Terms & Conditions

[Anonymous]

[b:f60108bde2]Immigration control and the social treaties[/b:f60108bde2]

The Schedule to the SS(I&A)CA Regs 2000 says that a person who would normally be subject to immigration control is exempt from the general benefit exclusion if he or she is lawfully present in the UK and comes from a country that has ratified ECSMA or the 1961 European Social Charter.

Outside the EEA, only Croatia, Macedonia and Turkey have ratified these. But there is a more recent Social Charter dating from only 1996 which consolidates the 1961 charter plus some later protocols. According to the explanatory notes accompanying the 1996 Charter, it is intended that the 1961 treaty will gradually be phased out. It seems that new ratifications are all linked to the new Charter, not the old one. There are quite a few countries who have ratified the 1996 Charter: Moldova, Azerbaijan among others.

I don’t know whether the intention of the 2000 Regs is to limit the exemption to a static list of countries who had ratified the old Charter, and to exclude those who ratify the new one; or whether the Regs are simply out of date and the intention is to allow claimants from the 1996 countries to be exempt from immigration control as well.

I have emailed Ursula Brennan at DWP and asked if she can shed any light on it for us.

[b:f60108bde2]HRT and inactive Europeans[/b:f60108bde2]
While she is at it, I have asked her to elaborate on her comments that have appeared on here a couple of times suggesting that:
(i) any inactive EEA natio0onal who claims benefit is [i:f60108bde2]de facto[/i:f60108bde2] a burden, and
(ii) it is for the Home Office to decide these things anyway – social security decision makers should not attempt to apply the self-sufficiency test

I have drawn her attention to paras C.726 – 729 of the Guidance Manual and asked whether these merely explain Home Office processes or whether they are there to guide HB decision makers in applying the self-sufficiency test themselves.

I will post her reply on the forum

[Anonymous]

I got a reply from Ursula, but have somehow managed to lose it from my inbox so I cannot paste her exact words. But the gist of it was as follows:

[b:86fa1113c5]The 1996 Social Charter[/b:86fa1113c5]
Because the UK has only ratified the 1961 charter, the principle of mutual, reciprocal assistance only applies between the UK and other countries that have ratified the 1961 charter. So the 2000 Regs quite deliberately restrict the exemption to nationals of those three countries (Croatia, Macedonia and Turkey). Excluding the more recent charter from the 2000 Regs was deliberate, it is not a drafting error.

[b:86fa1113c5]Inactive EEA nationals and the self-sufficiency test[/b:86fa1113c5]
I wish I hadn’t lost the full reply because it went into some detail here, but Ursula confirmed that her understanding of the Guidance Manual passage referred to above is that it is intended to provide background information on the Home Office approach – DWP does not expect local authorities to apply their own self-sufficiency test. She suggested dividing claimants into three groups:

– before three months’ residence there just isn’t any way that a means-tested benefit claim can be compatible with self-sufficiency. These claims should be rejected without troubling the Home Office for an opinion. As far as the Home Office is concerned, those claimants have an unconditional right to reside for three months anyway so the HO would not be interested in self-sufficiency at that stage (I’m not sure this is completely right, they still must not become a burden as I understand it by virtue of Reg 13(3) of the Immigration (EEA) Regs 2006)
– between three months and about a year, it is likely that the Home Office would consider a claimant who has claimed means-tested benefits to be a burden, but they would not actually revoke their residence permit
– after about 12 months, the Home Office might be a bit more flexible on the burden issue and weigh past economic status against future prospects. Again, the residence permit would not actually be revoked.

Ursula says DWP has referred several Pension Credit cases to the Home Office and none of them lost their right to reside even though these were not claimants who apparently had any intention of returning to the labour market.

This has made DWP’s policy thinking clearer to me and it certainly seems that they do not expect their own DMs to make decisions under European immigration law. But Ursula’s reply has left me slightly confused about how DWP deals with the Home Office verdict – is it the case that non-revocation of the residence permit means the claimant is not a burden? I’ll just ask her to clarify that for me.

[jgwizdak]

I’ve just read the relevant bits in the Guidance Manual and it keeps saying things like,

“You will have to take account of ” when dealing with the HRT section.

Unless English has changed drastically since I was in school this sounds like an instruction to do something and not a description of what some other organisation is doing.

Considering that Ms Brennan seems to be in a minority of one in her interpretation I think an explanatory Circular should be issued.

