SPECIAL NON-CONTRIBUTORY
BENEFITS FOR EU MIGRANTS:
A TRI-CITY PROJECT
EUROPEAN COMMISSION
VP/2011/004/0120
Esther Lieu, Project Manager
14 May 2012
PROJECT PARTNERS
LEAD PARTNER: ADVICE ON INDIVIDUAL RIGHTS IN EUROPE (The AIRE
Centre), LONDON, UK
Mission: To promote awareness of European law rights and assist marginalised individuals and those in
vulnerable circumstances to assert those rights. We:
•
Take cases to the European Court of Human Rights (including cases on behalf of non-EU trafficking
victims facing expulsion);
•
Provide free legal advice to individuals and their advisers on their rights under EU law (mostly EU
law on the free movement of persons)
PARTNER 1: FREE LEGAL ADVICE CENTRES (FLAC), DUBLIN, IRELAND
Independent Human Rights organisation dedicated to the realisation of equal access to justice for all.
Activities:
• Provide free legal information, advice and representation;
• Campaign for a state civil legal aid system
PARTNER 2: LIZE GLAS, RADBOUD UNIVERSITY, NIJMEGEN, THE NETHERLANDS
PhD Student (thesis on the relationship between European Court of Human Rights, the Court of Justice
of the EU, the member states, the Parliamentary Assembly and the Committee of Ministers). Previous
internships at The AIRE Centre, UNHCR Cyprus, Netherlands Helsinki Committee.
1
PROJECT OBJECTIVES & ACTIVITIES
OBJECTIVE:
ACTIVITIES:
To improve the information that EU migrants in
Amsterdam, Dublin and London have about their right
to access special non-contributory benefits (Art. 70,
Regulation 883/04/EC).
1. Monitoring EU migrants’ access to special noncontributory benefits in the three Member States
concerned;
2. Giving advice to EU migrants applying for special noncontributory benefits;
3. Roundtables in Dublin, London and Amsterdam to
discuss the problems EU migrants applying for benefits
face in those cities;
4. Preparation of Information Notes in multiple languages;
5. Final Report
EXPECTED OUTCOMES
EXPECTED OUTCOMES
•
•
•
Low-income EU migrants in Amsterdam, Dublin and London will have more information about how
and in what circumstances they can access special non-contributory benefits;
Law and policy makers at local, national and European levels (including within the EC) will have
more specific information about the experience and challenges faced by EU migrants accessing
special non-contributory benefits;
Advisers working in these three cities will create stronger networks to support EU migrants there,
share best practice and develop monitoring and advocacy tools;
USE OF RESULTS
•
•
•
A purposely-designed webpage will allow advisers and representatives to access the multi-lingual
information notes, materials from the round-tables and conference, and other related resources for
free;
Advisers and representatives working with EU migrants from other Member States or other areas of
these three Member States will be invited to the roundtables;
The report will be sent to relevant law and policy makers at local, national and EU levels, and
towards the end of the project the project staff will arrange meetings with those law and policy
makers to discuss the results of the project.
ACTIVITY 1
ACTIVITY
DETAIL
1.1
Collection of information (through
statistics already available and freedomof-information-type requests) about the
number of EU migrants in these Member
1: Monitoring EU States who apply for special nonmigrants’ access contributory benefits.
to special noncontributory
1.2
access in the
Reporting, in relation to these claims by
three Member EU migrants, of
States
whether their claims are successful;
concerned.
how long it takes for their claims to
be processed (particularly as
compared with host Member State
nationals); and
reasons why applications are
refused.
1.3
Monitoring of case law in the courts of
these Member States to identify the
major legal issues that arise and how the
national authorities have resolved them.
ACTIVITIES
•
Explore what information is already
available (especially in NL – Lize)
• Draft standard FOI request
regarding the nationality and
gender of people making claims for
SNCB.
• Submit FOI in all three cities
• Pursue the FOI as far as possible
Create a spread-sheet to consolidate
the information retrieved across the
three cities (either from the FOI
Request or other sources)
•
Establish monthly reporting
template for each city
• Create a spread-sheet to
consolidate the reported
information and areas for follow-up
UPDATE
ACTIVITY 2 & 3
ACTIVITY
DETAIL
2.
Giving advice to
EU migrants
applying for
special noncontributory
benefits.
2.1 Running a year-long specialist
legal advice service, providing
advice – usually to other advisers in
the NGO sector working with EU
migrants – on their right to access
special non-contributory benefits.
3.
Roundtables to
discuss the
problems EU
migrants
applying for
benefits face in
those cties.
3.1 Establish a network of the
major NGO actors providing advice
on EU migrants who may be
eligible
for
special
noncontributory benefits.
3.2 Strengthen such networks
through the round-tables give the
project staff an opportunity to
understand in detail the problems
with access to special noncontributory benefits in each city.
