Rights of Homeless EU Nationals

Rights of Homeless EU Nationals
EU Law & Homelessness Lewisham Homelessness Forum Training 5th February 2014 Matt Moriarty, Legal Project Manager

Topics We Will Cover General Residence Rights Rights to Claim Benefits and Obtain Social Housing Removal and Extradition Any other issues…

Be aware:Residence rights and the ability to claim benefits/housing are closely intertwined…but different!

TOPIC 1:Residence Rights

A8 Nationals These countries joined the EU in 2004. Their citizens enjoy all the free movement rights (as students, workers, family members, self-sufficient persons, etc.) as other EU nationals except that Member States were allowed to restrict their access to the labour market. Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia

A8 Nationals: Work and Self-employment A8 nationals have always been able to take up self-employment without being registered. Until 1 May 2011, the UK maintained the Workers Registration Scheme. This required A8 workers to register employment for the first 12 months. Any changes in employment also needed to be registered. After 12 months, workers were no longer subject to the WRS and could exercise Treaty rights and claim benefits exactly as if they were any other EU national (e.g. French or German).

A8 Nationals: Work and Self-employment The Worker Registration Scheme ended on 1 May 2011. Anyone who took up work on or after 1 April 2011 did not need to comply with the scheme. Anyone whose work has continued after 1 May 2011 no longer needs to show that they were registered in order to show that they are (or were) ‘workers’. A8 nationals can now sign on as jobseekers at any time as long as they meet the criteria.

Q: Is the WRS Still Relevant? A: Yes, but only in a few circumstances. These include: Where an A8 national is trying to show that she or he has been residing legally and continuously in the UK for five years and is therefore a permanent resident. Where an A8 national’s most recent exercise of Treaty rights was as a worker, and that work ended before 1 May 2011.

A2 Nationals Bulgaria and Romania joined the EU on 1 January 2007. Until 1 January 2014, most Bulgarian and Romanian nationals needed to have prior authorisation from the UKBA in order to work in the UK. Some were exempt from this requirement, however. Bulgarians and Romanians could study or take up self-employment without restriction. Bulgarian and Romanian studentscould work for up to 20 hours per week.

A2 Nationals – Exemptions Some Bulgarians and Romanians were exempt from the worker authorisation requirement. These included (among others): Workers who have already performed at least 12 months of authorised work– they’re then treated like any other EEA national Some EEA family members (including the family members of A2 nationals who are lawfully exercising Treaty rights here) Permanent residents Spouses and civil partners of British Citizens and persons settled in the UK Persons who have leave to remain in the UK under the Immigration Act 1971 and whose leave is not subject to conditions restricting employment Dual nationals (A2/other EEA or A2/UK)

The New Barriers Since 1 January 2014 A2 nationals are presumptively entitled to the same rules and treatment as other EEA nationals in the UK (i.e. Romanian and Bulgarian nationals have the right to reside in the UK as a job seeker if they are actively seeking work and have a genuine chance of getting a job). However… Only EEA nationals who have been resident in the UK for three months will be able to satisfy the (new, tougher) Habitual Residence Test, and so access Jobseeker's Allowance. This new requirement applies to migrants from all EEA countries coming here to look for work - including British nationals returning to the UK after a period living abroad. There is also a six month cut-off point for Jobseeker's Allowance for EEA nationals who come to the UK to look for work, unless the person can provide compelling evidence that they have a genuine prospect of work.

Residence Rights:All EEA Nationals

What’s Work? What’s Self-Employment? Work only needs to be ‘genuine and effective’. Wages do not need to meet the minimum subsistence leveland the work does not necessarily have to be ‘legal’. Part-time work or self-employment (generally at least 10 hours per week, although sometimes less) counts. ECJ in Genc: ‘The essential feature of an employment relationship is … that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.’ The essence of self-employment is that the person is not working under the direction of another. That person could (in most cases) sub-contract the work to someone else or re-negotiate the terms of the relationship at any time. Self-employment does notneed to be registered with HMRC in order to count for the purposes of EU free movement law. 13

Can Sex Work Count as Self-Employment? Yes, it can. The ECJ found in a 2001 case called Jany and others that if the UK allows its own citizens to work as self-employed sex workers (which it does), then it must recognise EEA nationals as self-employed in the same way. Remember that according to Tribunal case law, registration with HMRC is not necessarily required for an EEA national to be exercising Treaty rights as a self-employed person.

