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Transcript of Migrants and Benefits 2014
Migrants and benefitsan advisers guide
Law Centre (NI)for Belfast Integration and Participation Project
Page 2 | Migrants and benefits
This project is supported under the Belfast Peace III Plan by the European Union’s European Regional Development Fund through the Peace III Programme
Migrants and Benefits - An Adviser’s Guide
Patricia Carty
Published by Law Centre (NI) on behalf of Belfast Integration and Participation Project
February 2014
ISBN 978-1-872299-29-7
© Law Centre (NI) and Belfast Integration and Participation Project 2014
All rights reserved. No part of this publication may be reproduced, stored on any retrieval system or
transmitted in any form by any means, including photocopying and recording, without the prior written
permission of Law Centre (NI).
Disclaimer: Although every effort is made to ensure the information in Law Centre publications is accurate,
we cannot be held liable for any inaccuracies and their consequences.
The information should not be treated as a complete and authoritative statement of the law.
Law Centre (NI) only operates within Northern Ireland and the information in this document is only relevant to
Northern Ireland law.
When reading Law Centre documents, please pay attention to their date of publication as legislation may
have changed since they were published.
This document contains complex legal concepts and is targeted
at advisers. Anyone seeking further advice and information
may contact the Law Centre’s advice line:
028 9024 4401 or 028 7126 2433
Monday to Friday, 9.30am to 1pm
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Contents
General information about advising migrants
Office of Immigration Services Commissioner
Who can give immigration advice
Checking a person’s immigration status
Different categories of migrants
Technical words and phrases
1.0 Non EEA nationals and benefits
1.1 Immigration status
1.2 Person subject to immigration control
1.2.1 Public funds
1.3 Employment related benefits that can be claimed by a person subject to
immigration control
1.4 Means tested benefits: Income Support, Income-based Jobseeker’s Allowance,
Income-related Employment and Support Allowance, Pension Credit, Housing
Benefit, Universal Credit - person subject to immigration control
1.5 Non-means tested benefits: Attendance Allowance, Carer’s Allowance, Child
Benefit, Disability Living Allowance, Employment and Support Allowance in
Youth, Personal Independence Payment, Severe Disablement Allowance -
person subject to immigration control
1.6 Tax credits - person subject to immigration control
1.7 Families where some members are subject to immigration control and some
are not
1.7.1 Income Support, Income-based Jobseeker’s Allowance, Income-related
Employment and Support Allowance
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1.7.2 State Pension Credit
1.7.3 Housing Benefit
1.7.4 Child Benefit
1.7.5 Disability Living Allowance
1.7.6 Tax credits
1.7.7 Universal Credit
1.8 Refugees and benefits
1.8.1 Refugees and Income Support
1.8.2 Refugees and tax credits, Child Benefit, Guardian’s Allowance
1.8.3 Fast track procedure for tax credit claims
2.0 EEA nationals and benefits
2.1 The habitual residence and right to reside test
2.1.1 Exempt groups
2.1.2 Habitual residence – the factual test
2.1.3 Factors relevant to establishing the habitual residence
2.1.4 Resuming habitual residence
2.1.5 EU law and resuming habitual residence
2.1.6 Benefit entitlement where a person fails the habitual residence test
2.1.7 Couples where one person is habitually resident
2.1.8 How to challenge a habitual residence decision
2.1.9 Right to reside
2.1.10 Transitional protection for claims pre-dating 30 April 2004
2.1.11 Excluded rights of residence
2.1.12 EU law rights of residence
2.1.13 What to do if a person is found not to be a person with a right to
reside
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2.2 The ordinary residence and right to reside test - Child Benefit and Child Tax
Credit
2.2.1 Initial three month right of residence – Child Benefit and Child Tax Credit
2.3 Ordinary residence and past presence rules – Attendance Allowance, Disability
Living Allowance and Carer’s Allowance
2.4 Contribution-based benefits and employment related benefits and residence
3.0 EU Regulation on co-ordination of social security systems
3.1 Introduction
3.2 Who is covered by Regulation 883/2004/ Personal scope
3.3 What is covered by Regulation 883/2004/ Material scope
3.4 Social security benefits under EC Regulation 883/2004
3.5 Competent state rules
3.6 Equal treatment
3.7 Aggregation
3.8 Apportionment
3.9 Exporting benefits under EC Regulation 883/2004
3.9.1 Benefits exportable on an indefinite basis
3.9.2 Benefits exportable for a limited period or subject to restrictions
3.10 Overlapping benefit rules
Appendix 1: Rules affecting Croatian nationals
Appendix 2: Rules that affected nationals of Bulgaria and Romania until 31
December 2013
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General information about advising migrants
Any adviser can try to establish a person’s immigration status by checking the person’s
passport or other documents issued by the Home Office. However, it is a criminal offence to
give immigration advice or provide immigration services, unless you are a solicitor or a
barrister or your organisation is authorised to do so by the Office of the Immigration Services
Commissioner.
The Office of Immigration Service Commissioner
The Office of the Immigration Services Commissioner (OISC) is an independent, non-
departmental public body set up under the Immigration and Asylum Act 1999. The OISC’s
primary role is to regulate the circumstances when an adviser can give immigration advice or
provide immigration services.
Who can give advice?
If you are a solicitor or a barrister or your organisation is regulated by the OISC then you can
give immigration advice. The OISC regulations mean that most advisers are permitted to
advise only at a general level (Level 1 adviser or a non-specialist adviser). There are some
organizations, including Law Centre (NI), that are able to give specialist advice (level 2 and 3).
Generally an adviser regulated by the OISC can be a non-specialist adviser (level 1) or a
specialist adviser. If your organisation can provide non-specialist advice then you can explain
the process to clients and can advise on straightforward applications, such as when a person
is applying for further leave to remain as a student. However, if the person’s circumstances
are not straightforward, then the application must be handled by a specialist adviser, for
example if the person is an overstayer or the application is outside the rules. If you are
unsure whether you can advise the person, then you should contact the OISC’s Advice
Session Supervisor.
If your organisation is interested in giving non-specialist advice or would like to provide
specialist advice, then you should contact the OISC.
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How to check a person’s immigration status
You can ask to see a person’s travel document, such as a passport or any document or letter
that a person may have that shows her/his immigration status. You should look at a:
Passport - If the person is a non-EEA national (ie not a national of the European Economic
Area), then her/his passport should have a stamp or a residence permit or a Biometric
Residence Permit (BRP) that shows her/his present immigration status.
Right of abode certificate - This is very unusual and shows that the holder has a right of
abode.
Any Home Office document - For example a letter stating that the person has been given
indefinite leave to remain in the UK.
A Biometric Residence Permit (BRP) - The Home Office has been issuing BRPs since
November 2008 and a BRP can be used as an identity document.
Residence card/registration certificate held by European nationals and members of their
family.
A blue travel document (carried by people who have refugee status) or a brown travel
document (carried by some people with Humanitarian Leave to Remain)
Examples of a stamp, a residence permit and a Biometric Residence Permit
If someone has been given leave to enter or remain in the UK, there will usually be a stamp
in the passport. The older stamps look like this:
Leave to enter for/until
SIX MONTHS
No work or recourse to public funds
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A Residence Permit looks like this:
The newer Biometric Residence Permit (or BRP) looks like this:
However, the above documents may not establish the person’s present immigration status
and you will need to ask some questions to confirm whether or not the person has a right to
reside in the UK. The most common questions are:
Where was the person born?
Are her/his parents British citizens or Irish citizens?
Is the person an EEA national or the family member of an EEA national who is exercising
Treaty rights?
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On what basis did the person obtain leave to enter or remain in the UK? For example, is
she/he a visitor, student or a migrant worker under the PBS?
Does the person have limited leave to remain in the UK or Indefinite Leave to Remain?
Different categories of immigration status:
Right of Abode: Commonwealth citizens with right of abode have the same rights in the UK
as British citizens (see above). They are free from immigration control. They should have
either:
a Certificate of entitlement to right of abode (CERA), which looks like this:
or a stamp in their passport saying:
Holder has the right of abode in the United Kingdom;
or
Holder is entitled to readmission to the United Kingdom.
Categories under the Immigration Rules
Under UK law, the Immigration Rules set out the various ways a person can obtain leave to
enter or remain in the UK. The most common examples are:
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The partner or minor child of a British Citizen or a person settled in the UK - The person can
either have limited leave to enter or limited leave to remain in the UK. The BRP will refer to
their relationship and will state that there is no recourse to public funds.
Visitor - The visitor will usually be issued entry clearance or have a stamp on entry allowing
her/him to stay in the UK for up to six months. The stamp or the BRP will also state that the
person is prohibited from working in the UK and cannot have ‘recourse to public funds’.
Points-Based System:
Tier 1 - allows highly skilled persons to work or look for work in the UK. However, this
category is presently closed for anyone outside the UK and for most persons in the UK under
a different category.
Tier 2 - The Tier 2 (General) category is for non-EEA nationals who have been offered a
skilled job to fill a gap in the workforce that cannot be filled by an EEA national or a person
settled in the UK.
Tier 4 - sets out the requirements for non EEA national adults who wish to come to the UK
for their post-sixteen education.
If a person has been given leave to enter or remain in the UK under the Points-Based System
(PBS), the BRP will state what Tier she/he comes under and will clarify what employment
she/he is allowed to undertake and whether that employment needs to be authorized by the
Home Office UK Border Agency. In addition the BRP will state that the person cannot have
recourse to public funds.
There is also the possibility that people who have been granted leave to enter or remain
under the PBS can bring their dependants into the UK (spouse and minor children).
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Technical words and phrases
There are some technical words and phrases that have a particular meaning. Here is a brief
explanation of some of those that are used in the Guide.