Aaaaaaargh

[Anonymous]

I have had a follow-up reply from Ursula Brennan now. I asked again for the avoidance of doubt whose call it is whether the claimant is self-sufficient or not. I was particulrly interested to know what should happen if there is an appeal: should the self-sufficiency decision be justified on its merits, or should the Council simply tell the Tribunal “the Home Office said so”. Here is the reply:

[i:440b9d5ec5]”An economically inactive EEA national or an A8 national without worker status who applies for an Income Support or Pension Credit and HB/CTB is deemed to be not self-sufficient unless they produce an EEA residence permit issued by the Home Office on the grounds that they are self-sufficient. You can decide that by applying for benefit they have shown that they are not self-sufficient and therefore don’t have a right to reside. There is no need to refer the case to the Home Office. Our teams in Wick & Newcastle who decide claims made by economically inactive EEA nationals / all claims made by A8 nationals, make these kinds of decisions all the time and I’m not aware of anyone appealing on the grounds that they are self-sufficient, generally they appeal on the grounds that they have worked or are work seeking or they produce residence permits.”[/i:440b9d5ec5]

So it seems the DWP’s policy with the benefits they administer is to assume that the claimant is not self-sufficient unless the Home Office says they are self-sufficient. The onus is put on the claimant to have positive proof of self-sufficiency. One way they can get that is by applying for the optional residence permit.

Ursula says that they have referred several Pension Credit cases to the Home Office where the claimant showed a residence permit as proof of self-sufficiency. DWP’s point was that the Pension Credit claim changed things and showed the claimant had ceased to be self-sufficient. But Home Office wasn’t interested and the permits were not revoked, so DWP was stuck with these claimants because they had documents confirming their self-sufficiency.

In summary, I think the position is that DWP decision-makers do decide whether they think the claimant is self-sufficient, but in a fairly superficial way (only qualify if you don’t claim basically); they also refer cases to the Home Office where the claimant has a residence permit that they think opught to be revoked; and the claimants just lie back and take it.

[Kevin D]

Not my area of knowledge, but a thought came to mind.

In deciding whether or not a person is incapacitated, there is a CD that makes it crystal clear that the DWP make that judgement – an LA cannot.

Does that logic extend to the self-sufficiency test? i.e. If self-sufficiency is a matter for the Home Office, then are LAs (and, presumably the DWP) REQUIRED to follow the Home Office lead……?

Regards

[Anonymous]

At a slight tangent – what happens when someone who was working under the A8 Worker Registration Scheme stops working because she has a baby? She will no longer be a worker or work seeker. Does she have to supply a Residence Permit to get HB? She got Maternity Allowance for 6 months and gets CHB and CTC. Would she have already have had to pass the test in order to qualify for these benefits?

Any ideas please!

[ralph]

Cathy

I had cause to ask about a pregnant A8 worker in August. Ursula gave the following response:
[quote:168b0723f3]Before I answer your question I thought I’d check the rules for receiving Statutory Maternity Pay (SMP) and Maternity Benefit (MA) as they are both outside my normal policy area. The information held on the DWP internal briefings on both state that they can’t be paid until 11 weeks before the baby is born so this is the earliest anyone can take paid maternity leave, both are payable for up to 26 weeks.

To qualify for SMP the woman must have been employed in the 15th week before the baby is due & employed without a break for at least 26 weeks into the 15th week before the baby is due and be earning enough on average (£79 a week from 12 April 2004) for it to be relevant for National Insurance purposes. If the woman leaves her employment before the 15th week before the baby is due then she doesn’t qualify for SMP. However, if she is employed at any time during the 15th week & she has qualified for SMP, then the ex-employer must pay SMP. There is also no requirement for the woman to return to work after the baby is born.

A8 nationals only have a right to reside whilst they are working, if they have worked for less than 12 months, and maternity leave will only count if she still has a contract. Whether she still has a valid contract will depend on the type of work she is doing if it is for an agency then it’s doubtful that she still has a contract. She must also supply a copy of her Worker Registration Card & certificate authorising her employment as unregistered workers are not working legally and therefore are not eligible at all.

If she is no longer working then she doesn’t have a right to reside because she is an accession worker requiring registration who is no longer working and therefore is no longer a ‘qualified person’ as defined in Regulation 5(a) of the Immigration (European Economic Area) Regulations 2000. Regulation 5(2) of the Accession (Immigration and Worker Registration Regulations 2004 is the regulation which allows you to disallow the claim, you don’t need consider self-sufficiency.

[/quote:168b0723f3]

Hope this answers your question.

With regards to the above thread regarding the self-sufficiency test itself, in response to a seperate question regarding someone who’d claimed JSA(IB), Ursula said
[quote:168b0723f3] There is no need for you to consider their income because self-sufficiency can only be decided by the Home Office – but claiming an income-related benefit is sufficient for you to say they someone isn’t a ‘qualified person’.[/quote:168b0723f3]

From that I’m assuming that we can make the decision that someone is not able to access HB/CTB in that circumstance.

[Anonymous]

Thanks a lot Ralph, that’s been really helpful!

Cathy

[jgwizdak]

Just to make sure I’ve got this right.

I get an LA input document from an A8 National who has worked legally for a year or more and they are now unemployed.

They want to claim JSA(IB) and the note on the document says “case passed to Wick for HRT”

Does this mean that I have to wait for 3 months until the DWP notify me that they either qualify for JSA or not, before the HB claim can be processed.

It’s going to do wonders for our PIs (not)

[Anonymous]

The more I think about it, the more I think that Ursula’s insight into DWP policy has sweeping implications.