Retaining ‘Worker’ Status ‘Worker’ status can be retained if the worker is: Temporarily unable to work due to illness or accident; In duly recorded involuntary unemployment after working in the UK, and has signed on as a jobseeker; Involuntarily unemployed and has embarked on vocational training; or Has voluntarily ceased working and has embarked on vocational training that is related to his/her previous employment. A person can only retain ‘self-employed’ status if she is temporarily unable to engage in her self-employment activity due to illness or accident.

Problems Related to Pregnancy For now, under UK case law, workers who leave work due to pregnancy do not retain their ‘worker’ status and cannot claim benefits unless their employers give them maternity leave. However, the UK Supreme Court has referred this issue to the CJEU. The CJEU may imminently rule that the UK’s position violates EU law.

Permanent Residence Any continuous five-year exercise of Treaty rights will be sufficient. The person can have been absent from the UK for periods of up to six months, or longer if there were especially compelling reasons such as illness (see Article 16 of Directive 2004/38). It’s possible to combine different activities (e.g. working for three years, EEA family member for one year, self-employed for one year). Some EEA nationals can acquire permanent residence sooner – for example, if they’re working and become permanently unable to work or reach pension age while working. Ask AIRE if this comes up. Permanent residence is only lost after two continuous years of absence from the UK. The right is automatic – the EEA national doesn’t need to obtain any kind of document from the Home Office, although s/he can.

Family Members: Spouses, Civil Partners, Children and Dependants As long as the EEA national is exercising Treaty rights in the UK, the following family members have a right to live and work here: Spouses and civil partners, including those of the same sex Direct descendants under age 21, including stepchildren and step-grandchildren Other direct descendants who are dependent on the EEA national or the spouse/civil partner (e.g. children, grandchildren) Dependent direct relatives in the ascending line (e.g. parents), including relatives of the spouse/partner

Family Members – Durable Partners and Other Family Members The UK is required to ‘facilitate entry and residence’ for: Durable partners Other family members who were dependent on, or members of the household of, the EEA national in the EEA national’s home country Other family members whose health ‘strictly requires’ personal care by the EEA national

Family Members – Retaining a Right to Reside (Death or Departure) Article 12(2) of Directive 2004/38: The family members of an EEA national who has died will retain a right to reside in the UK if: They are not EEA nationals themselves, and They have lived in the UK as EEA family members for at least one year before the EEA national died. Article 12(3): The family member of an EEA national who has left the UK, or who has died, will retain a right to reside in the UK if: The family member is the EEA national’s child, and The child is enrolled in school in the UK for the purpose of studying there. OR The family member has actual custody of the EEA national’s child, and The child is enrolled in school in the UK for the purpose of studying there. For Article 12(3), the family member’s nationality doesn’t matter, and the right lasts until the child is no longer enrolled in school for the purpose of studying.

Retaining a Right to Reside (Divorce or Termination of Civil Partnership) Article 13 of Directive 2004/38 provides that the spouse/civil partner of an EEA national exercising treaty rights can retain a right to reside in the UK following a divorce, annulment or termination of the civil partnership if…

… The spouse/partner is an EEA national and is exercising her own Treaty rights, or begins to do so. … Prior to the initiation of the divorce or annulment proceedings or the termination of the civil partnership, the marriage or partnership has lasted at least three years, including at least one year in the host Member State. (This provision applies to non-EEA nationals.) … The spouses/partners agree, or a court orders, that the non-EEA parent will have custodyof the couple’s children. … The retention of residence rights is ‘warranted by particularly difficult circumstances’, including domestic violence that occurred during the marriage/partnership. (This provision applies to non-EEA nationals.) … Under some circumstances, when the non-EEA spouse/partner has a right of access to a minor child. Non-EEA nationals must fulfil the conditions for qualifying as a worker, self-employed person or self-sufficient personuntil they acquire a right of permanent residence.