Accession States / A8 nationals / A2 nationals – in the UK, ‘A8’ is the term given to eight of
the ten countries that joined the European Union in May 2004. These countries are: Czech
Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovak Republic and Slovenia. If you are
a citizen of one of these countries you are known in the UK as an Accession State national or
‘A8 national’. The term ‘A2 nationals’ refers to nationals of the two countries which joined
the European Union (EU) in January 2007 – Romania and Bulgaria. Nationals of A8 and A2
states now have full EU law rights. Croatia joined the EU on 1 July 2013 as an Accession State
and nationals of Croatia are subject to the Worker Authorisation Scheme (see below).
Asylum seeker – a person who has applied to the Home Office for refugee status.
Biometric Residence Permit – a document issued by the Home Office that confirms a person
has the right to be in the UK.
Common Travel Area – the United Kingdom (including Great Britain and Northern Ireland),
the Isle of Man, the Channel Islands and the Republic of Ireland. The Common Travel Area
means that there are no passport controls in operation for Irish and UK citizens travelling
between the two countries.
(The) Department – the government department responsible for paying benefits, which is
the Department for Social Development in Northern Ireland, and the Department for Work
and Pensions in England, Scotland and Wales.
Discretionary Leave to Remain – A decision by Home Office allowing a person to stay in the
UK, even though she/he does not meet the requirements of the Immigration Rules.
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Entry clearance – citizens of most countries need to obtain permission from the Home Office
before entering the UK. This permission is referred to as ‘entry clearance’.
EEA national – the European Economic Area (EEA) is made up of the EU which has 28
member states (Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark,
Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania,
Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain,
Sweden, and the United Kingdom), and three European Free Trade Association (EFTA) states
(Iceland, Liechtenstein and Norway). Swiss nationals have similar rights.
EU – European Union (Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic,
Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia,
Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia,
Slovenia, Spain, Sweden, and the United Kingdom)
European treaty right – This refers to the status an EEA national has when she/he can stay in
the UK under European law. It includes when an EEA national is working for an employer,
self-employed, a student, self-sufficient or a jobseeker or is the family member of such a
person.
EU residence documents
If a person is an extended family member she/he must have a residence document in order
to have a right to reside under EU law. EU residence documents are issued by the Home
Office.
In other cases it is not necessary to obtain EU residence documents, however such
documents are useful confirmation of a person’s status where any dispute arises. Under EU
law the document simply confirms the person’s right of residence, it does not confer it. Also
if the person’s circumstances have changed a residence document will not give the person a
right to reside if, on the facts, that right to reside has ended.
EU residence documents are issued by the Home Office. Forms and information are available
on the Home Office website. There are a number of different documents depending on a
person’s circumstances. These are:
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a Registration Certificate – this applies where the person is an EEA national with a right
of residence under the EEA Regulations;
a residence card – this applies where the person is a non EEA national with the right to
reside as the family member of an EEA ‘qualified person’ or an EEA national who has a
permanent right of residence;
a derivative residence card – this applies where the person is an EEA national with a
derivative right to reside, for example as the primary carer of a worker’s child in
education;
a document certifying permanent right of residence – this applies where the person is
an EEA national;
a permanent residence card – this applies where the person is a non EEA national.
Extended family member of an EEA national – Extended family members are treated as
family members (see below) and will have the same rights as family members, if issued with
an EEA family permit, a registration certificate or a residence card. Extended family member
covers:
a partner in a durable relationship;
a person who is dependent upon the EEA national or is a member of her/his household;
a relative of an EEA national/ spouse or civil partner, who on serious health grounds
needs the personal care of the EEA national/ spouse or civil partner.
Family member of an EEA national – A family member includes:
a spouse or civil partner of an EEA national (a person remains a spouse or civil partner
even if separated and will only cease to be such upon divorce or legal termination of the
civil partnership);
a child, dependent grandchild or great grandchild of the EEA national/spouse or civil
partner of EEA national who is under 21 or dependent (this definition will cover step-
children);
a dependent parent, grandparent or great grandparent of an EEA national, her/his
spouse/civil partner.
NOTE: Family member of a student – The definition of family member restricts the definition
of family member of a student after the initial three month period to her/his spouse or civil
partner, a dependent child of the student or her/his spouse or civil partner unless the
student falls within another category of Qualified Person.
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Her Majesty’s Revenue and Customs (HMRC) – the official name for the UK Tax Office.
Illegal entrant – a person who has entered the UK unlawfully. For example, she/he entered
the UK clandestinely or used a false travel document to enter the UK. The Home Office will
have given the person a document stating that she/he is an illegal entrant.
(The) Immigration Rules – a set of rules that set out the circumstances when a person can
enter and remain in the UK. The rules are regularly amended and an up to date version can
be found under policy and law on the website of the Home Office.
Indefinite Leave to Remain – is the status of a person who no longer has any conditions
attached to her/his leave to remain in the UK. This is also known as permanent residence or
settled status.
Limited leave to enter/remain in the UK – the status of a person whose leave to
enter/remain in the UK will expire on a certain date (shown on the stamp or vignette).
Generally a person with limited leave to enter/remain in the UK will also be prohibited from
working and/or from having recourse to public funds.
National Insurance – a tax paid from wages and salaries in the UK which is used to finance
some social security benefits.
National Insurance number – a number issued by the Social Security Agency, which a person
must apply for if she/he intends to work in the UK and if she/he wishes to claim social
security benefits.
Northern Ireland Housing Executive (NIHE) – the government agency responsible for
allocating government owned housing and for offering advice to homeless persons on finding
suitable accommodation.
Overstayer – a person who had leave to enter the UK, but her/his leave has now expired. If
the person has applied for further leave to remain in the UK prior to the expiry of her/his
leave and the application has not been determined by UKBA, then she/he is not an
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overstayer. Her/his leave to remain in the UK will continue until the application has been
finally determined.
Points-Based System (PBS) – the scheme for non-EEA migrant workers entering the UK for
employment which from 2008 was brought in to replace the previous work permits and
other schemes.
Public funds – refers to certain funds provided by the government, such as Income Support.
If you are in the UK under the Points-Based System it is unlikely that you will have access to
those benefits that count as public funds, and you should always seek specialist advice
before making a claim to any social security benefit. See section 1 on Non EEA nationals and
benefits for further details.
Refugee – is a person who is at risk of suffering serious harm in her/his country of origin.
Remove/removal – the act of the government to move a foreign national from the UK to a
certain place, usually her/his home country if she/he is unlawfully in the UK or she/he is not
entitled to enter the UK.
Social Security Agency – the government agency responsible for issuing National Insurance
numbers and social security benefits.
Social security benefit – money provided by the government to help some individuals in
financial difficulty.
United Kingdom (the UK) – official name for the state consisting of the island of Great Britain
(England, Scotland and Wales) and Northern Ireland.
Visa – permission to enter the UK; will usually be issued in the form of a stamp (or a vignette)
in a person’s passport.
Work permit – a form of permission formerly granted by Work Permits (UK), a branch of the
Home Office, which allowed non-EEA nationals to work in the UK for a particular employer.
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Worker Authorisation Scheme – a scheme set up by the UK government which requires
Croatian nationals to apply for permission to work before starting to work for an employer in
the UK. This scheme does not apply to Croatian nationals who are self-employed or students.
The Worker Authorisation Scheme applied to Bulgarian and Romanian nationals until 31
December 2013 when restrictions ended.
Worker Registration Scheme – the scheme which ran from 2004 to April 2011 through which
A8 nationals had to register their employment with the Home Office for the first twelve
months of being employed. It did not apply to A8 nationals who were self-employed.
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1.0 Non-EEA nationals and benefits
1.1 Immigration status
It is important to know a person’s immigration status and the immigration status of each
member of her/his household before advising on entitlement to benefits. This is because a
person’s immigration status can affect her/his entitlement to benefits and tax credits. If a
person is defined as a person subject to immigration control, she/he will be excluded from
most benefits and tax credits.
In some circumstances making a claim for benefit or receiving benefit for a person who is
excluded due to immigration status can have serious consequences for the person’s right to
remain in the UK.
An EEA national is not a person subject to immigration control. If a person and every
member of her/his household is an EEA national, then the rules in this section will not apply.
However, EEA nationals, including UK nationals, must satisfy the rules on residence which are
set out in section 2.
This section covers:
the rules on who is a person subject to immigration control for benefit purposes;
which benefits a person subject to immigration control will be entitled to claim;
the entitlement of couples to benefits where one person is a person subject to
immigration control.
1.2 Person subject to immigration control
A person is not a ‘person subject to immigration control’ if she/he is a:
British citizen;
person with a right of abode;
EEA national;
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refugee;
person with discretionary leave to enter or remain;
person with indefinite leave to enter or remain (but not if she/he is the subject of a
formal undertaking).
For benefits and tax credits, a person subject to immigration control means a person who is
not a national of an EEA state and who:
(a) requires leave to enter or remain in the UK but does not have it;
(b) has leave to enter or remain which is subject to a condition that she/he does not have
recourse to public funds;
(c) has leave to enter or remain given as the result of a maintenance undertaking;
(d) has leave to enter or remain solely because she/he is appealing a decision to refuse
to vary a previous decision on leave.
(a) requires leave to enter or remain in the UK but does not have it
Examples include where a person:
is an asylum seeker with temporary admission;
has overstayed her/his limited leave to remain;
has entered the UK illegally;
is subject to a deportation order.
These are just a few examples. Seek specialist advice if a person is refused social security
benefits or tax credits due to being a person subject to immigration control or if contacted by
a person who these rules may apply to.
There are close links between the Home Office and benefit authorities. Making a claim for a
benefit or tax credit may alert the Home Office to a person’s presence in UK and could result
in deportation.
(b) has leave to enter or remain in the UK which is subject to a condition that she/he does
not have recourse to public funds
Examples include people admitted to the UK with time limited leave such as spouses/civil
partners, students or visitors who are given limited leave on the condition that they do not
have recourse to public funds (see section 1.2.1 for what is counted as ‘public funds’).