Julian, your A8 national, having completed 12 months’ registered work, should now be able to retain status as a worker while signing on and looking for work – this is different from the status of initial work seeker, it is an extension of worker status and the claimant is exempt from the HRT. But the question now arises, is it up to you to establish that or do you say to the claimant “Not my problem mate, you go and get yourself a residence permit if you think you are a worker with retained status”.

I can see the logic of all immigration decisions being made by immigration officials, and benefit decision makers simply acting on Home Office decisions about residence status. But I am not completely convinced that it is justifiable to refuse all benefit claims on the basis that the claimant does not have the right to reside unless and until the Home Office says they do have the right to reside. The only solution would seem to be that every claim from a non-British or non-Irish EEA national should be referred to the Home Office (unless the claimant already happens to have documents – ironically, that would probably see A8s getting their benefit quicker than anyone else!).

A circular would be welcome I think

[Anonymous]

Last time I posted scenario of pregnant A8 worker I was advised ‘If she is no longer working then she doesn’t have a right to reside because she is an accession worker requiring registration who is no longer working and therefore is no longer a ‘qualified person’ as defined in Regulation 5(a) of the Immigration (European Economic Area) Regulations 2000. Regulation 5(2) of the Accession (Immigration and Worker Registration Regulations 2004 is the regulation which allows you to disallow the claim, you don’t need consider self-sufficiency.’

I now have slightly different scenario.

Slovak clmt applies for hb in June 06. Came to UK 25/1/03 under Au Pair visa valid 20/1/03-20/1/05. Had WRS certificate for Primark from 21/9/05 but had baby 27/2/06 and has stated she no longer has employment contract and has no intention of returning to work at present. She was on SMA 30/1/06-29/7/06 and now gets CHB & CTC. Her HB & IS claims have been refused as she doesn’t satisfy A8 worker conditions as no longer working for registered employer.

She has however appealed against both decisions on grounds that she was working as Au Pair from 25/1/03-Mar’05 (proof provided) and had therefore been legally working in UK for 12 months uninterrupted on 30/4/04 and therefore is not required to register under WRS scheme.

IMMIGRATION

The Accession (Immigration and Worker Registration) Regulations 2004
states

(3) A national of a relevant accession State is not an accession State worker requiring registration if he was legally working in the United Kingdom on 30th April 2004 and had been legally working in the United Kingdom without interruption throughout the period of 12 months ending on that date.

(4) A national of a relevant accession State who legally works in the United Kingdom without interruption for a period of 12 months falling partly or wholly after 30th April 2004 shall cease to be an accession State worker requiring registration at the end of that period of 12 months.

So my question is does this mean I can actually pay her? Any advice will be gratefully received.

[Anonymous]

As I understand it, for someone in your claimant’s position all the tangled threads come smoothly together: it doesn’t matter which EU country she is from, and it doesn’t matter whether she was or wasn’t a worker in the past. She has now left the labour market and has no immediate plans to return to it. This makes her an economically inactive person who has the right to reside here as long as she is self-sufficient. The same would be true if she came from Romania, or France, or anywhere else except Ireland.

At this stage Ursula Brennan would say she cannot by definition be self-sufficient because she has claimed HB and IS. The Guidance Manual is more nuanced and suggests a bit of leeway.

I would have suggested that she should only be treated as self-sufficient if she gets residence papers from the Home Office to say so; but a regular contributor on EU-related threads on these boards called Mary (Dix from Poole by any chance?) quite rightly pointed out that it is not Home Office policy to issue papers to economically inactive people – so a visit to the Home Office would shed absolutely no light on the question whether she is self-sufficient.

[Anonymous]

Even if she is not self-sufficent, can she still claim if the LA considers she will not be an ‘unreasonable burden’ to the state’s benefits system?

[ralph]

Cathy

I asked Urula to clarify some points in A9/06 & A1/07 earlier this week.

Her response confirms what Peter is saying and para 2 speaks directly to your question:
[quote:844a848aee]Only workseekers from an A8 country who is subject to the Worker Registration scheme or from an A2 country who is subject to the Worker Authorisation Scheme are required to be self-sufficient while they look for work. An EU national who has a right to reside as a worker or workseeker cannot be denied JSA(IB) as their rights don’t include the requirement to be self-sufficient. However, an A8 or A2 national workseeker who is meant to be self-sufficient isn’t able to claim JSA(IB) or IS as they are both considered to be social assistance. It isn’t about the benefit rates but about the EU national’s status in the UK.

Since 30 April 2006 social security regulations stipulate that workseekers can only claim HB & CTB if they are in receipt of JSA(IB) as it is the appropriate benefit for a workseeker. IS cannot be claimed unless the EU national has worker status & is temporarily unable to work due to illness or accident but as it isn’t the appropriate benefit for a workseeker it can’t be paid to workseekers. EU nationals who aren’t working or aren’t looking for work generally apply for IS and as they are required to be self-sufficient we refuse to pay them.
[/quote:844a848aee]

Trust this helps.

[Anonymous]

Thank you everyone for your help. Could someone please direct me to the precise legislation which says all that!

Thanks,

Cathy

[Author]

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