illegally;

is subject to a deportation order.

These are just a few examples. Seek specialist advice if a person is refused social security

benefits or tax credits due to being a person subject to immigration control or if contacted by

a person who these rules may apply to.

There are close links between the Home Office and benefit authorities. Making a claim for a

benefit or tax credit may alert the Home Office to a person’s presence in UK and could result

in deportation.

(b) has leave to enter or remain in the UK which is subject to a condition that she/he does

not have recourse to public funds

Examples include people admitted to the UK with time limited leave such as spouses/civil

partners, students or visitors who are given limited leave on the condition that they do not

have recourse to public funds (see section 1.2.1 for what is counted as ‘public funds’).



Such a person will usually have a stamp on her/his passport that she/he is not permitted to

have recourse to public funds. See below for example.

(c) has leave to enter or remain in the United Kingdom given as a result of a maintenance

undertaking;

A maintenance undertaking is a written undertaking given by a person to be responsible for

the maintenance and accommodation of another person coming to the UK. It is sometimes

known as a ‘sponsorship agreement’. Where an elderly relative is seeking to join family in

the UK, the Home Office will usually require a maintenance undertaking. If there is any

doubt about whether the person’s leave was given as a result of an undertaking then she/he

should take specialist immigration advice.

(d) Leave to enter or remain is being extended while they appeal against a refusal to vary

leave.

An example of this is where a person has appealed a decision to vary leave which she/he

previously had.

A person affected by this rule should seek further specialist advice.

1.2.1 Public funds

The list of excluded public funds is contained in the Immigration Rules. This list is subject to

change and should be checked before advising a person to make a claim for a tax credit or

benefit.

At the time of writing the following benefits are public funds:

Attendance Allowance;

Carer’s Allowance;



Child Tax Credit;

Disability Living Allowance;

Income-related Employment and Support Allowance (ESA);

ESA in youth;

Housing Benefit;

Incapacity Benefit for incapacity in youth;

Income-based Jobseeker’s Allowance;

Income Support;

Pension Credit;

Personal Independence Payment (to be introduced in Northern Ireland some time in

2014);

Severe disablement Allowance;

Social Fund payment;

Universal Credit (due to be introduced in Northern Ireland some time in 2014);

Working Tax Credit.

Homelessness assistance and social housing, for example Northern Ireland Housing Executive

and Housing Association accommodation, are also defined as public funds.

If a benefit does not appear on the public funds list, then it will not be treated as a public

fund and a person subject to immigration control may be able to claim it. Also if a person

comes within an exception see sections 1.4 to 1.6, she/he will not be regarded as having


Having recourse to public funds when a person is subject to immigration control can have

serious implications for her/his permission to remain in the UK. This applies even if the

claim for benefit is refused. Having recourse to public funds in breach of leave conditions can

result in deportation, refusal of any future applications for leave to remain, and prosecution.



1.3 Employment related benefits that can be claimed by a person

who is a ‘person subject to immigration control’

A person who is a ‘person subject to immigration control’ may claim any benefit that is not

listed as a public fund.

These include benefits that are based on prior national insurance contributions including:

Contribution-based Jobseeker’s Allowance;

Contribution-based Employment and Support Allowance; and

State Retirement Pension.

A person subject to immigration control may also claim employment related benefits such

as:

Statutory Sick Pay;

Statutory Maternity Pay;

Statutory Paternity Pay;

Statutory Adoption Pay;

Maternity Allowance;

Industrial Injuries Benefits.

EXAMPLE

Khaled is a person subject to immigration control: his visa which permits him to

work states that he must not have recourse to public funds. He is severely disabled

in an accident in the hospital where he works. He is entitled to claim Industrial

Disablement Benefit as well as Statutory Sick Pay. If he satisfies the national

insurance contribution conditions he will be entitled to claim Contribution-based

Employment and Support Allowance when his Statutory Sick Pay ends. He will not

be entitled to means tested benefits or to Disability Living Allowance.



Some provisions in the Welfare Reform Bill (which is currently passing through the Northern

Ireland Assembly and is due to become law some time in 2014) will restrict entitlement to

the benefits listed above to those who have a right to work in the UK. Where a person may

be affected by such a change, an adviser should contact the Law Centre’s advice line.

1.4 Means tested benefits: Income Support, Income-based

Jobseeker’s Allowance, Income-related Employment and Support

Allowance, Pension Credit, Housing Benefit, Universal Credit -

person subject to immigration control

In the limited circumstances set out below, it will be possible for a person who is a ‘person

subject to immigration control’ to receive:

Income support;


Income-related Employment and Support Allowance;

Pension Credit;

Housing Benefit;

Universal Credit (once it is introduced some time in 2014).

This will apply where the person:

has leave to enter or remain given as a result of a maintenance undertaking and she/he

has been resident in UK for at least five years;

has leave to enter or remain given as a result of a maintenance undertaking and the

person who gave the undertaking has died;

is a national of Macedonia or Turkey and is lawfully present in UK. This may apply where

a person has leave to enter or remain for a period which means she/he is lawfully

present. However, such people will have to satisfy the habitual residence and right to

reside test set out in section 2 and temporary admission does not give a person a right to

reside.



1.5 Non-means tested benefits: Attendance Allowance, Carer’s

Allowance, Child Benefit, Disability Living Allowance, Employment

and Support Allowance in Youth, Personal Independence Payment,

Severe Disablement Allowance - person subject to immigration

control

A person who is ‘a person subject to immigration control’ will not be excluded from:

Attendance Allowance (AA);


Child Benefit;

Disability Living Allowance (DLA);

Employment and Support Allowance in Youth (due to be abolished in 2014);

Personal Independence Payment (due to be introduced some time in 2014);

Severe Disablement Allowance;

if she/he:

is the family member of an EEA national, including a British citizen;

is a national or family member of a national of Algeria, Morocco, San Marino, Tunisia or

Turkey who is lawfully working in the UK or who has stopped lawfully working due to

pregnancy, childcare, illness or accident or because she/he has reached retirement age;

has leave to enter or remain given as a result of a maintenance undertaking;

(for DLA, AA and Child Benefit only) is covered by a reciprocal agreement;

was in receipt of benefit before 5 February 1996 (7 October 1996 for Child Benefit).

EXAMPLE

Jill is a person subject to immigration control. She is a citizen of the United States

who entered Northern Ireland under a two year spousal visa which stated that she

must have no recourse to public funds when she joined her English husband who

had taken up employment in Northern Ireland. She is severely disabled. Although

Disability Living Allowance is listed as a public fund, she is entitled to claim it

because she comes within the exception that she is a family member of an EEA

national as her English husband is an EEA national.



1.6 Tax credits and person subject to immigration control

NOTE: If a person is ‘a person subject to immigration control’ but her/his partner is not, or

her/his partner comes within one of the exceptions set out below, it will be possible to make

a joint claim for tax credits, see section 1.7.6

A person who is ‘a person subject to immigration control’ will not be excluded from

entitlement to:

Child Tax Credit;

Working Tax Credit (WTC);

if she/he:

has leave to enter or remain given as a result of a maintenance undertaking and she/he

has been resident in the UK for at least five years;

has leave to enter or remain given as a result of a maintenance undertaking and the

person who gave the undertaking has died;

(WTC only) is a national of Macedonia or Turkey and is lawfully present in UK. This may

apply where a person has leave to enter or remain for a period which means she/he is

lawfully present. However such people will have to satisfy the habitual residence and

right to reside test set out in section 2 and temporary admission does not give a person a

right to reside.

(for up to 42 days in the period of leave) has limited leave with a condition that she/he

does not have recourse to public funds, has not had such recourse to public funds, but

funds that are reasonably expected from abroad have been temporarily interrupted.

1.7 Families where some members are subject to immigration

control and some are not

Different rules apply to specific groups of benefits where a member of a household is a

person subject to immigration control. Advisers should carefully consider sections 1.7.1 to

1.7.7.



1.7.1 Income Support/Income-based Jobseeker’s Allowance/ Income-related

Employment and Support Allowance

Where a person claiming has a partner who is a person subject to immigration control, the

partner will be included in the claim as a member of the household and the person claiming

will only be paid the single rate of a personal allowance, unless the partner falls within one of

the groups set out section 1.4 that can claim means tested benefits.

However, even though no amount will be paid for the partner who is a person subject to

immigration control, she/he will be treated as part of the claimant’s household and her/his

work, income and capital will affect benefit entitlement and will mean that the claimant will

not qualify as a lone parent and may not be entitled to a Severe Disability Premium. If a

person who is not a person subject to immigration control is entitled to a premium, this may

be paid at a couple rate. However, this is something to be cautious about as it may lead to a

partner who is a person subject to immigration control being regarded as having had


EXAMPLE

Samuel is a British citizen. He is entitled to Disability Living Allowance, Income-

related Employment and Support Allowance and Housing Benefit. His wife Lee Ping

joins him from Thailand. She is a person subject to immigration control as her

spousal visa states that she must not have recourse to public funds. Samuel will

continue to receive Income-related Employment and Support Allowance but will

receive the personal allowance at the single rather than couple rate. He will lose

the severe disability premium of Income-related Employment and Support

Allowance as his wife is taken into account as part of his household.