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Such a person will usually have a stamp on her/his passport that she/he is not permitted to
have recourse to public funds. See below for example.
(c) has leave to enter or remain in the United Kingdom given as a result of a maintenance
undertaking;
A maintenance undertaking is a written undertaking given by a person to be responsible for
the maintenance and accommodation of another person coming to the UK. It is sometimes
known as a ‘sponsorship agreement’. Where an elderly relative is seeking to join family in
the UK, the Home Office will usually require a maintenance undertaking. If there is any
doubt about whether the person’s leave was given as a result of an undertaking then she/he
should take specialist immigration advice.
(d) Leave to enter or remain is being extended while they appeal against a refusal to vary
leave.
An example of this is where a person has appealed a decision to vary leave which she/he
previously had.
A person affected by this rule should seek further specialist advice.
1.2.1 Public funds
The list of excluded public funds is contained in the Immigration Rules. This list is subject to
change and should be checked before advising a person to make a claim for a tax credit or
benefit.
At the time of writing the following benefits are public funds:
Attendance Allowance;
Carer’s Allowance;
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Child Tax Credit;
Disability Living Allowance;
Income-related Employment and Support Allowance (ESA);
ESA in youth;
Housing Benefit;
Incapacity Benefit for incapacity in youth;
Income-based Jobseeker’s Allowance;
Income Support;
Pension Credit;
Personal Independence Payment (to be introduced in Northern Ireland some time in
2014);
Severe disablement Allowance;
Social Fund payment;
Universal Credit (due to be introduced in Northern Ireland some time in 2014);
Working Tax Credit.
Homelessness assistance and social housing, for example Northern Ireland Housing Executive
and Housing Association accommodation, are also defined as public funds.
If a benefit does not appear on the public funds list, then it will not be treated as a public
fund and a person subject to immigration control may be able to claim it. Also if a person
comes within an exception see sections 1.4 to 1.6, she/he will not be regarded as having
recourse to public funds.
Having recourse to public funds when a person is subject to immigration control can have
serious implications for her/his permission to remain in the UK. This applies even if the
claim for benefit is refused. Having recourse to public funds in breach of leave conditions can
result in deportation, refusal of any future applications for leave to remain, and prosecution.
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1.3 Employment related benefits that can be claimed by a person
who is a ‘person subject to immigration control’
A person who is a ‘person subject to immigration control’ may claim any benefit that is not
listed as a public fund.
These include benefits that are based on prior national insurance contributions including:
Contribution-based Jobseeker’s Allowance;
Contribution-based Employment and Support Allowance; and
State Retirement Pension.
A person subject to immigration control may also claim employment related benefits such
as:
Statutory Sick Pay;
Statutory Maternity Pay;
Statutory Paternity Pay;
Statutory Adoption Pay;
Maternity Allowance;
Industrial Injuries Benefits.
EXAMPLE
Khaled is a person subject to immigration control: his visa which permits him to
work states that he must not have recourse to public funds. He is severely disabled
in an accident in the hospital where he works. He is entitled to claim Industrial
Disablement Benefit as well as Statutory Sick Pay. If he satisfies the national
insurance contribution conditions he will be entitled to claim Contribution-based
Employment and Support Allowance when his Statutory Sick Pay ends. He will not
be entitled to means tested benefits or to Disability Living Allowance.
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Some provisions in the Welfare Reform Bill (which is currently passing through the Northern
Ireland Assembly and is due to become law some time in 2014) will restrict entitlement to
the benefits listed above to those who have a right to work in the UK. Where a person may
be affected by such a change, an adviser should contact the Law Centre’s advice line.
1.4 Means tested benefits: Income Support, Income-based
Jobseeker’s Allowance, Income-related Employment and Support
Allowance, Pension Credit, Housing Benefit, Universal Credit -
person subject to immigration control
In the limited circumstances set out below, it will be possible for a person who is a ‘person
subject to immigration control’ to receive:
Income support;
Income-based Jobseeker’s Allowance;
Income-related Employment and Support Allowance;
Pension Credit;
Housing Benefit;
Universal Credit (once it is introduced some time in 2014).
This will apply where the person:
has leave to enter or remain given as a result of a maintenance undertaking and she/he
has been resident in UK for at least five years;
has leave to enter or remain given as a result of a maintenance undertaking and the
person who gave the undertaking has died;
is a national of Macedonia or Turkey and is lawfully present in UK. This may apply where
a person has leave to enter or remain for a period which means she/he is lawfully
present. However, such people will have to satisfy the habitual residence and right to
reside test set out in section 2 and temporary admission does not give a person a right to
reside.
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1.5 Non-means tested benefits: Attendance Allowance, Carer’s
Allowance, Child Benefit, Disability Living Allowance, Employment
and Support Allowance in Youth, Personal Independence Payment,
Severe Disablement Allowance - person subject to immigration
control
A person who is ‘a person subject to immigration control’ will not be excluded from:
Attendance Allowance (AA);
Carer’s Allowance;
Child Benefit;
Disability Living Allowance (DLA);
Employment and Support Allowance in Youth (due to be abolished in 2014);
Personal Independence Payment (due to be introduced some time in 2014);
Severe Disablement Allowance;
if she/he:
is the family member of an EEA national, including a British citizen;
is a national or family member of a national of Algeria, Morocco, San Marino, Tunisia or
Turkey who is lawfully working in the UK or who has stopped lawfully working due to
pregnancy, childcare, illness or accident or because she/he has reached retirement age;
has leave to enter or remain given as a result of a maintenance undertaking;
(for DLA, AA and Child Benefit only) is covered by a reciprocal agreement;
was in receipt of benefit before 5 February 1996 (7 October 1996 for Child Benefit).
EXAMPLE
Jill is a person subject to immigration control. She is a citizen of the United States
who entered Northern Ireland under a two year spousal visa which stated that she
must have no recourse to public funds when she joined her English husband who
had taken up employment in Northern Ireland. She is severely disabled. Although
Disability Living Allowance is listed as a public fund, she is entitled to claim it
because she comes within the exception that she is a family member of an EEA
national as her English husband is an EEA national.
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1.6 Tax credits and person subject to immigration control
NOTE: If a person is ‘a person subject to immigration control’ but her/his partner is not, or
her/his partner comes within one of the exceptions set out below, it will be possible to make
a joint claim for tax credits, see section 1.7.6
A person who is ‘a person subject to immigration control’ will not be excluded from
entitlement to:
Child Tax Credit;
Working Tax Credit (WTC);
if she/he:
has leave to enter or remain given as a result of a maintenance undertaking and she/he
has been resident in the UK for at least five years;
has leave to enter or remain given as a result of a maintenance undertaking and the
person who gave the undertaking has died;
(WTC only) is a national of Macedonia or Turkey and is lawfully present in UK. This may
apply where a person has leave to enter or remain for a period which means she/he is
lawfully present. However such people will have to satisfy the habitual residence and
right to reside test set out in section 2 and temporary admission does not give a person a
right to reside.
(for up to 42 days in the period of leave) has limited leave with a condition that she/he
does not have recourse to public funds, has not had such recourse to public funds, but
funds that are reasonably expected from abroad have been temporarily interrupted.
1.7 Families where some members are subject to immigration
control and some are not
Different rules apply to specific groups of benefits where a member of a household is a
person subject to immigration control. Advisers should carefully consider sections 1.7.1 to
1.7.7.
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1.7.1 Income Support/Income-based Jobseeker’s Allowance/ Income-related
Employment and Support Allowance
Where a person claiming has a partner who is a person subject to immigration control, the
partner will be included in the claim as a member of the household and the person claiming
will only be paid the single rate of a personal allowance, unless the partner falls within one of
the groups set out section 1.4 that can claim means tested benefits.
However, even though no amount will be paid for the partner who is a person subject to
immigration control, she/he will be treated as part of the claimant’s household and her/his
work, income and capital will affect benefit entitlement and will mean that the claimant will
not qualify as a lone parent and may not be entitled to a Severe Disability Premium. If a
person who is not a person subject to immigration control is entitled to a premium, this may
be paid at a couple rate. However, this is something to be cautious about as it may lead to a
partner who is a person subject to immigration control being regarded as having had
recourse to public funds.
EXAMPLE
Samuel is a British citizen. He is entitled to Disability Living Allowance, Income-
related Employment and Support Allowance and Housing Benefit. His wife Lee Ping
joins him from Thailand. She is a person subject to immigration control as her
spousal visa states that she must not have recourse to public funds. Samuel will
continue to receive Income-related Employment and Support Allowance but will
receive the personal allowance at the single rather than couple rate. He will lose
the severe disability premium of Income-related Employment and Support
Allowance as his wife is taken into account as part of his household.
1.7.2 State Pension Credit
Different rules apply to State Pension Credit. Where a person claiming has a partner who is a
person subject to immigration control, then that person will not be included as part of the
household in benefit calculations. This means that the claimant will be paid as a single
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person and her/his partner’s income and capital will not be taken into consideration. It may
also be possible to argue that the claimant should be entitled to continue to receive any
additional amount for severe disability.
EXAMPLE
Ruby is a British citizen. She is entitled to State Pension Credit and Attendance
Allowance. Her husband Tarik joins her from Turkey. He is a person subject to
immigration control as his two year spousal visa states that he must not have
recourse to public funds. Ruby will continue to receive State Pension Credit paid at
a single rate. Her husband’s savings of £20,000 will not be taken into consideration
and will not affect her entitlement as he is not included as a member of her
household under State Pension Credit rules. Arguably she should continue to
receive the severe disability addition of State Pension Credit as her husband is not
included as a member of her household.