ACTIVITIES
•
Lawyers and legal advisors
working in the sector to be
directed to the AIRE Centre
where relevant
• AIRE to encourage other
advisors (e.g. CPAG) to refer
requests for advice where
relevant
• Monitoring of the number of
requests for advice
concerning SNCB received
across all three cities
• NGOs to be identified in each
of the three cities
• Separate database of contacts
compiled for each city
• Master database of key
contacts compiled for overall
purpose of project
• Round-tables to be held in
London, Dublin, Amsterdam
UPDATE
ACTIVITY 4 & 5
ACTIVITY
4.
Preparation of
Information
Notes in
multiple
languages
5.
Final Report
DETAIL
ACTIVITIES
4.1
Preparing information notes for EU
Assess what similar types of
migrants and their representatives information notes are currently
and advisers on accessing special available across the three cities
non-contributory benefits.
4.2
Obtain feedback from network of
Translation of the information NGOs as to what would be the
notes into multiple languages
most useful form and content of
4.3
the information note
Launch of information notes at
event in London and through Note for UK to be drafted; format
appropriate channels in Amsterdam to be copied by FLAC and Lize in
and Dublin, as well as through the
accordance with outcomes of
website.
their research
5.
Preparation and publication of a
report about the results of the
Project
To be compiled in draft form
throughout the project
UPDATE
LONDON – 19 JAN 2012
ATTENDEES
AGENDA
9:45 - 10:00
10:00 - 10:50
10:50 - 11:00
11:00 - 12:00
12:00 - 12:10
12:10 - 12:40
12:40 - 13:00
Introduction to the Project and the
Roundtable (Esther)
Introductions by the Project Coordinators
(Saoirse, Lize, Sarah)
Break
Project Staff
EC Regulation 883/04 and Article 10(a):
General Provisions and Background (Adrian
Berry)
Break
Patmalniece, the Right-to-Reside Test and the
EC’s infringement proceedings (Adam Weiss)
Access to Benefits: Victims of Domestic
Violence (Sarah St. Vincent)
Saoirse Brady
FLAC
Karen McLaughlin
FLAC
Lize Glas
Radboud University
Adam Weiss
AIRE
Sarah St Vincent
AIRE
Esther Lieu
AIRE
Participants & Speakers
Adrian Berry
Garden Court Chambers
Saadiya Chaudary
The AIRE Centre
Elena Consiglio
The AIRE Centre
Emma Fenelon
The AIRE Centre
Access to Benefits: Administration, Delays and
Remedies (Martin Williams)
Edward Graham
Child Poverty Action Group
Joe Kitchen
The AIRE Centre
15:00 - 15:10
Break
Jonathan Worboys
The AIRE Centre
15:10 - 16:00
What has happened, what is happening, what
will happen (All)
Logistics (Project Staff)
Martin Williams
Child Poverty Action Group
Omkar Sidhu
The AIRE Centre
13:00 - 13:45
Lunch
13:45 - 14:00
Access to Benefits: Victims of Human
Trafficking and Pregnant women (Esther Lieu)
14:00 - 15:00
16:00 - 16:30
DUBLIN (1st March 2012)
ATTENDEES (In addition to Project Staff)
AGENDA
09:40 – 09:55 Introduction to the Roundtable (Saoirse
Brady, FLAC)
Economic and Social Research Institute
09:55 - 10:00 Introduction from AIRE (Esther Lieu, AIRE)
Crosscare Migrant Project
10:00 – 10:30 Benefits, Payments & Challenges (Saoirse
Brady)
10:30 - 10:45 Migrants’ barriers to Social Welfare (Fiona
Hurley, NASC)
Immigrant Council of Ireland
Independent Consultant
Vincentian Refugee Centre
T. Lyons & Co. LLP
10:45 - 11:20 The Right to Reside Test & AIRE’s Experiences
(Adam Weiss, AIRE)
NASC
11:20 – 11:30 Break
trESS
11:30 - 12:10 Social Welfare Law (Derek Shortall, Barrister)
12:10 – 12:20 Break
12:20 – 13:10 Immigrants’ welfare receipt across the EU
(Corona Joyce & Bertrand Maitre, ESRI)
Threshold
Trinity College Dublin
Caire
Citi Info
13:10 - 13:50 Lunch
Ballymun Community Law Centre
13:50 – 14:05 Presentation (Lize Glas)
Northside Community Law Centre
14:05 – 14:40 Pregnant Women & Victims of Domestic
Violence (Elena Consiglio & Sarah St Vincent)
Dublin 8 & Bluebell CIS
14:40 - 14:50 Break
Pavee Point Travellers’ Centre
14:50 - 15:50 Round-table Discussion
15:50 - 16:00 Conclusion
Irish Traveller Movement Law Centre
Focus Ireland
Law Centre NI
ACTIVITIES - AIRE
•
ROUNDTABLES: London & Dublin
•
TRAININGS: Ghent (Esther) & NAWRA (Adam & Saadiya)
•
ADVICE REQUESTS & SURGERIES: Norfolk (and subsequent case management)
•
LITIGATION / REPRESENTATION: Appeals to UTT (AAC) and TPI in Court of
Appeal / Reference request to CJEU
•
FREEDOM OF INFORMATION REQUEST: 2 (Feb 2012 & April 2012)
•
RESEARCH & MONITORING:
o Dissemination of legislative developments including EC(COM)794, JSA
Regulations (re. DV), Welfare Reform Bill, Infringement Proceedings,
‘common period’
o Dissemination of summaries of trESS Reports, ESRI Reports and other
publications
CASE LAW MONITORING: Spread sheet developed & populated
INFORMATION NOTES: First draft version distributed for feedback
NETWORKING: Regular correspondence with CPAG, RightsNet and other UKbased NGOs working on this area.