1.7.2 State Pension Credit

Different rules apply to State Pension Credit. Where a person claiming has a partner who is a

person subject to immigration control, then that person will not be included as part of the

household in benefit calculations. This means that the claimant will be paid as a single



person and her/his partner’s income and capital will not be taken into consideration. It may

also be possible to argue that the claimant should be entitled to continue to receive any

additional amount for severe disability.

EXAMPLE

Ruby is a British citizen. She is entitled to State Pension Credit and Attendance

Allowance. Her husband Tarik joins her from Turkey. He is a person subject to

immigration control as his two year spousal visa states that he must not have

recourse to public funds. Ruby will continue to receive State Pension Credit paid at

a single rate. Her husband’s savings of £20,000 will not be taken into consideration

and will not affect her entitlement as he is not included as a member of her

household under State Pension Credit rules. Arguably she should continue to

receive the severe disability addition of State Pension Credit as her husband is not

included as a member of her household.

1.7.3 Housing Benefit

If a claimant’s partner or a child in the household is a person subject to immigration control,

Housing Benefit will include amounts for the partner/child. This can lead to difficulties

because if that partner or child’s leave (immigration status) states that she/he must not

have recourse to public funds, receipt of extra amounts of Housing Benefit could affect

her/his right to remain in the UK. It is advisable to make it clear in any claim for Housing

Benefit that the person’s leave states that she/he is not to have to recourse to public funds

and to expressly request that the award does not include an amount for that person.

1.7.4 Child Benefit

If a claimant is not a person subject to immigration control, it will be possible to claim for a

child for whom the person is responsible even if that child is a person subject to immigration

control. This is because it is only the immigration status of the person claiming that is

relevant.



EXAMPLE

Matthew is a British citizen. His partner Fatima is an asylum seeker. She has one

child. Matthew will be entitled to claim Child Benefit for the child even though the

child is regarded as a person subject to immigration control.

1.7.5 Disability Living Allowance

If a child who is not a person subject to immigration control is the claimant, she/he will not

be excluded from claiming where her/his responsible adult is a person subject to

immigration control.

A person who is subject to immigration control will be entitled to claim Disability Living

Allowance if she/he is the family member of an EEA national.

1.7.6 Tax credits

Couples with children will be paid Child Tax Credit and Working TaxC at a couple rate even

where one member of the couple is a person subject to immigration control. Any child for

whom the person is responsible will be included in the claim and will receive payment even if

the child is a person subject to immigration control. Such payments are not regarded as

having had recourse to public funds

EXAMPLE

Alex is a British citizen who is working in Northern Ireland. His partner Ivanna is a

person subject to immigration control as she is Russian and her visa states that she

must not have recourse to public funds. Alex and Ivanna must make a joint claim

for tax credits as a couple and will be paid at a couple rate for Working Tax Credit

and Alex will be able to claim Child Tax Credit for Ivanna’s two children.

Couples without children will claim working tax credit as a couple but, where one member

of the couple is a person subject to immigration control, the couple element will not be paid.



EXAMPLE

Ibrahim is a British citizen who is working in Northern Ireland. His wife Fatima is a

person subject to immigration control as her two year spousal visa states that she

must not have recourse to public funds. Ibrahim and Fatima must make a joint

claim for tax credits but will not be paid the couple element as they have no

children. Fatima is pregnant. When her baby is born the couple’s award of tax

credits will be amended to include the couple element and they will be entitled to

Child Tax Credit.

1.7.7 Universal Credit (due to be introduced some time in 2014)

If a claimant’s partner is a person subject to immigration control and is not in one of the

exceptions set out at section 1.4, then the person making the claim will claim as a single

person, but the partner’s income and capital will be taken into account.

This is less favourable than the current position under tax credits.

Claimants may experience problems where a mixed status couple is being migrated onto

Universal Credit. As a general rule when tax credits claims are migrated to Universal Credit

there will be transitional payments ensuring that Universal Credit will be paid at a rate

equivalent to any previous tax credit award. It is unclear whether this will apply in

circumstances where one member of a couple is a person subject to immigration control.

1.8 Refugees and benefits

A refugee is not a person subject to immigration control for benefit purposes. Refugees are

entitled to claim benefits. However, a person who has applied for refugee status is known as

an asylum seeker and asylum seekers come within the ‘person subject to immigration

control’ rules until refugee status is granted.



1.8.1 Refugees and Income Support

A refugee can claim Income Support for up to nine months while studying if she/he:

attends a course for more than fifteen hours per week aimed at learning English for the

purpose of getting employment;

has been in Northern Ireland for not more than twelve months when the course begins.

1.8.2 Refugees and tax credits, Child Benefit and Guardian’s Allowance

A person who has been granted refugee status can claim tax credits, Child Benefit and

Guardian’s Allowance and have them backdated to the date of asylum application.

Tax credits must be claimed within one month and Child Benefit and Guardian’s Allowance

must be claimed within three months of receiving the letter from the Home Office granting

leave as a refugee.

The amount of tax credits will be reduced by the amount the person received from National

Asylum Support (NASS) for support and this may cancel out tax credit entitlement. However,

the claim should be made and potential entitlement explored.

NOTE: The amount of Child Benefit or Guardian’s Allowance is not reduced by the amount of

asylum support received.

EXAMPLE

Abdi is awarded refugee status on 9 October 2013. She has two children and makes

claims seven days later for Child Benefit and Child Tax Credit. Her Child Benefit and

Child Tax Credit are backdated to the date of her asylum claim but her Child Tax

Credit payment is reduced by the amount of NASS support which she received. In

contrast, her friend Amal who also received refugee status on 9 October 2013

claimed Child Benefit and Child Tax Credit four months later. Her Child Benefit is

backdated for three months and her Child Tax Credit is backdated for 31 days.



1.8.3 Fast track procedure for tax credit claims

Refugees who are making claims for Income-based Jobseeker’s Allowance or Income-related

Employment and Support Allowance or Income Support are now able to ask to make a fast

track claim for tax credits through the Jobs and Benefits Office. Under fast track claims,

HMRC aims to process claims and make payments in ten working days.

There is still a lack of awareness in local Jobs and Benefits Offices about the fast track

procedure. Contact the Law Centre for further information and guidance if necessary.

NOTE: When a person is granted refugee status, it is important that advisers arrange for

appropriate claims to benefits without delay. This is because NASS support will be

withdrawn after 28 days and it will take some time for claims for benefit to be made and

processed. Time is of the essence. Contact the Law Centre for advice and assistance where

difficulties arise.



2.0 EEA nationals and benefits

Many benefits and tax credits have residence and/or presence conditions. These rules vary

between different benefits. General information about who is an EEA national and who is

the family member of an EEA national is set out in the section on technical words and

phrases (see pages 10 to 14). There is also information in that section about EU residence

documents.

This section covers:

habitual residence and right to reside;

ordinary residence and right to reside;

contribution-based and employment benefits and residence.

Special rules currently apply restricting the right to reside of Croatian nationals until 1 July

2018. These rules may then be extended to 1 July 2020. These are set out at Appendix 1.

Similar restrictions applied to Bulgarian and Romanian nationals until 31 December 2013.

These are set out at Appendix 2. These rules are included in Appendix 2 as they may be

relevant in determining whether a person has satisfied rules for permanent residence or

retention of worker status.

If a person claiming benefit or her/his partner or any member of her/his household is not

an EEA national, then check Section 1 before looking at this section. This is important

because, if Section 1 of these notes applies and the person’s immigration status means

that she/he is not entitled to claim public funds, then being included in a claim for a social

security benefit or tax credit may lead to serious consequences, including deportation and

prosecution.



2.1 The habitual residence and right to reside test

Income-based Jobseeker’s Allowance

From 1 January 2014 a person Income-based Jobseeker’s Allowance must as a rule have

been residing in the common travel area for three months as a condition of entitlement to

benefit. In addition, Income-based Jobseeker’s Allowance claimants must satisfy the

habitual residence and right to reside rules set out below.

Income-based Jobseeker’s Allowance, Income-related Employment and

Support Allowance, Income Support, Housing Benefit, Pension Credit (and

Universal Credit which is due to be introduced some time in 2014)

Income-based Jobseeker’s Allowance, Income-related Employment and Support Allowance,

Income Support, Housing Benefit, Pension Credit (and Universal Credit which is due to be

introduced some time in 2014) require that a person must be habitually resident and have a

right to reside to be entitled to benefit.

Unless a person is in an exempt group, she/he must:

be habitually resident in fact in the Common Travel Area (the UK, Ireland, the Channel

Islands or the Isle of Man);

and have a right to reside in the Common Travel Area.

2.1.1 Exempt groups

A person will be exempt from the habitual residence test Income-based Jobseeker’s

Allowance, Income-related Employment and Support Allowance, Income Support, Housing

Benefit, Pension Credit (and Universal Credit which is due to be introduced some time in

2014) and will be treated as having a right to reside if she/he is:

an EEA national who is a worker or retains worker status;

EXAMPLE

Luis comes to Northern Ireland to take up an offer of employment at a local

computer company. He is entitled to claim Housing Benefit as soon as he arrives in



Northern Ireland as he is an EEA worker who is exempt from the habitual residence

and right to reside test.

an EEA national who is self-employed or retains self-employed status;

a family member of a person in either of the above two groups;

an EEA national or family member of an EEA national with a permanent right of residence

as a retired or permanently incapacitated worker or self-employed person;

a Croatian national working lawfully under worker authorization provisions;

a refugee;

a person with exceptional leave to enter or remain in UK granted outside the Immigration

Rules;

a person with humanitarian protection granted under the Immigration Rules;

a person deported, expelled or legally removed from another country to the UK who is

not a person subject to immigration control;

EXAMPLE

Abdullah is a dual British/ Syrian citizen. He is deported to the United Kingdom

from the United Arab Emirates. He is entitled to Income-based Jobseeker’s

Allowance straight away as he is exempt from the habitual residence and right to

reside test.

a person who left Zimbabwe to come to the UK after 28 February 2009 but before 18

March 2011 who has received assistance from the UK government to settle in the UK.