1.7.3 Housing Benefit
If a claimant’s partner or a child in the household is a person subject to immigration control,
Housing Benefit will include amounts for the partner/child. This can lead to difficulties
because if that partner or child’s leave (immigration status) states that she/he must not
have recourse to public funds, receipt of extra amounts of Housing Benefit could affect
her/his right to remain in the UK. It is advisable to make it clear in any claim for Housing
Benefit that the person’s leave states that she/he is not to have to recourse to public funds
and to expressly request that the award does not include an amount for that person.
1.7.4 Child Benefit
If a claimant is not a person subject to immigration control, it will be possible to claim for a
child for whom the person is responsible even if that child is a person subject to immigration
control. This is because it is only the immigration status of the person claiming that is
relevant.
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EXAMPLE
Matthew is a British citizen. His partner Fatima is an asylum seeker. She has one
child. Matthew will be entitled to claim Child Benefit for the child even though the
child is regarded as a person subject to immigration control.
1.7.5 Disability Living Allowance
If a child who is not a person subject to immigration control is the claimant, she/he will not
be excluded from claiming where her/his responsible adult is a person subject to
immigration control.
A person who is subject to immigration control will be entitled to claim Disability Living
Allowance if she/he is the family member of an EEA national.
1.7.6 Tax credits
Couples with children will be paid Child Tax Credit and Working TaxC at a couple rate even
where one member of the couple is a person subject to immigration control. Any child for
whom the person is responsible will be included in the claim and will receive payment even if
the child is a person subject to immigration control. Such payments are not regarded as
having had recourse to public funds
EXAMPLE
Alex is a British citizen who is working in Northern Ireland. His partner Ivanna is a
person subject to immigration control as she is Russian and her visa states that she
must not have recourse to public funds. Alex and Ivanna must make a joint claim
for tax credits as a couple and will be paid at a couple rate for Working Tax Credit
and Alex will be able to claim Child Tax Credit for Ivanna’s two children.
Couples without children will claim working tax credit as a couple but, where one member
of the couple is a person subject to immigration control, the couple element will not be paid.
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EXAMPLE
Ibrahim is a British citizen who is working in Northern Ireland. His wife Fatima is a
person subject to immigration control as her two year spousal visa states that she
must not have recourse to public funds. Ibrahim and Fatima must make a joint
claim for tax credits but will not be paid the couple element as they have no
children. Fatima is pregnant. When her baby is born the couple’s award of tax
credits will be amended to include the couple element and they will be entitled to
Child Tax Credit.
1.7.7 Universal Credit (due to be introduced some time in 2014)
If a claimant’s partner is a person subject to immigration control and is not in one of the
exceptions set out at section 1.4, then the person making the claim will claim as a single
person, but the partner’s income and capital will be taken into account.
This is less favourable than the current position under tax credits.
Claimants may experience problems where a mixed status couple is being migrated onto
Universal Credit. As a general rule when tax credits claims are migrated to Universal Credit
there will be transitional payments ensuring that Universal Credit will be paid at a rate
equivalent to any previous tax credit award. It is unclear whether this will apply in
circumstances where one member of a couple is a person subject to immigration control.
1.8 Refugees and benefits
A refugee is not a person subject to immigration control for benefit purposes. Refugees are
entitled to claim benefits. However, a person who has applied for refugee status is known as
an asylum seeker and asylum seekers come within the ‘person subject to immigration
control’ rules until refugee status is granted.
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1.8.1 Refugees and Income Support
A refugee can claim Income Support for up to nine months while studying if she/he:
attends a course for more than fifteen hours per week aimed at learning English for the
purpose of getting employment;
has been in Northern Ireland for not more than twelve months when the course begins.
1.8.2 Refugees and tax credits, Child Benefit and Guardian’s Allowance
A person who has been granted refugee status can claim tax credits, Child Benefit and
Guardian’s Allowance and have them backdated to the date of asylum application.
Tax credits must be claimed within one month and Child Benefit and Guardian’s Allowance
must be claimed within three months of receiving the letter from the Home Office granting
leave as a refugee.
The amount of tax credits will be reduced by the amount the person received from National
Asylum Support (NASS) for support and this may cancel out tax credit entitlement. However,
the claim should be made and potential entitlement explored.
NOTE: The amount of Child Benefit or Guardian’s Allowance is not reduced by the amount of
asylum support received.
EXAMPLE
Abdi is awarded refugee status on 9 October 2013. She has two children and makes
claims seven days later for Child Benefit and Child Tax Credit. Her Child Benefit and
Child Tax Credit are backdated to the date of her asylum claim but her Child Tax
Credit payment is reduced by the amount of NASS support which she received. In
contrast, her friend Amal who also received refugee status on 9 October 2013
claimed Child Benefit and Child Tax Credit four months later. Her Child Benefit is
backdated for three months and her Child Tax Credit is backdated for 31 days.
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1.8.3 Fast track procedure for tax credit claims
Refugees who are making claims for Income-based Jobseeker’s Allowance or Income-related
Employment and Support Allowance or Income Support are now able to ask to make a fast
track claim for tax credits through the Jobs and Benefits Office. Under fast track claims,
HMRC aims to process claims and make payments in ten working days.
There is still a lack of awareness in local Jobs and Benefits Offices about the fast track
procedure. Contact the Law Centre for further information and guidance if necessary.
NOTE: When a person is granted refugee status, it is important that advisers arrange for
appropriate claims to benefits without delay. This is because NASS support will be
withdrawn after 28 days and it will take some time for claims for benefit to be made and
processed. Time is of the essence. Contact the Law Centre for advice and assistance where
difficulties arise.
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2.0 EEA nationals and benefits
Many benefits and tax credits have residence and/or presence conditions. These rules vary
between different benefits. General information about who is an EEA national and who is
the family member of an EEA national is set out in the section on technical words and
phrases (see pages 10 to 14). There is also information in that section about EU residence
documents.
This section covers:
habitual residence and right to reside;
ordinary residence and right to reside;
contribution-based and employment benefits and residence.
Special rules currently apply restricting the right to reside of Croatian nationals until 1 July
2018. These rules may then be extended to 1 July 2020. These are set out at Appendix 1.
Similar restrictions applied to Bulgarian and Romanian nationals until 31 December 2013.
These are set out at Appendix 2. These rules are included in Appendix 2 as they may be
relevant in determining whether a person has satisfied rules for permanent residence or
retention of worker status.
If a person claiming benefit or her/his partner or any member of her/his household is not
an EEA national, then check Section 1 before looking at this section. This is important
because, if Section 1 of these notes applies and the person’s immigration status means
that she/he is not entitled to claim public funds, then being included in a claim for a social
security benefit or tax credit may lead to serious consequences, including deportation and
prosecution.
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2.1 The habitual residence and right to reside test
Income-based Jobseeker’s Allowance
From 1 January 2014 a person Income-based Jobseeker’s Allowance must as a rule have
been residing in the common travel area for three months as a condition of entitlement to
benefit. In addition, Income-based Jobseeker’s Allowance claimants must satisfy the
habitual residence and right to reside rules set out below.
Income-based Jobseeker’s Allowance, Income-related Employment and
Support Allowance, Income Support, Housing Benefit, Pension Credit (and
Universal Credit which is due to be introduced some time in 2014)
Income-based Jobseeker’s Allowance, Income-related Employment and Support Allowance,
Income Support, Housing Benefit, Pension Credit (and Universal Credit which is due to be
introduced some time in 2014) require that a person must be habitually resident and have a
right to reside to be entitled to benefit.
Unless a person is in an exempt group, she/he must:
be habitually resident in fact in the Common Travel Area (the UK, Ireland, the Channel
Islands or the Isle of Man);
and have a right to reside in the Common Travel Area.
2.1.1 Exempt groups
A person will be exempt from the habitual residence test Income-based Jobseeker’s
Allowance, Income-related Employment and Support Allowance, Income Support, Housing
Benefit, Pension Credit (and Universal Credit which is due to be introduced some time in
2014) and will be treated as having a right to reside if she/he is:
an EEA national who is a worker or retains worker status;
EXAMPLE
Luis comes to Northern Ireland to take up an offer of employment at a local
computer company. He is entitled to claim Housing Benefit as soon as he arrives in
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Northern Ireland as he is an EEA worker who is exempt from the habitual residence
and right to reside test.
an EEA national who is self-employed or retains self-employed status;
a family member of a person in either of the above two groups;
an EEA national or family member of an EEA national with a permanent right of residence
as a retired or permanently incapacitated worker or self-employed person;
a Croatian national working lawfully under worker authorization provisions;
a refugee;
a person with exceptional leave to enter or remain in UK granted outside the Immigration
Rules;
a person with humanitarian protection granted under the Immigration Rules;
a person deported, expelled or legally removed from another country to the UK who is
not a person subject to immigration control;
EXAMPLE
Abdullah is a dual British/ Syrian citizen. He is deported to the United Kingdom
from the United Arab Emirates. He is entitled to Income-based Jobseeker’s
Allowance straight away as he is exempt from the habitual residence and right to
reside test.
a person who left Zimbabwe to come to the UK after 28 February 2009 but before 18
March 2011 who has received assistance from the UK government to settle in the UK.
For Housing Benefit only – receives Income Support, Income-related Employment and
Support Allowance, Income-based Jobseeker’s Allowance or State Pension Credit
For Income-related Employment and Support Allowance only – is being transferred
from Income Support to Income-related Employment and Support Allowance which was
transitionally protected from the requirement to have a right to reside.
2.1.2 Habitual residence – the Factual Test
If not exempt, a person must show habitual residence in the Common Travel Area (the UK,
Ireland, the Channel Islands and the Isle of Man).
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NOTE. Benefit authorities often make the mistake of disregarding habitual residence outside
the UK but within the Common Travel Area. Watch out for this as disputes may be easily
resolved where habitual residence within the Common Travel Area can be shown. Also the
decision maker must consider the question of whether the person was habitually resident
right up to the date of the decision rather than simply the date of claim.