Be aware that the UKBA will expect to see that the EEA national was in the UK and exercising Treaty rights (e.g. working, self-employed) on the date of the final divorce decree. We think this rule is wrong and are challenging it.

On the Domestic Violence Rule in EU Law Under EU law, the victim does not need to show that the relationship broke down because of the domestic violence. This is a significant difference between rights under EU law and rights under the Immigration Rules.

The EU Domestic Violence Rule and Other Family Members Under Regulation 10 of the Immigration (European Economic Area) Regulations 2006, a former spouse or civil partner can retain a right to reside if the domestic violence was perpetrated against either him/herself or another family member (such as a child).

Proving Abuse: The UKBA European Casework Instructions Best evidence: A relevant conviction An injunction, non-molestation order or other protection order Full details of a relevant police caution (Home Office will check Criminal Records Office) Claim that a prosecution is pending (Home Office will have to check, can grant DLR in the interim) Other evidence: Medical report from a hospital doctor confirming injuries consistent with domestic violence Letter from a family practitioner who has examined the survivor and found injuries consistent with domestic violence Undertaking given to a court that the perpetrator of the violence will not approach the victim Police report confirming attendance at the survivor’s home as the result of a domestic violence incident Letter from a social services department confirming its involvement in connection with domestic violence Letter of support or report from a women’s refuge

Family Members – Separated Spouses and Civil Partners Under the ECJ’s judgment in Diatta v Land Berlin, a marriage is regarded as continuing until there is a final divorce decree. It does not matter if the couple are separated. As long as the EEA national spouse or civil partner is exercising Treaty rights in the UK, his or her spouse/partner will have a right to reside here. Estranged spouses/civil partners can claim permanent residence after five years if they can show that the EEA national exercised Treaty rights in the UK continuously during that time.

Separated Durable Partners Under EU law at present, durable partners do not have an established right to retain their right to reside in the UK if the relationship breaks down. If a separated durable partner is an EEA national, she will need to begin exercising Treaty rights here. If she is a non-EEA national, she will need to find some other basis for showing that she has a right to live in the UK. UK tribunals are beginning to find that durable partners can retain a right to reside if domestic violence occurred. Talk to us if this comes up.

Access to Evidence About the EEA National Immigration Cases In Amos v Secretary of State for the Home Department (2011), the Court of Appeal ruled that the Home Office is not required to help family members obtain proof that an EEA national is working or otherwise exercising treaty rights. However, you can … Use Rules 45, 50 and 51 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 to introduce evidence that would be inadmissible in a court of law, or ask the tribunal to summon a witness or compel the government to produce information. See also Rules 15 and 16 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Try to get the UKBA to obtain information from HMRC, which is allowed under section 40 of the UK Borders Act 2007. This can be very difficult. Benefits Cases Kerr v Department for Social Development, [2004] UKSC 23, para 62: The UK Supreme Court found that the benefits authorities must make enquiries to figure out whether the EEA national has been working or self-employed. ‘What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.’ 29

Access to Evidence – the UKBA’s‘Pragmatic Approach’ The UK Border Agency has indicated that it will take a ‘pragmatic approach’ to finding evidence about the EEA national spouse’s exercise of Treaty rights if the victim cannot do this due to domestic violence. You should submit evidence of the domestic violence along with the residence card application and remind the Border Agency of this ‘pragmatic approach’ policy. Provide as much information as you can about the EEA national, such as: Name Date of birth Nationality National Insurance number Employer (if known) Information about self-employment (if known) 30