For Housing Benefit only – receives Income Support, Income-related Employment and

Support Allowance, Income-based Jobseeker’s Allowance or State Pension Credit

For Income-related Employment and Support Allowance only – is being transferred

from Income Support to Income-related Employment and Support Allowance which was

transitionally protected from the requirement to have a right to reside.

2.1.2 Habitual residence – the Factual Test

If not exempt, a person must show habitual residence in the Common Travel Area (the UK,

Ireland, the Channel Islands and the Isle of Man).



NOTE. Benefit authorities often make the mistake of disregarding habitual residence outside

the UK but within the Common Travel Area. Watch out for this as disputes may be easily

resolved where habitual residence within the Common Travel Area can be shown. Also the

decision maker must consider the question of whether the person was habitually resident

right up to the date of the decision rather than simply the date of claim.

There is no definition of habitual residence in legislation but there is a substantial amount of

case law on what is habitual residence.

The following principles have emerged from case law:

habitual residence is a question of fact to be decided on all the circumstances of the case;

a person must actually be resident in order to be habitually resident; it is not enough to

have an intention to become resident;

a person need not intend to reside permanently, but must have a settled intention to

reside in the Common Travel Area for the time being;

no particular period of actual residence is essential for establishing habitual residence,

however, in most cases a person must have actually been resident for an appreciable

period of time. There have been a significant number of appeals on the issue of what is

an appreciable period of time. What is an appreciable period is not set down in law and

needs to be considered in the individual facts of each claim. It would be unlawful for the

Department (DSD) to apply a blanket policy that a person must be resident for a specific

period of for example three months without further consideration of the facts, and such

a policy could be challenged by an application for judicial review;

the adjudicating authorities must look at the settledness of the person’s intention to

reside in the Common Travel Area and this is linked to the determination of the length of

the appreciable period of time. The stronger the person’s settled intention is to reside in

the Common Travel Area, the shorter the period of actual residence will be necessary.



2.1.3 Factors relevant to establishing habitual residence

The person must show evidence of her/his settled intention to reside in the Common Travel

Area, which can include consideration of the person’s reasons for coming and the viability of

the residence. The following factors may be relevant:

strength of family ties in the Common Travel Area and abroad;

any enquiries made about securing employment, education, training or accommodation;

whether the person has ended employment abroad or closed any benefit claims abroad;

whether the person sold her/his home or give up her/his accommodation;

whether the person closed or transferred any bank accounts;

steps taken to dispose of possessions or arrange for them to be transported to Northern

Ireland;

whether the person notified medical or school authorities (if she/he has children) of

her/his intention to come to live in Northern Ireland;

whether the person travelled on a one way or on a return plane ticket;

any other steps which may show the person intended to leave her/his original place of

residence and reside in Northern Ireland;

how the person planned to support her/himself if benefit is not paid. The viability of a

person’s residence without claiming benefits is one relevant factor although it is not an

additional requirement;

whether the person has arranged accommodation here;

whether the person has registered with a doctor or dentist;

whether the person has registered her/his children in a school;

whether the person has enrolled in any clubs or societies;

whether the person has opened a bank account in Northern Ireland.

EXAMPLE

Gary is a British citizen who returns to Northern Ireland to live after spending 40

years in Australia. He claims Income-based Jobseeker’s Allowance and Housing

Benefit as soon as he arrives in Northern Ireland and his claim is refused on the

grounds that he is not habitually resident in the UK and is regarded as a person



from abroad. The factors relevant in making this decision are that Gary has not

been resident for an appreciable period of time, has not arranged accommodation

and has a bank account still in Australia. Gary should be advised to make a further

claim for Income based Jobseeker’s Allowance once he has been resident for three

months. He can make further claims for Housing Benefit within the three month

period until it is accepted that he is habitually resident. Gary has a right to reside as

a British citizen so he will be entitled to benefit once he becomes habitually

resident.

2.1.4 Resuming habitual residence

The habitual residence test applies to UK residents including British citizens who are

returning to the UK after an absence abroad. All the facts of the person’s case will be

considered and if an absence from the UK was temporary then habitual residence will not

have been lost.

EXAMPLE

Hari was habitually resident in the UK and left in 2008 to do voluntary work in India

for three years. When he returned and claimed State Pension Credit his claim was

disallowed on habitual residence grounds. His appeal was allowed because it was

decided that his time in India did not end his habitual residence in the UK. In

making the decision, the facts that were found to be relevant were that he had kept

all his possessions in the UK, he did not have a right to reside in India, he made

regular visits to the UK and he had shown that he always intended to return to live

in the UK (if you want to read more about this, see case reference KS v SSWP 2010

UKUT 156 AAC).

2.1.5 EU law and resuming habitual residence

Where a person was habitually resident in the Common Travel Area and she/he moved to

live and work within the European Union, she/he will immediately be habitually resident on

arrival in the Common Travel Area. Such a person should not be required to be present for

an appreciable period of time to re-establish habitual residence.



2.1.6 Benefit entitlement where a person fails the habitual residence test

If a person fails the habitual residence test she/he will not receive Income-based Jobseeker’s

Allowance, Income-related Employment and Support Allowance, Income Support, Housing

Benefit and State Pension Credit. However, the person should continue to make further

claims for these benefits until it is accepted that she/he has in fact become habitually

resident. If the person is destitute, she/he may be entitled to assistance from social services

and should contact a community care adviser at the Law Centre for further advice.

2.1.7 Couples where one person is habitually resident

Where a person satisfies or is exempt from the habitual residence test, she/he may make a

claim for means tested benefits for her/himself but also for her/his partner. This general rule

is subject to exceptions for Income-based Jobseeker’s Allowance and Universal Credit which

are set out below.

2.1.7.1 Couples – Income based Jobseeker’s Allowance

For Income based Jobseeker’s Allowance in the case of a joint-claim couple, where one

person does not satisfy the habitual residence test, her/his partner who does satisfy the

habitual residence test, will be able to claim Income based Jobseeker’s Allowance and will be

paid at the couple rate without the need for a joint claim.

EXAMPLE

Gerard is a British citizen. His Spanish partner Penelope joins him and the couple

wants to claim Jobseeker’s Allowance. Penelope is not immediately habitually

resident although she has a right to reside as a jobseeker. Gerard will claim

Income-based Jobseeker’s Allowance for them both and will be paid at the couple

rate.



2.1.7.2 Couples – Universal Credit

For Universal Credit (to be introduced from 2014 through to 2017) the habitual residence

test applies to both partners making a joint claim. If one partner fails the habitual residence

test then the other must claim Universal Credit as a single person. The award will be paid at

the rate for a single person; however the non habitually resident partner’s income and

capital will be taken into account.

2.1.8 How to challenge a habitual residence decision

If a person fails the habitual residence test, she/he has a right to challenge the decision by an

application for revision or appeal. She/he should make a further claim for benefit pending

the outcome of the appeal. This is necessary because an appeal will only consider the facts

relating to the person’s habitual residence down to the date of the decision to disallow claim

for benefit.

A person should be advised to challenge subsequent refusals and to make further

subsequent fresh claims. Some local offices incorrectly advise people that it is either not

possible or not necessary to make a fresh claim where a challenge to a habitual residence

decision has been lodged. Such advice is incorrect and should be brought to the attention of

the Social Security Agency, for example by referring the matter to Law Centre (NI).

Ask for associated appeals to be listed together as this will permit the appeal tribunal to

decide when during the entire period of disallowance the person satisfied the habitual

residence rule. Eventually a claim will be accepted if this is the only reason leading to

disallowance. The upper limit of an appreciable period is usually three months.

2.1.9 Right to reside test

The right to reside test was introduced as part of the habitual residence test on 1 May 2004.

The test has proved to be controversial, particularly in respect of EEA nationals who have

been refused benefits on the grounds of right to reside when not economically active. Also,

special rules limit the right to reside of Croatian nationals until at least 30 June 2018 (see



Appendix 1). The European Commission is currently in a dispute with the UK regarding the

lawfulness of the right to reside test in relation to EEA nationals. Until this dispute is

resolved the Social Security Agency will continue to apply the rules as set out below. The

Law Centre welcomes referrals of cases on the issue of right to reside and can provide advice

and support to advisers pursuing right to reside appeals.

This is a complex issue that requires knowledge of immigration law, EU law and case law. It

can depend on a person’s individual but also family circumstances so that a person who had

a right to reside for benefit purposes may find that when her/his circumstances change

she/he no longer has a right to reside and needs to seek further advice.

Examples of where a person will have a right to reside include where she/he is:

a British citizen;

an Irish citizen;

a Commonwealth citizen with a right of abode;

a person with leave to enter or remain, for example indefinite leave, refugee leave.

The majority of people affected by the right to reside rule are EEA citizens or their family

members. The rest of the section on right to reside focuses on the rights to reside of EEA

nationals.