There is no definition of habitual residence in legislation but there is a substantial amount of
case law on what is habitual residence.
The following principles have emerged from case law:
habitual residence is a question of fact to be decided on all the circumstances of the case;
a person must actually be resident in order to be habitually resident; it is not enough to
have an intention to become resident;
a person need not intend to reside permanently, but must have a settled intention to
reside in the Common Travel Area for the time being;
no particular period of actual residence is essential for establishing habitual residence,
however, in most cases a person must have actually been resident for an appreciable
period of time. There have been a significant number of appeals on the issue of what is
an appreciable period of time. What is an appreciable period is not set down in law and
needs to be considered in the individual facts of each claim. It would be unlawful for the
Department (DSD) to apply a blanket policy that a person must be resident for a specific
period of for example three months without further consideration of the facts, and such
a policy could be challenged by an application for judicial review;
the adjudicating authorities must look at the settledness of the person’s intention to
reside in the Common Travel Area and this is linked to the determination of the length of
the appreciable period of time. The stronger the person’s settled intention is to reside in
the Common Travel Area, the shorter the period of actual residence will be necessary.
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2.1.3 Factors relevant to establishing habitual residence
The person must show evidence of her/his settled intention to reside in the Common Travel
Area, which can include consideration of the person’s reasons for coming and the viability of
the residence. The following factors may be relevant:
strength of family ties in the Common Travel Area and abroad;
any enquiries made about securing employment, education, training or accommodation;
whether the person has ended employment abroad or closed any benefit claims abroad;
whether the person sold her/his home or give up her/his accommodation;
whether the person closed or transferred any bank accounts;
steps taken to dispose of possessions or arrange for them to be transported to Northern
Ireland;
whether the person notified medical or school authorities (if she/he has children) of
her/his intention to come to live in Northern Ireland;
whether the person travelled on a one way or on a return plane ticket;
any other steps which may show the person intended to leave her/his original place of
residence and reside in Northern Ireland;
how the person planned to support her/himself if benefit is not paid. The viability of a
person’s residence without claiming benefits is one relevant factor although it is not an
additional requirement;
whether the person has arranged accommodation here;
whether the person has registered with a doctor or dentist;
whether the person has registered her/his children in a school;
whether the person has enrolled in any clubs or societies;
whether the person has opened a bank account in Northern Ireland.
EXAMPLE
Gary is a British citizen who returns to Northern Ireland to live after spending 40
years in Australia. He claims Income-based Jobseeker’s Allowance and Housing
Benefit as soon as he arrives in Northern Ireland and his claim is refused on the
grounds that he is not habitually resident in the UK and is regarded as a person
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from abroad. The factors relevant in making this decision are that Gary has not
been resident for an appreciable period of time, has not arranged accommodation
and has a bank account still in Australia. Gary should be advised to make a further
claim for Income based Jobseeker’s Allowance once he has been resident for three
months. He can make further claims for Housing Benefit within the three month
period until it is accepted that he is habitually resident. Gary has a right to reside as
a British citizen so he will be entitled to benefit once he becomes habitually
resident.
2.1.4 Resuming habitual residence
The habitual residence test applies to UK residents including British citizens who are
returning to the UK after an absence abroad. All the facts of the person’s case will be
considered and if an absence from the UK was temporary then habitual residence will not
have been lost.
EXAMPLE
Hari was habitually resident in the UK and left in 2008 to do voluntary work in India
for three years. When he returned and claimed State Pension Credit his claim was
disallowed on habitual residence grounds. His appeal was allowed because it was
decided that his time in India did not end his habitual residence in the UK. In
making the decision, the facts that were found to be relevant were that he had kept
all his possessions in the UK, he did not have a right to reside in India, he made
regular visits to the UK and he had shown that he always intended to return to live
in the UK (if you want to read more about this, see case reference KS v SSWP 2010
UKUT 156 AAC).
2.1.5 EU law and resuming habitual residence
Where a person was habitually resident in the Common Travel Area and she/he moved to
live and work within the European Union, she/he will immediately be habitually resident on
arrival in the Common Travel Area. Such a person should not be required to be present for
an appreciable period of time to re-establish habitual residence.
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2.1.6 Benefit entitlement where a person fails the habitual residence test
If a person fails the habitual residence test she/he will not receive Income-based Jobseeker’s
Allowance, Income-related Employment and Support Allowance, Income Support, Housing
Benefit and State Pension Credit. However, the person should continue to make further
claims for these benefits until it is accepted that she/he has in fact become habitually
resident. If the person is destitute, she/he may be entitled to assistance from social services
and should contact a community care adviser at the Law Centre for further advice.
2.1.7 Couples where one person is habitually resident
Where a person satisfies or is exempt from the habitual residence test, she/he may make a
claim for means tested benefits for her/himself but also for her/his partner. This general rule
is subject to exceptions for Income-based Jobseeker’s Allowance and Universal Credit which
are set out below.
2.1.7.1 Couples – Income based Jobseeker’s Allowance
For Income based Jobseeker’s Allowance in the case of a joint-claim couple, where one
person does not satisfy the habitual residence test, her/his partner who does satisfy the
habitual residence test, will be able to claim Income based Jobseeker’s Allowance and will be
paid at the couple rate without the need for a joint claim.
EXAMPLE
Gerard is a British citizen. His Spanish partner Penelope joins him and the couple
wants to claim Jobseeker’s Allowance. Penelope is not immediately habitually
resident although she has a right to reside as a jobseeker. Gerard will claim
Income-based Jobseeker’s Allowance for them both and will be paid at the couple
rate.
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2.1.7.2 Couples – Universal Credit
For Universal Credit (to be introduced from 2014 through to 2017) the habitual residence
test applies to both partners making a joint claim. If one partner fails the habitual residence
test then the other must claim Universal Credit as a single person. The award will be paid at
the rate for a single person; however the non habitually resident partner’s income and
capital will be taken into account.
2.1.8 How to challenge a habitual residence decision
If a person fails the habitual residence test, she/he has a right to challenge the decision by an
application for revision or appeal. She/he should make a further claim for benefit pending
the outcome of the appeal. This is necessary because an appeal will only consider the facts
relating to the person’s habitual residence down to the date of the decision to disallow claim
for benefit.
A person should be advised to challenge subsequent refusals and to make further
subsequent fresh claims. Some local offices incorrectly advise people that it is either not
possible or not necessary to make a fresh claim where a challenge to a habitual residence
decision has been lodged. Such advice is incorrect and should be brought to the attention of
the Social Security Agency, for example by referring the matter to Law Centre (NI).
Ask for associated appeals to be listed together as this will permit the appeal tribunal to
decide when during the entire period of disallowance the person satisfied the habitual
residence rule. Eventually a claim will be accepted if this is the only reason leading to
disallowance. The upper limit of an appreciable period is usually three months.
2.1.9 Right to reside test
The right to reside test was introduced as part of the habitual residence test on 1 May 2004.
The test has proved to be controversial, particularly in respect of EEA nationals who have
been refused benefits on the grounds of right to reside when not economically active. Also,
special rules limit the right to reside of Croatian nationals until at least 30 June 2018 (see
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Appendix 1). The European Commission is currently in a dispute with the UK regarding the
lawfulness of the right to reside test in relation to EEA nationals. Until this dispute is
resolved the Social Security Agency will continue to apply the rules as set out below. The
Law Centre welcomes referrals of cases on the issue of right to reside and can provide advice
and support to advisers pursuing right to reside appeals.
This is a complex issue that requires knowledge of immigration law, EU law and case law. It
can depend on a person’s individual but also family circumstances so that a person who had
a right to reside for benefit purposes may find that when her/his circumstances change
she/he no longer has a right to reside and needs to seek further advice.
Examples of where a person will have a right to reside include where she/he is:
a British citizen;
an Irish citizen;
a Commonwealth citizen with a right of abode;
a person with leave to enter or remain, for example indefinite leave, refugee leave.
The majority of people affected by the right to reside rule are EEA citizens or their family
members. The rest of the section on right to reside focuses on the rights to reside of EEA
nationals.
2.1.10 Transitional protection for claims pre-dating 30 April 2004
Where a person has been entitled to Income Support, Income-based Jobseeker’s Allowance,
State Pension Credit or Housing Benefit since 30 April 2004, rules on transitional protection
mean that she/he does not need to satisfy the right to reside rule under a continuing claim
for benefit. In certain circumstances transitional protection will continue to apply for
subsequent claims due to linking rules. For example, where a person with transitional
protection is migrated to Income-related Employment and Support Allowance from Income
Support on disability grounds, she/he will continue to be exempt from the right to reside
rule.
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2.1.11 Excluded rights of residence
Some benefits specifically exclude particular categories of right to reside. These are set out
below.
2.1.11.1 Excluded rights of residence for Income-based Jobseeker’s Allowance (and
Universal Credit which is due to be introduced some time in 2014)
An EEA national with an initial three-month right of residence;
a family member of a person with a three-month initial right of residence;
the primary carer of a British citizen who is dependent on the person and would have to
leave the UK if the primary carer was required to leave. NOTE: This exclusion is
controversial and the Law Centre is seeking referral of such cases to challenge this rule.
EXAMPLE
Rani is a non EEA national came to the United Kingdom on a holiday visa and did
not return to Egypt. She was in a relationship with a British man and she has a
British son. When her relationship breaks down Rani seeks advice on claiming
benefits. She will not be entitled to Income-based Jobseeker’s Allowance, Income
Support, Income-related Employment and Support Allowance, Housing Benefit,
Child Benefit and Child Tax Credit as her derivative right to reside as the parent of a
British national is an ‘excluded right to reside’ for these benefits. This rule may be
challenged and the Law Centre welcomes referral of such cases.