Family Members – Parents Individuals who are parents, including lone parents, may have a right to reside in the UK if: The child is an EEA national and is self-sufficient (Zhu and Chen). Chen parents can’t claim benefits, but the 2012 amendments to the UK laws indicate that they can work. The parent is the primary carer of the child of an EEA national who has worked in the UK, and the child is in compulsory education. The EEA national’s presence in the UK must have overlapped by at least one day with the child’s time in compulsory education, and the child’s presence must have overlapped with the EEA national’s work (Ibrahim; Teixeira). Ibrahim parents can work. The child is a British Citizen, and the child would be forced to leave the territory of the EU if the parent did not have a right to reside here (Zambrano; Dereci). Example: British Citizen child of Colombian parents. Zambrano parents can work but – for now – cannot claim benefits.

Other Legal Tools Remember that EEA nationals have rights under the European Convention on Human Rights (implemented in the UK by the Human Rights Act), just like anyone else in the UK. In particular, they have rights under Article 3 (no torture or removal to a state where they would face a real risk of torture or severe destitution). They also have rights under Article 8 (the right to private and family life). EU nationals also have rights under the Charter of Fundamental Rights of the European Union. The Charter contains important provisions on the rights of children and the elderly, among others.

Hint: Long Residence and British Citizenship Be aware that people who have resided in the UK for a lengthy period (i.e. 10 years or more), as well as young people who have spent at least seven years and/or a majority of their lives here, may have a right to apply for leave to remain under the Immigration Rules. Young people who have a parent who is a British Citizen or an EEA national with permanent residence may also be British Citizens (or have a right to register as such). Consult a qualified immigration adviser if this comes up.

TOPIC 2:Social Assistance Benefits

Access to Social Assistance Benefits The Benefits: Housing Benefit Council Tax Benefit Income-based Jobseeker’s Allowance Income-related Employment and Support Allowance State Pension Credit Working Tax Credit Child Benefit and Child Tax Credit

The Habitual Residence Test The problem will almost always be the right-to-reside test.

Seven Ways to Get an EEA National Social Assistance Benefits

1. Sign on as a Jobseeker EEA national jobseekers who are ‘actually habitually resident’ and who are actively seeking work and have ‘genuine chances of being engaged’ are eligible for: Income-based Jobseeker’s Allowance Housing Benefit Council Tax Benefit However, they cannot obtain social housing. Note the recent restrictions on applications for JSA. Also, from April 2014 newly migrated EEA jobseekers will no longer be eligible for Housing Benefit.

2. Work An EEA worker, even working part-time (as little as ten hours per week), is eligible for all of the benefits that a British Citizen would get. A2 nationals cannot work unless they are exempt or have authorisation.

3. Get into Self-Employment A2 nationals can be self-employed without any restrictions. Self-employed EEA nationals are eligible for benefits. There is case law suggesting that self-employed people with a very low level of activity are still entitled to benefits. There is also case law establishing that people selling The Big Issue can qualify as self-employed.

4. Demonstrate Retained Worker or Self-Employed Status This can be done in a number of ways, but only if the person was a worker or self-employed to start: Show that you were working or self-employed but are ‘temporarily unable to work due to illness or accident’. Sign on as a jobseeker, after having been made involuntarily unemployed. This won’t work for self-employed people. Undertake vocational training (must be related to previous employment unless made involuntarily unemployed). This won’t work for self-employed people.

5. Show Permanent Residence This is worth pursuing for any EEA national who has lived in the UK for five years, has reached pension age or has become permanently incapacitated. In cases where the person has reached pension age or has become permanently unable to work, seek our advice.

6. Show That You Are a ‘Family Member’ Family members include spouses, civil partners, children or grandchildren under 21, older children or grandchildren who are dependent, dependent relatives in the ascending line. If you are working with someone who has another relative in the UK, there may be a way of applying to be recognised as an ‘other family member’. Remember that the UK has adopted new laws stating that Zambrano parents cannot claim benefits.