2.1.10 Transitional protection for claims pre-dating 30 April 2004

Where a person has been entitled to Income Support, Income-based Jobseeker’s Allowance,

State Pension Credit or Housing Benefit since 30 April 2004, rules on transitional protection

mean that she/he does not need to satisfy the right to reside rule under a continuing claim

for benefit. In certain circumstances transitional protection will continue to apply for

subsequent claims due to linking rules. For example, where a person with transitional

protection is migrated to Income-related Employment and Support Allowance from Income

Support on disability grounds, she/he will continue to be exempt from the right to reside

rule.



2.1.11 Excluded rights of residence

Some benefits specifically exclude particular categories of right to reside. These are set out

below.

2.1.11.1 Excluded rights of residence for Income-based Jobseeker’s Allowance (and

Universal Credit which is due to be introduced some time in 2014)

An EEA national with an initial three-month right of residence;

a family member of a person with a three-month initial right of residence;

the primary carer of a British citizen who is dependent on the person and would have to

leave the UK if the primary carer was required to leave. NOTE: This exclusion is

controversial and the Law Centre is seeking referral of such cases to challenge this rule.

EXAMPLE

Rani is a non EEA national came to the United Kingdom on a holiday visa and did

not return to Egypt. She was in a relationship with a British man and she has a

British son. When her relationship breaks down Rani seeks advice on claiming

benefits. She will not be entitled to Income-based Jobseeker’s Allowance, Income

Support, Income-related Employment and Support Allowance, Housing Benefit,

Child Benefit and Child Tax Credit as her derivative right to reside as the parent of a

British national is an ‘excluded right to reside’ for these benefits. This rule may be

challenged and the Law Centre welcomes referral of such cases.

2.1.11.2 Excluded rights of residence for Income Support, Income-related Employment and

Support Allowance, Pension Credit and Housing Benefit

An EEA national with an initial three month right of residence;

a family member of a person with a three month initial right of residence;

an EEA jobseeker;

a family member of an EEA jobseeker;



the primary carer of a British citizen who is dependent on the person and would have to

leave the UK if the primary carer was required to leave. NOTE: This exclusion is

controversial and the Law Centre is seeking referral of such cases to challenge this rule.

EXAMPLE

Angela is a German lone parent who comes to Northern Ireland to look for work.

After one month her savings run out and she is advised at the Jobs and Benefits

Office to claim Income Support as her son is aged one. Her claim is disallowed as

she does not have a right to reside as a jobseeker for Income Support. Angela will

be entitled to Jobseeker’s Allowance once she has established habitual residence.

She can appeal the decision that she does not have a right to reside for Income

Support and she should contact the Law Centre for further advice.

If a person’s right to reside is as an EEA jobseeker she/he will not satisfy the right to reside

test for any of the means tested benefits except Income-based Jobseeker’s Allowance. If a

person receives Income-based Jobseeker’s Allowance, she/he will currently satisfy the

habitual residence test for Housing Benefit. However, there are proposals to exclude EEA

jobseekers from Housing Benefit in the future.

2.1.12 EU law rights of residence

Under EU law, EEA nationals and their family members may have a right to reside under the

following categories:

initial three-month right of residence;

extended right of residence;

permanent right of residence;

derivative right of residence;

These categories are considered in more detail below.



2.1.12.1 Initial three-month right of residence - Income Support, Income-based Jobseeker’s

Allowance, Income-related Employment and Support Allowance, State Pension Credit or

Housing Benefit.

All EEA nationals including Croatian nationals have a right to enter the UK and have an initial

right of residence for three months. A person will have this right regardless of whether

she/he is looking for work but the right is subject to the condition that the person must not

become an unreasonable burden on the social assistance system of the UK. The initial three-

month right of residence will also apply to the family members of the EEA national.

If a person’s only right to reside in the UK is this initial three-month right of residence,

she/he will not be entitled to Income Support, Income-based Jobseeker’s Allowance, Income-

related Employment and Support Allowance, State Pension Credit or Housing Benefit.

However, if the person can assert another right to reside then she/he may be entitled to

these benefits during the initial three-month period.

NOTE: In contrast, the initial three-month right to reside will satisfy the ordinary residence

and right to reside test for Child Benefit and Child Tax Credit.

2.1.12.2 Extended right of residence

The Immigration (EEA) Regulations 2006 incorporate the provisions of the EU Residence

Directive 2004/38 into UK law. The Regulations provide for an extended right of residence

where the person comes within a category of ‘qualified person’ as defined in the Regulations.

Family members of qualified persons and of EEA nationals with a permanent right of

residence also have a right to reside. Special provisions limit the application of some of the

rights of residence set out below in respect of Croatian nationals until at least 30 June 2018.

A qualified person is a person who is an EEA national and who is in the UK as a:

jobseeker;

worker;

self-employed person;

person who retains the status of worker or self-employed person;



person who is self-sufficient;

student who is self-sufficient;

the family member of the above.

2.1.12.3 Jobseeker

This will apply if the person is looking for work and has a genuine chance of finding

employment. A person will generally be accepted as a jobseeker if she/he has claimed

Jobseeker’s Allowance or national insurance credits. From 1 Jan 2014, a right to reside as a

jobseeker will last for six months. However, a person with a right to reside as a jobseeker

will have to satisfy the three-month residence in the common travel area as well as the

factual habitual residence test in order to qualify for benefit. After six months such a person

must show compelling evidence that she/he is continuing to seek work and has a genuine

chance of finding work in order to continue having such a right to reside.

At the time of writing, a right to reside as a jobseeker will satisfy the right to reside

requirement for Income-based Jobseeker’s Allowance, which will passport a person to

Housing Benefit, and it will also satisfy the right to reside requirement for Universal Credit

(once it is introduced in Northern Ireland, some time in 2014). There are plans to exclude

EEA jobseekers from entitlement to Housing Benefit from later in 2014. If the person has

dependent children the status of jobseeker will satisfy the right to reside test for Child

Benefit and Child Tax Credit.

A right to reside as a jobseeker may not satisfy the right to reside requirement for Income

Support, Income-related Employment and Support Allowance, Pension Credit (or Housing

Benefit without a linked award of Jobseeker’s Allowance). Advisers should contact Law

Centre (NI) for further advice if claimants are refused benefit on this ground.

Croatian nationals are excluded from the right to reside as a jobseeker until 1 July 2018

unless exceptions apply (see Appendix 1).



NOTE: When Universal Credit is introduced in Northern Ireland, EEA nationals and their

family members who have a right to reside on the basis of being jobseekers will be subject to

all work-related requirements under conditionality rules of Universal Credit.

2.1.12.4 Worker

An EEA national who is a worker has a right to reside and is exempt from the habitual

residence test. To be a worker, a person must be in employment and the person’s work

must be genuine and effective rather than marginal and ancillary. Worker status continues

while the person is still under a contract of employment. A person will still be a worker while

on holiday, sick leave or maternity leave, including any unpaid maternity leave. This will

apply to Croatian nationals in authorized work.

Where there is any doubt as to whether a person is a worker all the facts of the case must be

considered, including:

length of employment – a person who worked for two weeks as a steward at Wimbledon

was found to have worker status;

number of hours worked – there is no minimum number of hours. An au pair working

thirteen hours per week has been found to be a worker. The Court of Justice of the EU

has found that five and a half hours per week might entitle a person to worker status;

remuneration – this may be in kind such as board and lodging, but voluntary work will

not lead to worker status. Work which is low paid and supplemented by benefits may

still lead to worker status;

pattern of work – the more regular work is, the more likely that worker status will have

been established;

agency work may lead to worker status;

working cash in hand may lead to worker status.

2.1.12.5 Self-employed person

A self-employed EEA national will have a right to reside under EU law and will be exempt

from the habitual residence test. Croatian nationals who are self-employed have the same

rights as other EEA nationals.



To be self-employed, a person must provide services in return for remuneration. The work

must be genuine and effective and not marginal and ancillary. A person counts as self-

employed while taking steps to set up a business such as arranging premises, distributing

flyers, ordering stock or arranging a licence. Likewise, a person may still count as self-

employed during periods where there is a lull in trade. This will depend on the facts of the

case, and relevant issues will include steps being taken to develop new business,

administration and networking. Registration with HMRC is necessary if self-employed,

although in some cases a person will be accepted as self-employed before she/he has

registered as such with HMRC.

It can be possible to retain self-employed status in some circumstances for example during

periods where a person is temporarily unable to work due to illness or accident. Unlike for

worker status, it is possible to retain self-employed status where a person is a Croatian

national during periods of restriction.

It may be possible to continue to be self-employed during a break due to pregnancy or

childbirth issues

EXAMPLE

Olga is Croatian and is a self-employed piano teacher. She has recently had a baby

and is too unwell to work. She will be entitled to Income-related Employment and

Support Allowance as she will continue to have a right to reside as a self-employed

worker during a temporary interruption in her pattern of work due to childbirth.

A formerly self-employed person will not retain worker status if she/he is involuntarily

unemployed from self-employment and registered as a jobseeker or if doing vocational

training. Advisers should contact the Law Centre for further advice if a client has been

affected by this rule. Where a person is affected by this rule she/he may be able to claim a

right to reside as a jobseeker. A Croatian national will not have a right to reside as a

jobseeker until at least 1 July 2018.