2.1.11.2 Excluded rights of residence for Income Support, Income-related Employment and
Support Allowance, Pension Credit and Housing Benefit
An EEA national with an initial three month right of residence;
a family member of a person with a three month initial right of residence;
an EEA jobseeker;
a family member of an EEA jobseeker;
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the primary carer of a British citizen who is dependent on the person and would have to
leave the UK if the primary carer was required to leave. NOTE: This exclusion is
controversial and the Law Centre is seeking referral of such cases to challenge this rule.
EXAMPLE
Angela is a German lone parent who comes to Northern Ireland to look for work.
After one month her savings run out and she is advised at the Jobs and Benefits
Office to claim Income Support as her son is aged one. Her claim is disallowed as
she does not have a right to reside as a jobseeker for Income Support. Angela will
be entitled to Jobseeker’s Allowance once she has established habitual residence.
She can appeal the decision that she does not have a right to reside for Income
Support and she should contact the Law Centre for further advice.
If a person’s right to reside is as an EEA jobseeker she/he will not satisfy the right to reside
test for any of the means tested benefits except Income-based Jobseeker’s Allowance. If a
person receives Income-based Jobseeker’s Allowance, she/he will currently satisfy the
habitual residence test for Housing Benefit. However, there are proposals to exclude EEA
jobseekers from Housing Benefit in the future.
2.1.12 EU law rights of residence
Under EU law, EEA nationals and their family members may have a right to reside under the
following categories:
initial three-month right of residence;
extended right of residence;
permanent right of residence;
derivative right of residence;
These categories are considered in more detail below.
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2.1.12.1 Initial three-month right of residence - Income Support, Income-based Jobseeker’s
Allowance, Income-related Employment and Support Allowance, State Pension Credit or
Housing Benefit.
All EEA nationals including Croatian nationals have a right to enter the UK and have an initial
right of residence for three months. A person will have this right regardless of whether
she/he is looking for work but the right is subject to the condition that the person must not
become an unreasonable burden on the social assistance system of the UK. The initial three-
month right of residence will also apply to the family members of the EEA national.
If a person’s only right to reside in the UK is this initial three-month right of residence,
she/he will not be entitled to Income Support, Income-based Jobseeker’s Allowance, Income-
related Employment and Support Allowance, State Pension Credit or Housing Benefit.
However, if the person can assert another right to reside then she/he may be entitled to
these benefits during the initial three-month period.
NOTE: In contrast, the initial three-month right to reside will satisfy the ordinary residence
and right to reside test for Child Benefit and Child Tax Credit.
2.1.12.2 Extended right of residence
The Immigration (EEA) Regulations 2006 incorporate the provisions of the EU Residence
Directive 2004/38 into UK law. The Regulations provide for an extended right of residence
where the person comes within a category of ‘qualified person’ as defined in the Regulations.
Family members of qualified persons and of EEA nationals with a permanent right of
residence also have a right to reside. Special provisions limit the application of some of the
rights of residence set out below in respect of Croatian nationals until at least 30 June 2018.
A qualified person is a person who is an EEA national and who is in the UK as a:
jobseeker;
worker;
self-employed person;
person who retains the status of worker or self-employed person;
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person who is self-sufficient;
student who is self-sufficient;
the family member of the above.
2.1.12.3 Jobseeker
This will apply if the person is looking for work and has a genuine chance of finding
employment. A person will generally be accepted as a jobseeker if she/he has claimed
Jobseeker’s Allowance or national insurance credits. From 1 Jan 2014, a right to reside as a
jobseeker will last for six months. However, a person with a right to reside as a jobseeker
will have to satisfy the three-month residence in the common travel area as well as the
factual habitual residence test in order to qualify for benefit. After six months such a person
must show compelling evidence that she/he is continuing to seek work and has a genuine
chance of finding work in order to continue having such a right to reside.
At the time of writing, a right to reside as a jobseeker will satisfy the right to reside
requirement for Income-based Jobseeker’s Allowance, which will passport a person to
Housing Benefit, and it will also satisfy the right to reside requirement for Universal Credit
(once it is introduced in Northern Ireland, some time in 2014). There are plans to exclude
EEA jobseekers from entitlement to Housing Benefit from later in 2014. If the person has
dependent children the status of jobseeker will satisfy the right to reside test for Child
Benefit and Child Tax Credit.
A right to reside as a jobseeker may not satisfy the right to reside requirement for Income
Support, Income-related Employment and Support Allowance, Pension Credit (or Housing
Benefit without a linked award of Jobseeker’s Allowance). Advisers should contact Law
Centre (NI) for further advice if claimants are refused benefit on this ground.
Croatian nationals are excluded from the right to reside as a jobseeker until 1 July 2018
unless exceptions apply (see Appendix 1).
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NOTE: When Universal Credit is introduced in Northern Ireland, EEA nationals and their
family members who have a right to reside on the basis of being jobseekers will be subject to
all work-related requirements under conditionality rules of Universal Credit.
2.1.12.4 Worker
An EEA national who is a worker has a right to reside and is exempt from the habitual
residence test. To be a worker, a person must be in employment and the person’s work
must be genuine and effective rather than marginal and ancillary. Worker status continues
while the person is still under a contract of employment. A person will still be a worker while
on holiday, sick leave or maternity leave, including any unpaid maternity leave. This will
apply to Croatian nationals in authorized work.
Where there is any doubt as to whether a person is a worker all the facts of the case must be
considered, including:
length of employment – a person who worked for two weeks as a steward at Wimbledon
was found to have worker status;
number of hours worked – there is no minimum number of hours. An au pair working
thirteen hours per week has been found to be a worker. The Court of Justice of the EU
has found that five and a half hours per week might entitle a person to worker status;
remuneration – this may be in kind such as board and lodging, but voluntary work will
not lead to worker status. Work which is low paid and supplemented by benefits may
still lead to worker status;
pattern of work – the more regular work is, the more likely that worker status will have
been established;
agency work may lead to worker status;
working cash in hand may lead to worker status.
2.1.12.5 Self-employed person
A self-employed EEA national will have a right to reside under EU law and will be exempt
from the habitual residence test. Croatian nationals who are self-employed have the same
rights as other EEA nationals.
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To be self-employed, a person must provide services in return for remuneration. The work
must be genuine and effective and not marginal and ancillary. A person counts as self-
employed while taking steps to set up a business such as arranging premises, distributing
flyers, ordering stock or arranging a licence. Likewise, a person may still count as self-
employed during periods where there is a lull in trade. This will depend on the facts of the
case, and relevant issues will include steps being taken to develop new business,
administration and networking. Registration with HMRC is necessary if self-employed,
although in some cases a person will be accepted as self-employed before she/he has
registered as such with HMRC.
It can be possible to retain self-employed status in some circumstances for example during
periods where a person is temporarily unable to work due to illness or accident. Unlike for
worker status, it is possible to retain self-employed status where a person is a Croatian
national during periods of restriction.
It may be possible to continue to be self-employed during a break due to pregnancy or
childbirth issues
EXAMPLE
Olga is Croatian and is a self-employed piano teacher. She has recently had a baby
and is too unwell to work. She will be entitled to Income-related Employment and
Support Allowance as she will continue to have a right to reside as a self-employed
worker during a temporary interruption in her pattern of work due to childbirth.
A formerly self-employed person will not retain worker status if she/he is involuntarily
unemployed from self-employment and registered as a jobseeker or if doing vocational
training. Advisers should contact the Law Centre for further advice if a client has been
affected by this rule. Where a person is affected by this rule she/he may be able to claim a
right to reside as a jobseeker. A Croatian national will not have a right to reside as a
jobseeker until at least 1 July 2018.
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2.1.12.6 Retaining worker status
A person (other than a Croatian national requiring authorization) will retain worker status if
she/he:
is temporarily unable to work due to an illness or accident. The person will have to show
that the inability to work is temporary rather than permanent. It is not necessary that
the person has claimed Employment and Support Allowance or passed the work
capability assessment. The test relates to ability to do the work the person was doing or
was seeking.
EXAMPLE
Pietro is temporarily unable to work due to a viral infection. His Statutory Sick Pay
has expired but his job remains open for him to return to when he is fully
recovered. Pietro will have a right to reside for Employment and Support
Allowance while he remains temporarily unable to work. He will still have a right to
reside as a worker in these circumstances.
is involuntarily unemployed after having been employed in the UK and is registered as a
jobseeker with the Social Security Agency and she/he was employed for a year or more
in which case she/he will retain worker status for six months, and longer if she/he can
show compelling evidence of continuing to seek work and having a genuine chance of
getting employment; although if the person has worked for less than six months, worker
status will only be retained for six months during a period of involuntary unemployment;
or
is undertaking vocational training.
NOTE: Before arguing that a person has retained worker status, consider whether she/he
may still be a worker, for example on unpaid maternity or sick leave but still engaged under a
contract of employment.
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NOTE: When Universal Credit is introduced, some time in 2014, a person with a right to
reside as a person retaining worker status while involuntarily unemployed and registered as
a jobseeker will not be exempt from the universal credit work related requirements even if
she/he would otherwise fall into an exempt group. Contact the Law Centre’s advice line
where this arises for further advice.
2.1.12.7 Worker status and pregnancy and childbirth
Advisers should consider carefully whether a person remains a worker or self-employed
person or retains worker or self-employed status during pregnancy and periods after
childbirth.
Worker status will be retained where
the person is still in employment but in a period of maternity leave including unpaid .
the person is temporarily incapable for work due to pregnancy or post pregnancy issues
NOTE: It is unclear whether a person will retain worker status if she reasonably gives up
work due to pregnancy or childbirth. this issue has been referred for guidance to the
European Court of Justice by the British Supreme Court in the case of Jessy Saint Prix v SSWP
2012 (EC reference C-507/12.)
