EU Law & Homelessness
16th July 2014
Matt Moriarty, Legal Project Manager
&
Rebecca Collins, Project Manager
1
Topics We Will Cover
1. General Residence Rights
2. Rights to claim benefits and other forms of
social assistance
3. Removal and Extradition
4. Exercising Treaty Rights
5. Any other questions…
2
Be aware:
Residence rights and
the ability to claim
benefits/housing are
closely
intertwined…but
different!
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
5
A8 Nationals: Work and Selfemployment
• A8 nationals have always been able to take up selfemployment 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).
6
A8 Nationals: Work and Selfemployment
• 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.
7
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.
8
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 students could
work for up to 20 hours per week.
9
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)
10
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
12
The Habitual Residence Test
‘Actual’
habitual
residence
Not a
person
from
abroad
Right to
reside
The problem will almost always be the rightto-reside test.
13
Seven Ways to Get an EEA National
Social Assistance Benefits
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 are
no longer be eligible for Housing Benefit.
Seven Ways to Get an EEA National Social
Assistance Benefits
#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.
Seven Ways to Get an EEA National Social
Assistance Benefits
#3 Get in to Self Employment
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.
A2 nationals can
be self-employed
without any
restrictions.
Seven Ways to Get an EEA National Social Assistance
Benefits
#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.
Seven Ways to Get an EEA National Social Assistance
Benefits
#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.
Seven Ways to Get an EEA National Social
Assistance Benefits
#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’.
The UK has adopted new laws stating that Zambrano parents
cannot claim benefits. These provisions are being challenged
through the Court of Appeal.
Seven Ways to Get an EEA National Social Assistance Benefits
#7 Show that You are the ‘Primary Carer of the Child-inEducation 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.
An EEA national has
worked in the UK…
and the child lived here
at some point the EEA
parent was working…
and was in compulsory
education at some
point that the parent
was in the UK. Child
and primary carer can
stay and get benefits.
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?
22
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 (i.e. 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 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.
23
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.
24
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):
•
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);
and
•
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 (also see
s.17 of the Children Act 1989). 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.
25
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 are 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, or become involuntarily unemployed after working
here for less than a year.
• EEA nationals who worked for at least a year before becoming involuntarily
unemployed will only be able to retain worker status for more than six months if they
can provide ‘compelling evidence’ that they have a genuine prospect of work.
26
The New Barriers (cont.)
The new minimum earnings threshold means that EEA workers who have earned less than
£150 per week for the past three months will be subject to a ‘fuller assessment’ of
whether their work is genuine and effective when seeking to assert their ‘right to reside’.
Even if the EU law test for ‘genuine and effective’ work is applied under the fuller
assessment, this is likely to result in significant delays in accessing HB, thus increasing the
risk of homelessness for low-income workers.
The Housing Benefit (Habitual Residence) Amendment Regulations 2014 (‘the 2014
Regulations), which took effect on 1 April 2014, provide that new EEA claimants of Income
Based JSA will not be entitled to Housing Benefit unless they can demonstrate that they
have a qualifying right to reside on another basis – for example, through having retained
worker status or through being the family member of an EEA national who is a worker or
self-employed.
Further, EEA nationals cannot rely on a right to reside as a jobseeker in order to access
Homelessness Assistance, an allocation of social housing, or emergency support that may
be available to UK nationals who are homeless. This means that new migrants to the UK
have lost a significant safety-net against homelessness.
27
The New Barriers in practice
We are hearing anecdotally that decision makers in some parts of the UK are interpreting
the 6 month ‘cut-off’ for JSA narrowly – so in order to show genuine chance of work you
actually have to have a job offer in the future, evidenced by a letter from a prospective
employer.
The impact of removing ‘passporting’ to HB hasn’t filtered through. However, many of the
AIRE Centre’s clients – e.g. victims of domestic violence – will face an increased risk of
homelessness when they are no longer able to ‘derive’ a right from a family member.
The DWP has already accepted, in their ‘Equality Analysis’, that the changes to HB are likely
to have a disproportionate impact on:
• EEA nationals aged under 35;
• those from minority ethnic groups;
• those who are single; and
• women, who are ‘more likely to have primary childcare responsibilities, which may
act as a barrier to moving into work’. This, in turn, may lead to a higher risk of
homelessness.
28
The New Barriers & Saint Prix
Prior to the judgment of the Court of Justice of the European Union (‘CJEU’) in the case of
C-507/12 Saint Prix, EEA national women who stopped work in the latter stages of
pregnancy were not recognised as having either worker status or retained worker status in
the UK.
Previously they could, at least, claim both IB-JSA and HB while they were still physically
able to work. Now, even if they register as a jobseeker as soon as they are able to return to
work after giving birth, they will not be able to claim HB. This will place them at greater
risk of homelessness – a risk exacerbated by the fact female single mothers take longer to
find work.
However, the recent judgment of the CJEU should hopefully mean that most women in
these circumstances will retain worker status and presumptively remain entitled to receive
HB when they return to the job market…
29
The New Barriers & Saint Prix
The CJEU found in C-507/12 Saint Prix (on 19 June 2014) that:
‘Article 45 TFEU must be interpreted as meaning that a woman who gives up work, or
seeking work, because of the physical constraints of the late stages of pregnancy and
the aftermath of childbirth retains the status of ‘worker’, within the meaning of that
article, provided she returns to work or finds another job within a reasonable period
after the birth of her child.’