2.1.12.6 Retaining worker status

A person (other than a Croatian national requiring authorization) will retain worker status if

she/he:

is temporarily unable to work due to an illness or accident. The person will have to show

that the inability to work is temporary rather than permanent. It is not necessary that

the person has claimed Employment and Support Allowance or passed the work

capability assessment. The test relates to ability to do the work the person was doing or

was seeking.

EXAMPLE

Pietro is temporarily unable to work due to a viral infection. His Statutory Sick Pay

has expired but his job remains open for him to return to when he is fully

recovered. Pietro will have a right to reside for Employment and Support

Allowance while he remains temporarily unable to work. He will still have a right to

reside as a worker in these circumstances.

is involuntarily unemployed after having been employed in the UK and is registered as a

jobseeker with the Social Security Agency and she/he was employed for a year or more

in which case she/he will retain worker status for six months, and longer if she/he can

show compelling evidence of continuing to seek work and having a genuine chance of

getting employment; although if the person has worked for less than six months, worker

status will only be retained for six months during a period of involuntary unemployment;

or

is undertaking vocational training.

NOTE: Before arguing that a person has retained worker status, consider whether she/he

may still be a worker, for example on unpaid maternity or sick leave but still engaged under a

contract of employment.



NOTE: When Universal Credit is introduced, some time in 2014, a person with a right to

reside as a person retaining worker status while involuntarily unemployed and registered as

a jobseeker will not be exempt from the universal credit work related requirements even if

she/he would otherwise fall into an exempt group. Contact the Law Centre’s advice line

where this arises for further advice.

2.1.12.7 Worker status and pregnancy and childbirth

Advisers should consider carefully whether a person remains a worker or self-employed

person or retains worker or self-employed status during pregnancy and periods after

childbirth.

Worker status will be retained where

the person is still in employment but in a period of maternity leave including unpaid .

the person is temporarily incapable for work due to pregnancy or post pregnancy issues

NOTE: It is unclear whether a person will retain worker status if she reasonably gives up

work due to pregnancy or childbirth. this issue has been referred for guidance to the

European Court of Justice by the British Supreme Court in the case of Jessy Saint Prix v SSWP

2012 (EC reference C-507/12.)

2.1.12.8 Self-sufficient person

In order to have a right to reside under EU law as a self-sufficient person a person must:

have sufficient resources for her/himself and any family members so that they do not

become an unreasonable burden on the UK social assistance system. This is interpreted

as having an income in excess of a person’s applicable amount for means- tested benefits

plus housing costs. However, even if a person’s income is less than this, it will be

necessary to look at her/his personal facts, for example whether there is a temporary

reduction in income and whether she/he is provided with free accommodation by family

or friends;



have comprehensive sickness insurance. This may be satisfied by a person who has

private health insurance or if the UK can be reimbursed by another state for the cost of

NHS services. This will usually apply where EU Regulation 883/2004 on the co-ordination

of social security systems applies and another member state continues to be the

competent state. Advisers should contact Law Centre (NI) for further advice where

claimants are affected by this rule as arguments can be made that the right to access NHS

treatment under EU law may satisfy this requirement.

2.1.12.9 Student

Special rules apply to Croatian nationals who may have a right to reside as a student.

Otherwise an EEA national who is a student will have a right to reside on that basis where

she/he is:

is enrolled as a student at a government accredited college;

provides an assurance at the outset of sufficient funds for her/himself and family not to

become a burden on UK social assistance during period of study; and

has comprehensive sickness insurance.

2.1.12.10 Permanent right of residence

The right to permanent residence was introduced under EU law on 30 April 2006, however

periods of lawful residence in the UK prior to that date can be considered when determining

whether a person has met the requirements for permanent residence. The Immigration

(EEA) Regulations 2006 expressly exclude consideration of time spent on the basis of having

a derived right to reside (see section on derivative right of residence below) when calculating

required periods of residence. Law Centre NI welcomes referrals of cases where this issue

arises.

Once acquired, permanent residence will only be lost by absence from the UK for a period of

more than two consecutive years.

A person has a permanent right of residence in the UK under EU law if she/he has resided

legally in the UK for a continuous period of five years as a:



worker;

self-employed person;

person retaining worker/ self-employed status;

self-sufficient person;

student; or

family member of such a person.

Periods of jobseeking mixed with periods of work will normally count towards the period of

five years.

2.1.12.11 Family members and permanent residence

A family member of a person with a permanent right of residence has a right to reside for as

long as she remains a family member. After five years of being a family member of a person

with a permanent right of residence the family member will have permanent residence

herself/himself. Periods of residence as a family member may be added to other periods as

a qualified person to satisfy the five year requirement for permanent residence.

2.1.12.12 Permanent residence and exceptions to the five year requirement

A person has a permanent right of residence and is exempt from the habitual residence test

if she/he is a:

worker or self-employed person who ceases activity and:

has reached retirement age or taken early retirement and either worked in the UK for

the preceding year and lived in the UK for more than three years continuously or is a

person who has a spouse or civil partner who is a UK national;

or

has stopped working in UK due to a permanent incapacity and has a spouse or civil

partner who is a UK national, or resided continuously in the UK for more than two

years or the incapacity was because of an accident at work or occupational disease

that led to benefit entitlement;

EXAMPLE

Pablo is a Spanish EEA national. He took a job in the UK but in his first week at

work was run over by a forklift lorry and he is now entitled to Industrial



Disablement Benefit due to the permanent disability he incurred. He will be

entitled to a permanent right of residence and will meet the habitual residence and

right to reside rules for Income Support, Income-related Employment and Support

Allowance, Pension Credit and Housing Benefit.

or

has worked and resided in the UK for three years and then worked in another

member state and returned to the UK at least once a week; or

the family member of a worker or self-employed person in any of the above groups (see

2.1.12.12, first bullet point) and lives with that person in the UK;

EXAMPLE

Pablo’s daughter is aged eighteen and has just had a baby. She will have a right to

reside for Income Support or Income-related Employment and Support Allowance

as the family member of a person with a right to reside until she is 21. She will then

have to demonstrate her own right to reside unless she can show that she remains

dependent on her father, and she may have to claim Jobseeker’s Allowance for

herself.

the family member of a worker or self-employed person who died while working who

had not attained permanent residence; and:

she/he had lived in the UK for two years; or

the death resulted from an accident at work or occupational disease; or

she/he lost UK nationality as a result of the marriage.

2.1.12.13 Family members and right to reside – family breakdown

Where family breakdown occurs, careful consideration needs to be given to the right to

reside status of the family members of the person who had a right to reside under European

law, who is referred to as the qualified person.

This commonly arises where a person has to make a claim to benefits as she/he is no longer

being maintained by the former partner who has a right to reside. Advisers should carefully

consider the rules about right to reside in case of family breakdown set out below (see

2.1.12.14 to 2.1.12.16). The rules are complicated and in some cases EU law rights under EU

Directive 2004/38 are more generous than under the Immigration (EEA) Regulations 2006.



The Law Centre welcomes referrals of cases where such issues arise. Advisers should contact

the Law Centre’s advice line directly.

2.1.12.14 Family members and right to reside – death of qualified person

Where a person is the family member of an EEA national who was a qualified person or a

person with permanent residence and that EEA national has died, she/he will have a right to

reside in the UK if she/he is an EEA national. However, she/he will have to satisfy rules on

being a qualified person to obtain permanent residence.

If the family member is a non EEA national then she/he will have a right to reside after the

qualified person dies if she/he:

resided in UK with a right to reside for at least one year before that person died; and

would qualify as a worker or self-employed or self-sufficient person if she/he was an EEA

national; or

is she/he is the child/ grandchild of the qualified person/spouse/civil partner and was in

education at the time the person died and remains in education; or

is the parent with custody of a child in education (see above bullet point).

2.1.12.15 Family members and right to reside – qualified person leaves UK

A family member may retain a right to reside where the qualified person or person with

permanent residence leaves the UK if she/he is an EEA national.

If the abandoned family member is a non EEA national she/he will have a right to reside if:

she/he is the a grand/child of the qualified person (or her/his spouse or civil partner) and

was in education immediately before that person left the UK and remains in education;

or

she/he is the parent with custody of a child who was in education immediately before

the qualified person left the UK and the child remains in education.



EXAMPLE

Aneta is an EEA Hungarian national. She has been residing in Northern Ireland for

two years with her husband who was lawfully working and their six children. Her

husband has left her and she believes he has left the country. If she has a child

under seven, she will be able to claim means-tested benefits. Otherwise, she may

have a right to reside for Income-based Jobseeker’s Allowance or Income-related

Employment and Support Allowance.

2.1.14.16 Family members and right to reside – breakdown of marriage or civil partnership

A spouse/civil partner of a qualified person will continue to be treated as that person’s family

member until the date of any divorce/legal termination.

EXAMPLE

Dorothy is the Canadian wife of an Irish national who is working in Northern

Ireland. She separates from her husband two months after she arrives in Northern

Ireland. Her husband is a very violent man and she had to seek refuge with

Women’s Aid. She is 63 and will have a right to reside for State Pension Credit and

Housing Benefit as she remains the family member of an EEA worker until the date

of any divorce.