2.1.12.8 Self-sufficient person
In order to have a right to reside under EU law as a self-sufficient person a person must:
have sufficient resources for her/himself and any family members so that they do not
become an unreasonable burden on the UK social assistance system. This is interpreted
as having an income in excess of a person’s applicable amount for means- tested benefits
plus housing costs. However, even if a person’s income is less than this, it will be
necessary to look at her/his personal facts, for example whether there is a temporary
reduction in income and whether she/he is provided with free accommodation by family
or friends;
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have comprehensive sickness insurance. This may be satisfied by a person who has
private health insurance or if the UK can be reimbursed by another state for the cost of
NHS services. This will usually apply where EU Regulation 883/2004 on the co-ordination
of social security systems applies and another member state continues to be the
competent state. Advisers should contact Law Centre (NI) for further advice where
claimants are affected by this rule as arguments can be made that the right to access NHS
treatment under EU law may satisfy this requirement.
2.1.12.9 Student
Special rules apply to Croatian nationals who may have a right to reside as a student.
Otherwise an EEA national who is a student will have a right to reside on that basis where
she/he is:
is enrolled as a student at a government accredited college;
provides an assurance at the outset of sufficient funds for her/himself and family not to
become a burden on UK social assistance during period of study; and
has comprehensive sickness insurance.
2.1.12.10 Permanent right of residence
The right to permanent residence was introduced under EU law on 30 April 2006, however
periods of lawful residence in the UK prior to that date can be considered when determining
whether a person has met the requirements for permanent residence. The Immigration
(EEA) Regulations 2006 expressly exclude consideration of time spent on the basis of having
a derived right to reside (see section on derivative right of residence below) when calculating
required periods of residence. Law Centre NI welcomes referrals of cases where this issue
arises.
Once acquired, permanent residence will only be lost by absence from the UK for a period of
more than two consecutive years.
A person has a permanent right of residence in the UK under EU law if she/he has resided
legally in the UK for a continuous period of five years as a:
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worker;
self-employed person;
person retaining worker/ self-employed status;
self-sufficient person;
student; or
family member of such a person.
Periods of jobseeking mixed with periods of work will normally count towards the period of
five years.
2.1.12.11 Family members and permanent residence
A family member of a person with a permanent right of residence has a right to reside for as
long as she remains a family member. After five years of being a family member of a person
with a permanent right of residence the family member will have permanent residence
herself/himself. Periods of residence as a family member may be added to other periods as
a qualified person to satisfy the five year requirement for permanent residence.
2.1.12.12 Permanent residence and exceptions to the five year requirement
A person has a permanent right of residence and is exempt from the habitual residence test
if she/he is a:
worker or self-employed person who ceases activity and:
has reached retirement age or taken early retirement and either worked in the UK for
the preceding year and lived in the UK for more than three years continuously or is a
person who has a spouse or civil partner who is a UK national;
or
has stopped working in UK due to a permanent incapacity and has a spouse or civil
partner who is a UK national, or resided continuously in the UK for more than two
years or the incapacity was because of an accident at work or occupational disease
that led to benefit entitlement;
EXAMPLE
Pablo is a Spanish EEA national. He took a job in the UK but in his first week at
work was run over by a forklift lorry and he is now entitled to Industrial
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Disablement Benefit due to the permanent disability he incurred. He will be
entitled to a permanent right of residence and will meet the habitual residence and
right to reside rules for Income Support, Income-related Employment and Support
Allowance, Pension Credit and Housing Benefit.
or
has worked and resided in the UK for three years and then worked in another
member state and returned to the UK at least once a week; or
the family member of a worker or self-employed person in any of the above groups (see
2.1.12.12, first bullet point) and lives with that person in the UK;
EXAMPLE
Pablo’s daughter is aged eighteen and has just had a baby. She will have a right to
reside for Income Support or Income-related Employment and Support Allowance
as the family member of a person with a right to reside until she is 21. She will then
have to demonstrate her own right to reside unless she can show that she remains
dependent on her father, and she may have to claim Jobseeker’s Allowance for
herself.
the family member of a worker or self-employed person who died while working who
had not attained permanent residence; and:
she/he had lived in the UK for two years; or
the death resulted from an accident at work or occupational disease; or
she/he lost UK nationality as a result of the marriage.
2.1.12.13 Family members and right to reside – family breakdown
Where family breakdown occurs, careful consideration needs to be given to the right to
reside status of the family members of the person who had a right to reside under European
law, who is referred to as the qualified person.
This commonly arises where a person has to make a claim to benefits as she/he is no longer
being maintained by the former partner who has a right to reside. Advisers should carefully
consider the rules about right to reside in case of family breakdown set out below (see
2.1.12.14 to 2.1.12.16). The rules are complicated and in some cases EU law rights under EU
Directive 2004/38 are more generous than under the Immigration (EEA) Regulations 2006.
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The Law Centre welcomes referrals of cases where such issues arise. Advisers should contact
the Law Centre’s advice line directly.
2.1.12.14 Family members and right to reside – death of qualified person
Where a person is the family member of an EEA national who was a qualified person or a
person with permanent residence and that EEA national has died, she/he will have a right to
reside in the UK if she/he is an EEA national. However, she/he will have to satisfy rules on
being a qualified person to obtain permanent residence.
If the family member is a non EEA national then she/he will have a right to reside after the
qualified person dies if she/he:
resided in UK with a right to reside for at least one year before that person died; and
would qualify as a worker or self-employed or self-sufficient person if she/he was an EEA
national; or
is she/he is the child/ grandchild of the qualified person/spouse/civil partner and was in
education at the time the person died and remains in education; or
is the parent with custody of a child in education (see above bullet point).
2.1.12.15 Family members and right to reside – qualified person leaves UK
A family member may retain a right to reside where the qualified person or person with
permanent residence leaves the UK if she/he is an EEA national.
If the abandoned family member is a non EEA national she/he will have a right to reside if:
she/he is the a grand/child of the qualified person (or her/his spouse or civil partner) and
was in education immediately before that person left the UK and remains in education;
or
she/he is the parent with custody of a child who was in education immediately before
the qualified person left the UK and the child remains in education.
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EXAMPLE
Aneta is an EEA Hungarian national. She has been residing in Northern Ireland for
two years with her husband who was lawfully working and their six children. Her
husband has left her and she believes he has left the country. If she has a child
under seven, she will be able to claim means-tested benefits. Otherwise, she may
have a right to reside for Income-based Jobseeker’s Allowance or Income-related
Employment and Support Allowance.
2.1.14.16 Family members and right to reside – breakdown of marriage or civil partnership
A spouse/civil partner of a qualified person will continue to be treated as that person’s family
member until the date of any divorce/legal termination.
EXAMPLE
Dorothy is the Canadian wife of an Irish national who is working in Northern
Ireland. She separates from her husband two months after she arrives in Northern
Ireland. Her husband is a very violent man and she had to seek refuge with
Women’s Aid. She is 63 and will have a right to reside for State Pension Credit and
Housing Benefit as she remains the family member of an EEA worker until the date
of any divorce.
After divorce/legal termination, a former spouse/civil partner may continue to have a right to
reside:
if she/he is an EEA national; or
if not an EEA national, if she/he was residing in UK at the date of divorce/termination
and:
the marriage/ civil partnership had lasted at least three years with both parties
living in the UK for at least one of those years; or
she/he has custody of a qualified person’s child; or
she/he has right of access to the qualified person’s child which a court has
directed must take place in the UK; or
her/his right of residence in the UK is justified by particularly difficult
circumstances such as domestic violence during the relationship.
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EXAMPLE
Dorothy (see example above) is now divorced. She will have a right to reside as her
marriage ended due to domestic violence. She will be able to claim State Pension
Credit and Housing Benefit.
Before such a person will obtain permanent residence, she/he will have to satisfy the rules
for permanent residence.
2.1.12.17 Family members who retain a right of residence - Permanent residence
Where a person has a right to reside on the basis of retaining right to reside in the above
three groups (see 2.1.12.14 to 2.1.12.16), it will not be possible to obtain permanent
residence status unless the person is a worker, self-employed, self-sufficient or the family
member of such a person.
2.1.12.18 Derivative right of residence
In the limited circumstances that are set out below (see 2.1.12.19 to 2.1.12.21), it will be
possible for a person to have a right to reside which is based on another person’s right to
reside but is not simply through being a family member. This is a derivative right to reside.
Importantly, the Immigration (EEA) Regulations 2006 state that residence in the UK as a
result of a derivative right to reside will not count towards residence for permanent right of
residence. Law Centre (NI) welcomes referrals of cases where this issue arises.
2.1.12.19 Child/primary carer of a child of a former worker if the child is in education.
This can apply to Bulgarian, Romanian and Croatian nationals as well as non EEA nationals.
It will apply where:
a child is a child of an EEA national who was a worker in the UK; and
the child is in the UK and is in education; and
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the person is the primary carer of such a child; and
the child would be unable to continue her/his education if the primary carer was
required to leave the UK.
EXAMPLE
Barbara is an EEA Polish national. Her marriage has broken down and she has
become very depressed. She has a child in secondary school. Her husband worked
briefly in registered work in 2010 but then struggled to find work, became
depressed and left the household. Barbara will have a right to reside for Income-
related Employment and Support Allowance and Housing Benefit as the primary
carer of a child of a former worker who is in education. Barbara should consider
claiming Jobseeker’s Allowance in the future as the right to reside as a primary
carer will not count towards the required period for permanent residence.
2.1.12.20 Primary carer of an EEA national child who is self sufficient
This can apply to Croatian nationals as well as non EEA nationals.
It will apply where:
the EEA national is under eighteen; and
is residing in the UK as a self-sufficient person; and
would be unable to remain in the UK if the primary carer was required to leave.
2.1.12.21 Primary carer of a British child
This can apply to Croatian as well as non EEA nationals.
It will apply where:
the British citizen is under eighteen and residing in the UK; and
the British citizen would be unable to remain in the UK if the primary carer had to leave
the UK.