7. Show that You are the ‘Primary Carer of the Child-in-Education of a Worker’ This rule is not contained anywhere in domestic law. It comes from the Court of Justice of the EU’s interpretation of the Treaties. When dealing with the benefits authorities, call it the Teixeira and Ibrahim rule. The rule might also apply if the primary carer is the person who worked. It won’t work in the case of A8 nationals who never registered. The rule doesn’t apply where the parent was self-employed rather than employed.

What Should I Ask When Figuring Out Whether Someone May Have a Right to Reside? What is your nationality? When did you come to the UK? Have you left the UK since then? For how long? (I.e., might you be a permanent resident?) Have you ever worked or been self-employed in the UK? When? How many hours per week? Are you still working/engaging in self-employment? Why did you stop? If you’re an A8 national, was your work prior to 1 May 2011 registered? If you’re an A2 national and are employed, is your work authorised? Might you be exempt from the worker authorisation requirement? Do you have any family members in the UK? Who are they? What are their nationalities? What are they doing (e.g. studying, working)? If you have children, are they in school? Are you their primary carer? Can you sign on as a jobseeker?

Housing Benefit EEA nationals are generally eligible for Housing Benefit under the following circumstances: • Those who are workers or in self-employment in the UK • Those who are considered to have a permanent right to reside (ie. EEA Nationals or family members have resided in the UK for five years, and those that have worked in the UK and reached retirement age) • EEA workers who are temporarily unable to work • EEA nationals who have entered the UK looking for work and who have registered as a jobseeker will be entitled but only if they are entitled to income-based jobseeker's allowance. • EEA nationals who are students or self-sufficient may also be eligible in some circumstances but will have to pass the Habitual Residence Test. • Family members of eligible EEA nationals will usually be eligible • Other EEA nationals are only entitled to benefit if they have a right to reside and are habitually resident. The above criteria also apply to eligibility for Council Tax Benefit.

Local Authority Housing Assistance EEA Nationals (including Romanians and Bulgarians from Jan 2014) will be eligible for assistance if they are: • a worker i.e. a person who has actually worked (periods of illness, unemployment and vocational training are still treated as work). Work does not need to be full-time – if they are doing genuine part-time work, or • a worker who has had to stop work because of permanent incapacity and has lived in the UK for more than 2 years, or • a worker who has had to stop work because of permanent incapacity for work resulting from an industrial illness or disease that entitled them to a full pension from a UK institution, or • self-employed, or • a worker or a self-employed person who has retired after having worked in the UK for at least 12 months and has lived in the UK for at least 3 years, or • self-sufficient, or • a student with comprehensive insurance who is self-sufficient, or • someone who has been here lawfully, exercising EU Treaty rights for 5 years continuously.

No Recourse to Public Funds? To be eligible for care services from a local authority in the UK, including accommodation and financial support, an individual with NRPF must be: an adult, including adults with responsibility for children; ordinarily resident in the local authority area; assessed as having community care or mental health needs under the National Assistance Act 1948, or be someone whom there is a duty to support under the Children Act 1989; eligible for support under immigration law; or someone who has to be supported to prevent a breach of their human rights, under the European Convention on Human Rights;

No Recourse to Public Funds! There are four categories of people who are excluded from support by the local authority according to immigration law (Schedule 3 Section 54 of the Nationality, Immigration and Asylum Act 2002) and they are as follows: nationals of the European Economic Area (other than the UK) people with refugee status from an EEA state people unlawfully present in the UK (including those whose visas have expired) failed asylum seekers who have refused to cooperate with removal directions In such cases the local authority must assess whether withholding or withdrawing support would constitute a breach of the individual's or family's human rights. The local authority may also conclude that the only support that is necessary to avoid a breach of human rights is the provision of assistance to the individual or family in returning to their country of origin.

Proportionality and the EU Charter The principles of proportionality, equal treatment and non-discrimination are binding under EU law. The application of the EU Charter may also be relevant to ‘right to reside’ cases. Should decision makers and judges now be asking whether granting an application which doesn’t fall squarely within the relevant regulations would place an unreasonable burden on the UK benefits system? (As per Case C‑140/12 Pensionsversicherungsanstalt v Peter Brey.)