After divorce/legal termination, a former spouse/civil partner may continue to have a right to

reside:

if she/he is an EEA national; or

if not an EEA national, if she/he was residing in UK at the date of divorce/termination

and:

the marriage/ civil partnership had lasted at least three years with both parties

living in the UK for at least one of those years; or

she/he has custody of a qualified person’s child; or

she/he has right of access to the qualified person’s child which a court has

directed must take place in the UK; or

her/his right of residence in the UK is justified by particularly difficult

circumstances such as domestic violence during the relationship.



EXAMPLE

Dorothy (see example above) is now divorced. She will have a right to reside as her

marriage ended due to domestic violence. She will be able to claim State Pension

Credit and Housing Benefit.

Before such a person will obtain permanent residence, she/he will have to satisfy the rules

for permanent residence.

2.1.12.17 Family members who retain a right of residence - Permanent residence

Where a person has a right to reside on the basis of retaining right to reside in the above

three groups (see 2.1.12.14 to 2.1.12.16), it will not be possible to obtain permanent

residence status unless the person is a worker, self-employed, self-sufficient or the family

member of such a person.

2.1.12.18 Derivative right of residence

In the limited circumstances that are set out below (see 2.1.12.19 to 2.1.12.21), it will be

possible for a person to have a right to reside which is based on another person’s right to

reside but is not simply through being a family member. This is a derivative right to reside.

Importantly, the Immigration (EEA) Regulations 2006 state that residence in the UK as a

result of a derivative right to reside will not count towards residence for permanent right of

residence. Law Centre (NI) welcomes referrals of cases where this issue arises.

2.1.12.19 Child/primary carer of a child of a former worker if the child is in education.

This can apply to Bulgarian, Romanian and Croatian nationals as well as non EEA nationals.

It will apply where:

a child is a child of an EEA national who was a worker in the UK; and

the child is in the UK and is in education; and



the person is the primary carer of such a child; and

the child would be unable to continue her/his education if the primary carer was

required to leave the UK.

EXAMPLE

Barbara is an EEA Polish national. Her marriage has broken down and she has

become very depressed. She has a child in secondary school. Her husband worked

briefly in registered work in 2010 but then struggled to find work, became

depressed and left the household. Barbara will have a right to reside for Income-

related Employment and Support Allowance and Housing Benefit as the primary

carer of a child of a former worker who is in education. Barbara should consider

claiming Jobseeker’s Allowance in the future as the right to reside as a primary

carer will not count towards the required period for permanent residence.

2.1.12.20 Primary carer of an EEA national child who is self sufficient

This can apply to Croatian nationals as well as non EEA nationals.


the EEA national is under eighteen; and

is residing in the UK as a self-sufficient person; and

would be unable to remain in the UK if the primary carer was required to leave.

2.1.12.21 Primary carer of a British child

This can apply to Croatian as well as non EEA nationals.


the British citizen is under eighteen and residing in the UK; and

the British citizen would be unable to remain in the UK if the primary carer had to leave

the UK.



2.1.12.22 Other rights of residence under EU law

If a person does not come within one of the categories set out above, it may be possible to

argue in exceptional circumstances for a right to reside based on her/his EU citizenship under

Article 21 of the Treaty on the Functioning of the EU. This will only apply to EU nationals, but

will include Croatian nationals.

Advisers should contact the Law Centre’s advice line where EU nationals have been refused

benefits on grounds of right to reside.

2.1.13 What to do if a person is found not to be ‘a person with a right to

reside’

If a person is refused benefit on grounds of right to reside, seek specialist advice as this is an

area of law where case law is relevant and constantly evolving. The Law Centre advice line

can provide such specialist advice.

Advisers will need to consider whether, on further exploration of the facts of the case, the

person can be brought within one of the groups regarded as having a right to reside. There is

further information above (see 2.1.12) on specific key categories. Seek further advice if a

person cannot be brought within these categories as it may be possible to make arguments

for a right to reside outside these categories.

If a person is ineligible for benefit as a result of not having a right to reside, contact the Law

Centre for advice on possible alternative support from social services pending appeal. The

Law Centre is looking for cases to challenge the lack of interim payments of benefits for EEA

nationals pending right to reside appeals.



2.2 Ordinary residence and right to reside test - Child Benefit and

Child Tax Credit

An Ordinary residence and Right to Reside test applies to:

Child Benefit

Child Tax Credit

The rules set out in relation to right to reside above will apply to Child Benefit and to Child

Tax Credit. However, a social security commissioner has decided that in the case of EEA

nationals the ordinary residence and right to reside rule for Child Benefit is unlawful direct

discrimination under EU law. This case is currently being appealed to the Court of Appeal in

Northern Ireland. Advisers should contact the Law Centre’s advice line where an EEA

national is refused Child Benefit or Child Tax Credit on ordinary residence and right to reside

grounds.

Ordinary residence is not defined in legislation. Ordinary residence tends to be much less

problematic in practice than the habitual residence requirement which is covered at section

2.1. A person will generally be regarded as ordinarily resident if she/he has a home in

Northern Ireland and lives there, whether it is for a short or long period.

2.2.1 Initial three month right of residence – child benefit and child tax credit

The initial three month right of residence will satisfy the right to reside test for child benefit

and child tax credit. This will also apply to Croatian nationals. However once the initial three

month period ends the person’s entitlement to Child Benefit and Child Tax Credit will end

unless she/he can come within one of the other categories of right to reside set out at

section 3.1.12.

EXAMPLE

Bogdan is a Croatian EEA national. He recently arrived in Northern Ireland with his

wife and child and intends to look for authorized work. Bogdan will be able to

claim Child Benefit and Child Tax Credit during the initial three-month period of his



residence. After that date he will have to establish a right to reside on some other

ground for example as a self-employed person.

2.3 Ordinary residence and past presence rules: Attendance

Allowance, Disability Living Allowance, Carer’s Allowance

At the time of writing, these benefits require that a person:

is present in Northern Ireland; and

has been present in Northern Ireland for 26 weeks out of the 52 weeks prior to making

the claim; and

is ordinarily resident in Northern Ireland; and

that the UK is the competent state for the payment of sickness benefits to the person

under EU law.

In some cases, it is possible to rely on EU law to export these benefits to another EEA

member state and also to use periods of residence in another member state to satisfy these

residence rules.

There are plans to change the residence rules for these benefits at some time in 2014 to

require that a person:

is present in Northern Ireland;

has been present for 104 out of the 156 weeks prior to making the claim; and

is habitually resident in the common travel area.

Similar rules will apply to Personal Independence Payment, a benefit which will replace

Disability Living Allowance for working age claimants some time in 2014, as part of welfare

reform.



2.4 Contribution-based benefits and employment related benefits

and residence

Contributory benefits such as Contribution-based Jobseeker’s Allowance, Contribution-based

Employment and Support Allowance and State Retirement Pension (except category D) do

not have residence conditions. Likewise, employment related benefits such as Maternity

Allowance and Industrial Injuries Benefits do not have residence conditions. However, these

benefits generally require presence in Northern Ireland and may be affected if a person goes

abroad. There are no residence or presence conditions for Statutory Sick Pay, Statutory

Maternity Pay, Statutory Paternity Pay or Statutory Adoption Pay.



3.0 European Union regulation on co-ordination of

social security systems

3.1 Introduction

European social security rules aim to ensure that EEA nationals and their family members

who move between EEA states exercising EU Treaty rights do not lose out on benefit

entitlement. The main EU social security rules are set out in EC Regulation 883/2004, which

co-ordinates social security systems in the EU.

Member states decide the benefits available in their own state and the conditions of

entitlement to them. Rules under EC Regulation 883/2004 allow a person moving between

EEA states to export certain benefits, to rely on tax and contributions paid in other member

states to satisfy contribution conditions, for example for Contribution-based Employment

and Support Allowance and also to rely on periods of residence in other EEA states to satisfy

past presence conditions.

Regulation 883/2004 applies without restriction to Croatian nationals.

3.2 Who is covered by Regulation 883/2004? Personal scope

To be covered by Regulation 883/2004, a person must be within the personal scope of the

Regulation.

This covers a person who is subject to the legislation of one or more member states and who

is:

an EEA national; or

a refugee; or

a stateless person; or

a family member or a widow/er, surviving civil partner of one of the above.



This means that not only employees, self-employed persons, civil servants, students and

pensioners but also non-active persons are protected by Regulation 883/2004.

3.3 What is covered by Regulation 883/2004? Material scope

Under the Regulation, benefits are divided into three types depending on conditions of

eligibility:

social security benefits;

special non-contributory benefits;

social and medical assistance.

3.4 Social security benefits under EC Regulation 883/2004

Social security benefits have the most rights and tend to be exportable. These are generally

contribution-based benefits. Special non-contributory benefits are paid in the country of

residence.

Social security benefits are categorized into groups relating to the risk that they are designed

to cover. These are:

sickness;

maternity;

invalidity;

old age;

pre-retirement;

survivors;

accidents at work and occupational diseases;

unemployment;

family benefits.



Special non-contributory benefits

These cannot be exported. They are benefits that are not based on contributions and must

be listed by the UK as being special non-contributory benefits. At present, in the UK these

are:

Disability Living Allowance mobility component (however, the care component of

Disability Living Allowance is treated differently and can be exported);

Income-related Employment and Support Allowance;


State Pension Credit.

It is expected that the mobility component of Personal Independence Payment will also be

listed as a special non-contributory benefit once that benefit is introduced in Northern

Ireland.

3.5 Competent state rules

As a general rule, a person will be subject to the legislation of a single member state only.