The Court also reaffirmed the primacy of the TFEU over Directive 2004/38, noting that:
’31. … it does not follow from either Article 7 of Directive 2004/38, considered as a
whole, or from the other provisions of that directive, that, in such circumstances, a
citizen of the Union who does not fulfil the conditions laid down in that article is,
therefore, systematically deprived of the status of ‘worker’, within the meaning of
Article 45 TFEU.’
30
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 should 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, with ref. to Saint Prix.)
31
Alternative support
The Nationality and Asylum Act 2002 excludes EEA nationals who have reached the age of
majority from accessing assistance under the National Assistance Act 1948 and the
Children Act 1989 - unless it would breach their rights under the European Convention of
Human Rights or EU law to refuse them such assistance.
EEA nationals who are refused HB and at risk of homelessness or removal from the UK may
increasingly be forced to rely on their convention and/or EU law rights to seek to compel
Local Authorities to provide assistance. In addition to Article 8 of the ECHR, the EU Charter
of Fundamental Rights includes:
• Article 1 (right to human dignity);
• Article 7 (right to respect for private and family life);
• Article 15 (including the right to seek work); and
• Article 34 (right to social security and social assistance).
However, in the AIRE Centre’s experience, where families face homelessness, Local
Authorities often respond by refusing parents support, whilst threatening to take children
into care.
32
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.
Those in the UK for ten years or
more: ‘imperative grounds of
public security’
Permanent residents: ‘serious
grounds of public policy or public
security’
Basic standard: public policy or
public security, ‘present threat to
the fundamental interests of
society’
34
Removal of Homeless
EEA Nationals
•
While EEA nationals make up about 10% of London’s population, they
make up about a third of London’s street homeless.
•
Between 2008 and 2012, the number of enforced removals of EEA
nationals from the UK nearly tripled, from 642 to 1,726.
•
Under Regulation 19(3)(a) of Immigration (European Economic Area)
Regulations 2006, homeless EEA nationals are often treated as not
having a ‘right to reside’ (i.e. not exercising Treaty rights) - and may be
at risk of removal.
•
You may come across a homeless EEA national who has received a
letter (often in her language) from the Home Office saying that they
want to interview her to see if she is exercising Treaty rights…
Removal of Homeless EEA Nationals
(cont.)
The First-tier Tribunal has previously accepted that removing an
economically inactive Czech national who had resided in the UK for five
years and removing a Polish national Big Issue seller who had resided in
the UK for three years would be disproportionate.
In the latter case, Sliwa v SSHD (appeal number IA/20213/2012),
Immigration Judge Martins noted that:
‘once returned to Poland it would simply be a matter of him gathering
enough funds to pay for a return flight or bus ticket to the UK...
His expulsion achieves no legitimate aim even if it is viewed as being in
pursuit of such an aim, it is disproportionate to whatever that aim may be’.
NB: The UK authorities did not seek permission
to take either appeal further.
Detention of Homeless
EEA Nationals
EU law explicitly prohibits the detention of European Union citizens
unless their detention is necessary:
‘A detention order can only be based on an express derogating
provision, such as Article 8 of Directive 73/148, which allows
Member States to place restrictions on the right of residence of
nationals of other Member States in so far as such restrictions are
justified on grounds of public policy, public security or public health’.
[Case C-215/03 Oulane v Minister voor Vreemdelingenzaken en
Integratie, § 41; emphasis added]
In light of this, it is unclear how the UK authorities could ever detain an
EEA national in order to carry out a forced removal solely on the
grounds that (s)he is not exercising residence rights.
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.
Exercising Treaty Rights
What’s Work?
What’s Self-Employment?
• Work only needs to be ‘genuine and effective’. Wages do not need to meet the
minimum subsistence level and 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 not need to be registered with HMRC in order to count for
the purposes of EU free movement law.
40
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 selfemployed 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.
41
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.
42
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 or pregnancy (see Article 16 of Directive 2004/38).
• It should be 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. (Article 17 of Directive 2004/38)
… Ask AIRE if this comes up.
43
Permanent Residence (cont.)
• Following the recent decision of the Upper Tribunal in Jovita Ojo, the
notion of ‘absence’ currently applies to periods spent not exercising
Treaty rights whilst in the UK as well as physical absence from the UK.
• Permanent residence is only lost after two continuous years of absence
from the UK under Article 16. (Arguably, it should not even be lost
after longer absences under Article 17.)
• The right is automatic – the EEA national doesn’t need to obtain any
kind of document from the Home Office, although s/he can apply for
one … and, particularly in the case of vulnerable people, probably
should!
44
Homelessness and self-sufficiency
• Following the recent decision of Judge Ward in VP v Secretary for Works
and Pensions (JSA) [2014] UKUT 32 (AAC) (23 January 2014), it will be
very difficult to argue that periods of homelessness ‘count’ as selfsufficiency for the purpose of acquiring permanent residence:
84. … In my view the question, whenever asked, remains: was the
person at the beginning of year 1 – and in principle at any other times
in the period – able to show sufficient resources to meet the test? I
do not accept that a person who could not meet the test on that basis
could simply lie low for five years and through a combination of luck
and an unusually frugal lifestyle avoid being any kind of burden to the
social assistance system and then argue that they have
retrospectively shown that they had throughout had the resources to
be self-sufficient…
45
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
46
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.
47
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 custody of 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, selfemployed person or self-sufficient person until 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
involved in ongoing litigation
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.
54
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.
55
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 selfemployed.
‘What emerges from all this is a cooperative 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.’
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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)
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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.
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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.
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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.
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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)
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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
• Francovich damages claims
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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.
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Two Additional Ways to Get an EEA
Trafficking Victim Social Assistance
Benefits
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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.
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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)
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