•
•
•
SPECIAL NON-CONTRIBUTORY BENEFITS IN THE UK
EC Regulation 883/04, Article 70:
“Characteristics of social security and social assistance”: they look like welfare benefits but also look like one or more
of the following: sickness benefits; maternity and equivalent paternity benefits; invalidity benefits; old-age
benefits; survivors’ benefits; benefits in respect of accidents at work and occupational diseases; death
grants; unemployment benefits; pre-retirement benefits; family benefits.
Annex X, UK Special Non-Contributory Benefits:
•
State Pension Credit (subsistence benefit for those of pension age).
•
Income Support (subsistence benefit for lone parents and certain others).
•
Income-based Jobseeker’s Allowance (subsistence benefit for those seeking work).
•
Disability Living Allowance (mobility component).
•
Income-related Employment and Support Allowance (subsistence benefit for those unable to work). (Later
added to Annex X.)
Social Security (Persons from Abroad) Amendment Regulations 2006
European Economic Area (‘EEA’) nationals may claim social assistance benefits if they are able to pass a two-part test
known as the habitual residence test:
1. Demonstrate that they are actually habitually resident in the United Kingdom (‘where the habitual
centre of their interests is to be found’)
2. Demonstrate that they have a right to reside’ in the UK (and meet the other eligibility criteria that are
imposed on British citizens).
DIRECTIVE 2004/38/EC (transposed into UK legislation by the
Immigration (European Economic Area) Regulations 2006)
Article 6: Right of residence for up to three months
1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months
without any conditions or any formalities other than the requirement to hold a valid identity card or passport.
Article 7: Right of residence for more than three months
1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three
months if they:
a) are workers or self-employed persons (can include part-time work, and job-seekers)
b) have sufficient resources for themselves and their family members not to become a burden on the social
assistance system of the host Member State and have comprehensive sickness insurance cover
c) are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of
its legislation or administrative practice, for the principal purpose of following a course of study, including
vocational training; and have comprehensive sickness insurance cover in the host Member State
d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a),
(b) or (c).
Article 16: Permanent Residence after five years continuous and legal residence
Article 17: Permanent Residence and permanent incapacity / pension age
Regulation 1612/68, Article 12: Primary carer of child in education
BUT: Accession (Immigration and Worker Authorisation) Regulations 2006: certain ‘A2’ nationals (from Romania and
Bulgaria) aresubject to work authorisation requirements in order to exercise a right to reside as a worker; and they are NOT
able to exercise a right to reside as a jobseeker until the end of 2013.
CHALLENGES AND SUCCESSES
PATMALNIECE
It was argued that the right-to-reside test (which British and Irish citizens, but not other EU
citizens, always pass) violates Article 3(1) of Regulation 1408/71 (now Article 4 of Regulation
883/04). Their Lordships found that there was indirect discrimination (unanimous) but (4-1) that
the Secretary of State’s purpose “to protect the resources of the United Kingdom against resort
to benefit or social tourism by persons who are not economically or socially integrated with this
country” was justified, and that the justification itself was blind to a person’s nationality.
INFRINGEMENT PROCEEDINGS
In response to letters from the AIRE Centre and ILPA the European Commission stated that in
their view the Right to Reside test is “contrary to equal treatment guaranteed by Article 3 of
Regulation 1408/71 when it is the reason that a person which is covered by this Regulation is
ineligible for benefit”. In July 2010 the Commission sent a ‘letter of formal notice’ to the UK,
and in September 2011, a ‘reasoned opinion’, giving a deadline of November 2011.
Bristol City Council v FV [2011] UKUT 494 AAC
Claimant (Romanian national) refused housing benefit on grounds that she did not have a
right to reside. She successfully argued that as she sold the Big Issue at her own profit or loss,
she was self-employed. She was then able to claim Housing Benefit from the council to
supplement her income and support her 4 children.
QUESTIONS & DISCUSSION
My contact details:
Esther Lieu
elieu@airecentre.org
00 44 (0) 207 831 4276