This will be the person’s competent state.

The competent state is the state in which the person:

is employed or self-employed; or

resident and from which she/he receives an unemployment benefit; or

a civil servant; or

a conscripted member of armed forces or person doing compulsory civilian service.

If a person works in two or more member states:

the member state of residence is the competent state if the person pursues a substantial

part of activities there;

if a person’s employer’s business is in one member state and she/he is sent to work in

another member state for up to 24 months, the first member state remains the

competent state;



if a person is self-employed in one member state and goes abroad to provide similar

services for up to 24 months, the first state will remain the competent state.

If none of the above apply, the competent state will be the one in which the person is

resident. Residence in Regulation 883/2004 means habitual residence. However, it has its

own EU law interpretation and application and will involve consideration of the person’s

centre of interest.

If more than one state may be the member state, the co-ordination rules provide that they

must come to an agreement on the issue taking account all of the person’s circumstances,

including:

the nature of activity pursued including location, stability and duration;

family status and ties;

unpaid activity including voluntary work;

in the case of students, source of income;

housing situation;

the member state in which the person is deemed to reside for tax purposes;

the person’s intentions.

When will the UK remain the competent state?

If the UK is the competent state for a person because she/he last worked in the UK or is

resident in the UK, the UK will remain the competent state until the person:

starts work in another EEA member state;

receives a pension from another member state and requests that UK cease to be

competent state;

in some cases, moves to another EEA member state and becomes resident there.

In general, if a person is entitled to a UK social security benefit when she/he moves to

another EEA state, the UK remains the competent state for paying benefit until the person

becomes employed or self-employed in the other member state or, in some circumstances,

starts receiving benefit there.



3.6 Equal treatment

Equal treatment is a fundamental principle of EU law. This prohibits direct discrimination as

well as indirect discrimination where the indirect discrimination cannot be justified. The

European Commission is currently in a dispute with the UK as to whether the right to reside

rule amounts to unlawful discrimination in breach of the principle of equal treatment.

If a person is covered by Regulation 883/2004, she/he is entitled to the same benefits under

the legislation of the competent state as a national of that state.

The competent state must provide equal treatment of benefits, income and circumstances,

so that equivalent benefits should lead to equal entitlement for example to a disability

premium.

3.7 Aggregation

This is a key principle of co-ordination rules.

It means that a person is entitled to add together periods of national insurance, residence,

employment or self-employment in other member states to satisfy rules on entitlement. For

example a person seeking to claim Contribution-based Employment and Support Allowance

can rely on contributions paid in other member states to satisfy the contribution conditions.

The principle is that a person should not lose out because she/he has moved within the EEA.

EXAMPLE

Marek is an EEA national. In 2012 he moved from Slovakia to work in Northern

Ireland. He was involved in an accident and has not been able to work since March

2013. Marek is entitled to Contribution based Employment and Support Allowance



as aggregation rules mean that he is able to rely on contributions paid while

working in Slovakia in the tax years ending April 2012 and April 2011.

3.8 Apportionment

This means that although the benefit is paid by the competent state, sometimes all the

states in which the person has worked will contribute to the payment of the benefit based

on the proportion of the person’s working life actually worked there.

3.9 Exporting benefits under EC Regulation 883/2004

3.9.1 Benefits exportable on an indefinite basis

The following benefits are fully exportable on an indefinite basis:

invalidity benefits:

long term Incapacity Benefit;

Severe Disablement Allowance;

Contribution-based Employment and Support Allowance after assessment phase and

arguably Contribution-based and Income-related Employment and Support Allowance

during assessment phase;

additional pension;

for those in receipt, prior to 1 June 1992, of Attendance Allowance, Disability Living

Allowance care and mobility and Carer’s Allowance;

old age benefits:

Graduated Retirement Benefit;

Winter Fuel Payment;

age additions and increments to pensions;

survivors cash benefits:

bereavement benefits;

pensions for accidents or occupational diseases:

Industrial Injuries Disablement Benefit;

Reduced Earnings Allowance;



Constant Attendance Allowance;

Exceptionally Severe Disablement Allowance.

3.9.2 Benefits exportable for a limited period or subject to restrictions

The following benefits can be exported for a limited period or are subject to restrictions:

unemployment benefits (see 3.9.2.1):

Contribution-based Jobseeker’s Allowance – but it is arguable that Income-based

Jobseeker’s Allowance should also be covered;

sickness, maternity and paternity benefits (see 3.9.2.2):

Attendance Allowance;


Disability Living Allowance care component;

Personal Independence Payment daily living component;

Statutory Sick Pay;

Contribution-based Employment and Support Allowance assessment phase;

Maternity Allowance;

Statutory Maternity Pay;

Statutory Paternity Pay;

family benefits (see 3.9.2.3 and 3.9.2.4):

Child Benefit;

Child Tax Credit;

Guardian’s Allowance;

child dependants additions in other benefits.

3.9.2.1 Exporting Contribution-based Jobseeker’s Allowance under EU co-ordination rules

If the UK is a person’s competent state, she/he can be paid Contribution-based Jobseeker’s

Allowance for up to three months if:

she/he satisfied the Contribution-based Jobseeker’s Allowance rules for at least four

weeks before she/he left the UK unless authorized by the Department to go abroad

before having claimed for four weeks;



she/he has registered as a person seeking work in the EEA state that she/he goes to

within seven days and complies with its procedures.

Under the co-ordination rules, other nationals covered will also be able to continue to claim

unemployment benefits from their competent state for up to three months after registering

as a person seeking work in the UK.

EXAMPLE

After she was made redundant in the economic downturn, Loreta claimed an

unemployment benefit in the Republic of Ireland. She notified the unemployment

office of her intention to move to Belfast to seek work. She registered with the

Jobs and Benefits Office in Belfast within seven days of her arrival. Loreta will

continue to receive unemployment benefits for at least three months from the

Republic of Ireland.

NOTE: The UK has classified Income based Jobseeker’s Allowance as a special non

contributory benefit which means that it cannot be exported. This restriction may be subject

to a legal challenge. Advisers should contact the Law Centre’s advice line where this arises.

3.9.2.2 Exporting Disability Living Allowance, Attendance Allowance or Carer’s Allowance

under the co-ordination rules

In C299/05, the Court of Justice of the EU decided that the care component of Disability

Living Allowance could be exported within the EU where the UK remained the person’s

competent state.

In case C537/09, the Court of Justice of the EU decided that the mobility component of

Disability Living Allowance is not covered by the co-ordination Regulation and cannot be

exported out of the UK.

A person will be able to export the care component of Disability Living Allowance,

Attendance Allowance or Carer’s Allowance where the UK remains her/his competent state.

This will generally be satisfied where the person is also exporting a contribution-based



benefit such as State Retirement Pension or Contribution-based Employment and Support

Allowance. See section 3.5 for rules on competent state.

EXAMPLE

Susan receives Contribution-based Employment and Support Allowance, Industrial

Disablement Benefit and Disability Living Allowance higher rate mobility

component and highest rate care component from the UK. She decides to move to

the Republic of Ireland with her civil partner who has taken up employment there.

Susan will be able to continue to receive contribution-based Employment and

Support Allowance, Industrial Disablement Benefit and the care component of

Disability Living Allowance when she moves to the Republic of Ireland but she will

no longer receive the mobility component of Disability Living Allowance.

3.9.2.3 Exporting family benefits

Child Benefit;

Child Tax Credit;

Guardian’s Allowance;

child dependants additions in other benefits.

Family benefits can be claimed for family members who are living in another EEA state, for

example an EU worker is able to claim Child Benefit for dependent children who live in

another EEA state.

EXAMPLE

Iveta and Marius are EEA nationals. They are self-employed in Northern Ireland.

Their four children reside in Latvia with their grandmother as they wish to complete

their education in Latvia. The couple is entitled to claim Child Benefit and Child Tax

Credit for the children who reside in Latvia.

Also family benefits can be exported. If an EEA national is entitled to Child Benefit and

moves within the EU to work, she/he will be able to continue to claim Child Benefit and Child

Tax Credit from the UK.



3.9.2.4 Entitlement to family benefits in more than one state

Special rules govern the payment of benefits where there would be entitlement in more than

one member state. If a person is entitled to family benefits under the legislation of more

than one state then the benefit will be paid by the priority state as determined by Regulation

883/2004 and may be topped up if necessary by the state that pays the higher family benefit.

3.10 Overlapping benefit rules

It is a general principle that a person cannot use insurance for the one period to gain

entitlement to benefit in more than one member state. This principle applies with

aggregation and apportionment.

However, member states are not allowed to apply provisions preventing the overlapping of

their own benefits with those of other member states if it would have reduced what the

person would have received from her/his years of contributions in the first member state

alone. So, for example, a person may receive retirement pensions from the UK and another

member state based upon her/his contributions paid in that state.