TOPIC 3:Removal and Extradition

Public Policy and Public Security NOTE: The UKBA will ‘consider’ for deportation any EEA national who has been sentenced to more than 24 months, or more than 12 months for a violent offence or drugs offence.

Homeless EEA Nationals You may come across a homeless EEA national who has received a letter (often in her language) from UKBA saying that they want to interview her to see if she is exercising Treaty rights. This is part of a pilot scheme to expel EEA nationals for not exercising Treaty rights. The AIRE Centre has won two such cases already in the Tribunal by showing: the person had become a jobseeker in the meantime; and/or expulsion was disproportionate. If someone is removed from the UK in this way, s/he can come right back in.

Extradition Many EEA nationals (and others) in the UK who have been charged with or convicted of crimes in other EU Member States are threatened with extradition. However, if the person has established a private or family life in the UK, this should be challenged: see HH v Deputy Prosecutor of the Italian Republic (UK Supreme Court, 2012). This is especially true if the offence was not a ‘grave’ one.

TOPIC 4:Human Trafficking

Who Counts As a Trafficking Victim? Council of Europe Convention definition: "Trafficking in human beings" shall mean [1] the recruitment, transportation, transfer, harbouring or receipt of persons, [2] by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, [3] for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

Who Counts As a Trafficking Victim? (cont’d) The essence of the definition: For adults: Recruitment, transfer or harbouring + coercion, threats, deception, abuse of power, etc. + for the purpose of exploitation. (3 elements) For children: Recruitment, transfer or harbouring + for the purpose of exploitation. (2 elements)

EU Trafficking Directive Directive 2011/36 Deadline for transposition: 6 April 2013 Key concepts that distinguish from the Council of Europe Convention: Transposition Direct effect Preliminary rulings Francovichdamages claims

A Few Possible Indicators of Trafficking Is the person from a frequent trafficking ‘source’ country? Has s/he ever been told that s/he owed someone a debt, especially for travel, food, housing or work materials? Has s/he ever worked for no pay or little pay? Has anyone given him/her promises about resolving his/her immigration status, or threatened him/her with deportation? Has s/he ever been given a false passport or had his/her passport taken away by someone else? Has s/he ever worked very long hours and/or without having days off? Has s/he ever lived in the same building where s/he worked or been transported to and from work by the employer? Has s/he ever been threatened, controlled, followed or physically or sexually assaulted? Has s/he ever been prevented or discouraged from seeking medical care? For domestic workers: What kind of food does s/he eat? Where does s/he sleep? Does s/he get days off? Can s/he leave the house without permission? For more, see http://www.unodc.org/pdf/HT_indicators_E_LOWRES.pdf. 59

Two Additional Ways to Get an EEA Trafficking Victim Social Assistance Benefits

1. Recovery and Reflection Period You can refer EEA nationals (like anyone else) into the National Referral Mechanism. EEA nationals are entitled to the recovery and reflection period (minimum 30 days, usually 45) just like any other victim. This doesn’t actually get her into the benefits system, but does provide support for a limited period while you figure out how to get her access to social assistance. The AIRE Centre can help apply for a residence permit.

2. Apply for a Residence Permit The UKBA briefly flirted with a policy of not granting discretionary leave to EEA nationals. However, this position has now been reversed. If a victim gets discretionary leave, s/he can: Get access all benefits, housing and anything else a British Citizen would get Work (relevant to A2 nationals)

In your groups… Read over part 1 of the case study you’ve been given. Discuss in your groups the answers to the following questions: What would your immediate response be if presented with this case? What questions would you ask to get all the information you might need? Plan out what course of action you would take next? Now read part 2 of the case study and prepare a presentation to the other groups addressing: What are the gaps in your knowledge of this case? What more would you need to know to help them more? What are the dangers presented in this case? How would you prevent these? What would the best plan be to help this individual? Who else would you involve in this plan?

Rights of Homeless EU Nationals