Further information

Useful links

Law Centre (NI) Encyclopedia of Rights, information on benefits and tax credits, immigration

and family relationships, employment rights, and rights in community care:

www.lawcentreni.org/EoR

NI Direct, the official government website for Northern Ireland: http://www.nidirect.gov.uk/

Belfast Migrant Centre / Northern Ireland Council for Ethnic Minorities: http://nicem.org.uk/

Northern Ireland Community of Refugees and Asylum Seekers:

http://www.nicras.btck.co.uk/

For a list of migrant support groups in Northern Ireland and of relevant government

organisations: http://www.migrationni.org/support-organisations

Further reading

Welfare Benefits and Tax Credits Handbook 2013/2014, Child Poverty Action Group, 94

White Lion, Street, London N1 9PF

Social Security Legislation 2013/2014, Volumes I and III published by Sweet and Maxwell of

100 Avenue Road, London NW3 3PF

Your Rights in Northern Ireland – a guide for migrant workers, 3rd edition. Published by Law

Centre (NI) and Northern Ireland Human Rights Commission with support from OFMDFM.

Available on www.lawcentreni.org/publications/migrant-workers.html

Free Movement of Persons in the European Union, 2nd edition. Published by Thomson, Sweet

and Maxwell 2012

http://www.lawcentreni.org/EoR

http://www.nidirect.gov.uk/

http://nicem.org.uk/

http://www.nicras.btck.co.uk/

http://www.migrationni.org/support-organisations

http://www.lawcentreni.org/publications/migrant-workers.html



Appendix 1

Rules affecting Croatian nationals

Croatia joined the EU on 1 July 2013.

Special rules restrict the access of Croatian nationals to the labour market in the UK until 30

June 2018. These rules may be extended up to two years but must end before 30 June 2020.

Current restrictions on residence rights of Croatian nationals

A Croatian national subject to worker authorization has limited residence rights. She/he:

will not have the right to reside as a jobseeker;

will only have worker status if she/he is a Croatian national requiring authorization,

where she/he has a worker authorization document and is working in accordance with it;

will not retain worker status while still a person covered by the restrictions.

Croatian nationals who are not subject to the worker authorization rules

The rules restricting the access of Croatian nationals to the labour market of the UK begin on

1 July 2013 and will end on 30 June 2018. However, these restrictions may be extended to

30 June 2020. A person will not be subject to worker authorization rules if she/he comes

within the following categories. She/he:

has (or had on 30 June 2013) leave to enter or remain with no restriction on

employment;

was legally working in the UK for twelve months without breaks of more than 30 days up

to 30 June 2013;

has legally worked for twelve months beginning before or after 30 June 2013 without

breaks of more than 30 days;

is a posted worker, a member/ family member of a diplomatic mission;

has dual nationality with the UK or another (non A2) EEA member state;

is the spouse/ civil partner of a UK national or person settled in UK;



is the spouse/civil partner or child under 18 of a person with leave to enter/remain in UK

that allows employment;

has a permanent right of residence;

is a student with a registration certificate including a statement that she/he shall not

work for more than 20 hours per week unless she/he is on a course of vocational training

and is working as part of that training or is working during vacation;

is the family member of an EEA national who has a right to reside, except where the EEA

national is an A2 or Croatian national subject to worker authorization;

is the family member of an A2 national subject to worker authorization who has a right to

reside as a worker, student, self-employed person or self-sufficient person;

is a highly skilled person and holds an EEA registration certificate confirming

unconditional access to the UK labour market.

Croatian nationals and lawful work

Croatian nationals have a right to be self-employed without any special rules applying.

Where a Croatian national wishes to take a job, check whether she/he will come within one

of the groups above who are not covered by the restrictions, for example where she/he has

completed twelve months lawful work or is the family member of an EEA national with a

right to reside.

A Croatian national who is a student and has an EEA registration certificate that states

he/she may work in the UK for not more than 20 hours per week will not be subject to

worker authorization rules while working within those limits. Also such a person will have a

right to work more than 20 hours per week during vacation periods and also during term

time if the course is a vocational one and the hours worked are in the course of study. A

Croatian national who ceases to be such a student will not be a worker requiring

authorization during a run-on period of four months.

If the person is covered by the restrictions she/he:

will not have a right to reside as a jobseeker for benefit purposes;



will not retain worker status where employment ends while she/he is still covered by the

restrictions;

will only be able to work legally if she/he has a worker authorization document and is

working in accordance with it.

If the Croatian national is still under a contract of employment, for example during periods of

sick leave or maternity leave (including unpaid leave), she/he may still be a worker.



Appendix 2

Rules that affected nationals of Bulgaria and Romania (A2 states)

until December 2013

Bulgaria and Romania joined the EU on 1 January 2007. Special rules applied restricting the

access of Bulgarians and Romanians to the labour market in the UK until 31 December 2013

when they came to an end. From 1 January 2014, Bulgarians and Romanians have full EU

rights.

The restrictions that applied are set out below as they may be relevant to determining

whether a person from Bulgaria or Romania had a lawful right of residence before 31

December 2013 and this will be relevant to entitlement to permanent residence status.

Restrictions on residence rights of Bulgarians and Romanians up to 31 December 2013

A Bulgarian or Romanian national subject to worker authorization, had limited residence

rights. She/he:

did not have the right to reside as a jobseeker;

only had worker status if she/he was a Bulgarian or Romanian citizen requiring

authorization, where she/he had a worker authorization document and was working in

accordance with it;

did not retain worker status while still a person covered by the restrictions.

Bulgarians and Romanians who were not subject to the worker authorization rules

The rules restricting the access of Bulgarian and Romanian nationals to the labour market

ended on 31 December 2013. A person was not subject to worker authorization rules if

she/he came within the following categories. She/he:

had (or had on 31 December 2006) leave to enter or remain with no restriction on

employment;



was legally working in the UK for twelve months without breaks of more than 30 days up

to 31 December 2006;

had legally worked for twelve months beginning before or after 31 December 2006

without breaks of more than 30 days in total;

was a posted worker, a member/ family member of a diplomatic mission;

had dual nationality with the UK or another EEA member state;

was the spouse/ civil partner of a UK national or person settled in UK;

was the spouse/civil partner or child under eighteen of a person with leave to

enter/remain in UK that allowed employment;

had a permanent right of residence;

was a student with a registration certificate including a statement that she/he would not

work for more than 20 hours per week;

was the family member of an EEA national who had a right to reside, except where the

EEA national was a Bulgarian or Romanian national subject to worker authorization;

was the family member of a Bulgarian or Romanian national subject to worker

authorization who had a right to reside as a worker, student, self-employed person or

self-sufficient person;

was a highly skilled person. This applied where the person satisfied Immigration Rules

that applied on 1 January 2007 for entering the UK on that basis and the person had been

awarded a qualification at degree level or higher in the UK and within twelve months of

this had applied for a registration certificate confirming unconditional access to the

labour market.

Bulgarian and Romanian nationals and lawful work prior to 1 Jan 2014

Prior to 1 January 2014, Bulgarian and Romanian nationals had a right to be self-employed

without any special rules applying.

A Bulgarian or Romanian national who was a student and had an EEA registration certificate

that stated she/he may work in the UK for not more than 20 hours per week was not subject

to worker authorization rules while working within those limits. Also such a person had a

right to work more than 20 hours per week during vacation periods and also during term

time if the course was a vocational one and the hours worked were in the course of study.



An A2 national who ceased to be such a student was not a worker requiring authorization

during a run-on period of four months.

If the person was covered by the restrictions, she/he:

did not have a right to reside as a jobseeker for benefit purposes;

did not retain worker status where employment ended while she/he was still covered by

the restrictions;

was only be able to work legally if while working she/he had a worker authorization

document and was working in accordance with it.

If the Bulgarian or Romanian national was still under a contract of employment, for example

during periods of sick leave or maternity leave (including unpaid leave), she/he was still a

worker.

This document contains complex legal concepts and is targeted

at advisers. Anyone seeking further advice and information

may contact the Law Centre’s advice line:

028 9024 4401 or 028 7126 2433

Monday to Friday, 9.30am to 1pm

Migrants and benefits an advisers guide


Disclaimer: Although every effort is made to ensure the information on these pages is accurate and up-to-date, we cannot be held liable for any inaccuracies and their consequences. The information should not be treated as a complete and authoritative statement of the law.

Law Centre (NI) only operates within Northern Ireland and the information in this document is only relevant to Northern Ireland law.

When reading Law Centre documents, please pay attention to their date of publication as legislation may have changed since they were published.

© Law Centre (NI) and Belfast Integration and Participation Project 2014

ISBN 978-1-872299-29-7

Central Office

124 Donegall Street Belfast, BT1 2GY Tel: 028 9024 4401 Fax: 028 9023 6340 Textphone: 028 9023 9938Email: [email protected] Web: www.lawcentreni.orgTwitter: @LawCentreNI

Law Centre (NI)Law Centre (NI) provides specialist legal support to advice giving organisations and disadvant-aged individuals in community care, employment, immigration, social security and mental health. We also support the work of advice agencies through advice, casework, training, information, publications and policy development.

Western Area Office

9 Clarendon StreetDerry, BT48 7EPTel: 028 7126 2433Fax: 028 7126 2343Email: [email protected]

How does immigration status affect a person’s entitlement to benefit?What is habitual residence? What does right to reside mean for benefit entitlement?

Migrants and Benefits deals with these and other common issues that arise where migrants need advice on benefit entitlement. The guide is written for advisers and contains tips for dealing with difficult situations and practical guidance.

Belfast Integration and Participation ProjectBelfast Integration and Participation Project (BIPP) is a partnership between Belfast City Council, GEMS NI, Law Centre (NI) and South Belfast Roundtable. BIPP aims to improve the integration and participation of migrant and minority ethnic communities in the City.

Migrants and Benefits 2014

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