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2.1.12.22 Other rights of residence under EU law
If a person does not come within one of the categories set out above, it may be possible to
argue in exceptional circumstances for a right to reside based on her/his EU citizenship under
Article 21 of the Treaty on the Functioning of the EU. This will only apply to EU nationals, but
will include Croatian nationals.
Advisers should contact the Law Centre’s advice line where EU nationals have been refused
benefits on grounds of right to reside.
2.1.13 What to do if a person is found not to be ‘a person with a right to
reside’
If a person is refused benefit on grounds of right to reside, seek specialist advice as this is an
area of law where case law is relevant and constantly evolving. The Law Centre advice line
can provide such specialist advice.
Advisers will need to consider whether, on further exploration of the facts of the case, the
person can be brought within one of the groups regarded as having a right to reside. There is
further information above (see 2.1.12) on specific key categories. Seek further advice if a
person cannot be brought within these categories as it may be possible to make arguments
for a right to reside outside these categories.
If a person is ineligible for benefit as a result of not having a right to reside, contact the Law
Centre for advice on possible alternative support from social services pending appeal. The
Law Centre is looking for cases to challenge the lack of interim payments of benefits for EEA
nationals pending right to reside appeals.
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2.2 Ordinary residence and right to reside test - Child Benefit and
Child Tax Credit
An Ordinary residence and Right to Reside test applies to:
Child Benefit
Child Tax Credit
The rules set out in relation to right to reside above will apply to Child Benefit and to Child
Tax Credit. However, a social security commissioner has decided that in the case of EEA
nationals the ordinary residence and right to reside rule for Child Benefit is unlawful direct
discrimination under EU law. This case is currently being appealed to the Court of Appeal in
Northern Ireland. Advisers should contact the Law Centre’s advice line where an EEA
national is refused Child Benefit or Child Tax Credit on ordinary residence and right to reside
grounds.
Ordinary residence is not defined in legislation. Ordinary residence tends to be much less
problematic in practice than the habitual residence requirement which is covered at section
2.1. A person will generally be regarded as ordinarily resident if she/he has a home in
Northern Ireland and lives there, whether it is for a short or long period.
2.2.1 Initial three month right of residence – child benefit and child tax credit
The initial three month right of residence will satisfy the right to reside test for child benefit
and child tax credit. This will also apply to Croatian nationals. However once the initial three
month period ends the person’s entitlement to Child Benefit and Child Tax Credit will end
unless she/he can come within one of the other categories of right to reside set out at
section 3.1.12.
EXAMPLE
Bogdan is a Croatian EEA national. He recently arrived in Northern Ireland with his
wife and child and intends to look for authorized work. Bogdan will be able to
claim Child Benefit and Child Tax Credit during the initial three-month period of his
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residence. After that date he will have to establish a right to reside on some other
ground for example as a self-employed person.
2.3 Ordinary residence and past presence rules: Attendance
Allowance, Disability Living Allowance, Carer’s Allowance
At the time of writing, these benefits require that a person:
is present in Northern Ireland; and
has been present in Northern Ireland for 26 weeks out of the 52 weeks prior to making
the claim; and
is ordinarily resident in Northern Ireland; and
that the UK is the competent state for the payment of sickness benefits to the person
under EU law.
In some cases, it is possible to rely on EU law to export these benefits to another EEA
member state and also to use periods of residence in another member state to satisfy these
residence rules.
There are plans to change the residence rules for these benefits at some time in 2014 to
require that a person:
is present in Northern Ireland;
has been present for 104 out of the 156 weeks prior to making the claim; and
is habitually resident in the common travel area.
Similar rules will apply to Personal Independence Payment, a benefit which will replace
Disability Living Allowance for working age claimants some time in 2014, as part of welfare
reform.
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2.4 Contribution-based benefits and employment related benefits
and residence
Contributory benefits such as Contribution-based Jobseeker’s Allowance, Contribution-based
Employment and Support Allowance and State Retirement Pension (except category D) do
not have residence conditions. Likewise, employment related benefits such as Maternity
Allowance and Industrial Injuries Benefits do not have residence conditions. However, these
benefits generally require presence in Northern Ireland and may be affected if a person goes
abroad. There are no residence or presence conditions for Statutory Sick Pay, Statutory
Maternity Pay, Statutory Paternity Pay or Statutory Adoption Pay.
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3.0 European Union regulation on co-ordination of
social security systems
3.1 Introduction
European social security rules aim to ensure that EEA nationals and their family members
who move between EEA states exercising EU Treaty rights do not lose out on benefit
entitlement. The main EU social security rules are set out in EC Regulation 883/2004, which
co-ordinates social security systems in the EU.
Member states decide the benefits available in their own state and the conditions of
entitlement to them. Rules under EC Regulation 883/2004 allow a person moving between
EEA states to export certain benefits, to rely on tax and contributions paid in other member
states to satisfy contribution conditions, for example for Contribution-based Employment
and Support Allowance and also to rely on periods of residence in other EEA states to satisfy
past presence conditions.
Regulation 883/2004 applies without restriction to Croatian nationals.
3.2 Who is covered by Regulation 883/2004? Personal scope
To be covered by Regulation 883/2004, a person must be within the personal scope of the
Regulation.
This covers a person who is subject to the legislation of one or more member states and who
is:
an EEA national; or
a refugee; or
a stateless person; or
a family member or a widow/er, surviving civil partner of one of the above.
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This means that not only employees, self-employed persons, civil servants, students and
pensioners but also non-active persons are protected by Regulation 883/2004.
3.3 What is covered by Regulation 883/2004? Material scope
Under the Regulation, benefits are divided into three types depending on conditions of
eligibility:
social security benefits;
special non-contributory benefits;
social and medical assistance.
3.4 Social security benefits under EC Regulation 883/2004
Social security benefits have the most rights and tend to be exportable. These are generally
contribution-based benefits. Special non-contributory benefits are paid in the country of
residence.
Social security benefits are categorized into groups relating to the risk that they are designed
to cover. These are:
sickness;
maternity;
invalidity;
old age;
pre-retirement;
survivors;
accidents at work and occupational diseases;
unemployment;
family benefits.
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Special non-contributory benefits
These cannot be exported. They are benefits that are not based on contributions and must
be listed by the UK as being special non-contributory benefits. At present, in the UK these
are:
Disability Living Allowance mobility component (however, the care component of
Disability Living Allowance is treated differently and can be exported);
Income-related Employment and Support Allowance;
Income-based Jobseeker’s Allowance;
State Pension Credit.
It is expected that the mobility component of Personal Independence Payment will also be
listed as a special non-contributory benefit once that benefit is introduced in Northern
Ireland.
3.5 Competent state rules
As a general rule, a person will be subject to the legislation of a single member state only.
This will be the person’s competent state.
The competent state is the state in which the person:
is employed or self-employed; or
resident and from which she/he receives an unemployment benefit; or
a civil servant; or
a conscripted member of armed forces or person doing compulsory civilian service.
If a person works in two or more member states:
the member state of residence is the competent state if the person pursues a substantial
part of activities there;
if a person’s employer’s business is in one member state and she/he is sent to work in
another member state for up to 24 months, the first member state remains the
competent state;
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if a person is self-employed in one member state and goes abroad to provide similar
services for up to 24 months, the first state will remain the competent state.
If none of the above apply, the competent state will be the one in which the person is
resident. Residence in Regulation 883/2004 means habitual residence. However, it has its
own EU law interpretation and application and will involve consideration of the person’s
centre of interest.
If more than one state may be the member state, the co-ordination rules provide that they
must come to an agreement on the issue taking account all of the person’s circumstances,
including:
the nature of activity pursued including location, stability and duration;
family status and ties;
unpaid activity including voluntary work;
in the case of students, source of income;
housing situation;
the member state in which the person is deemed to reside for tax purposes;
the person’s intentions.
When will the UK remain the competent state?
If the UK is the competent state for a person because she/he last worked in the UK or is
resident in the UK, the UK will remain the competent state until the person:
starts work in another EEA member state;
receives a pension from another member state and requests that UK cease to be
competent state;
in some cases, moves to another EEA member state and becomes resident there.
In general, if a person is entitled to a UK social security benefit when she/he moves to
another EEA state, the UK remains the competent state for paying benefit until the person
becomes employed or self-employed in the other member state or, in some circumstances,
starts receiving benefit there.
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3.6 Equal treatment
Equal treatment is a fundamental principle of EU law. This prohibits direct discrimination as
well as indirect discrimination where the indirect discrimination cannot be justified. The
European Commission is currently in a dispute with the UK as to whether the right to reside
rule amounts to unlawful discrimination in breach of the principle of equal treatment.
If a person is covered by Regulation 883/2004, she/he is entitled to the same benefits under
the legislation of the competent state as a national of that state.
The competent state must provide equal treatment of benefits, income and circumstances,
so that equivalent benefits should lead to equal entitlement for example to a disability
premium.
3.7 Aggregation
This is a key principle of co-ordination rules.
It means that a person is entitled to add together periods of national insurance, residence,
employment or self-employment in other member states to satisfy rules on entitlement. For
example a person seeking to claim Contribution-based Employment and Support Allowance
can rely on contributions paid in other member states to satisfy the contribution conditions.
The principle is that a person should not lose out because she/he has moved within the EEA.
EXAMPLE
Marek is an EEA national. In 2012 he moved from Slovakia to work in Northern
Ireland. He was involved in an accident and has not been able to work since March
2013. Marek is entitled to Contribution based Employment and Support Allowance
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as aggregation rules mean that he is able to rely on contributions paid while
working in Slovakia in the tax years ending April 2012 and April 2011.
3.8 Apportionment
This means that although the benefit is paid by the competent state, sometimes all the
states in which the person has worked will contribute to the payment of the benefit based
on the proportion of the person’s working life actually worked there.
3.9 Exporting benefits under EC Regulation 883/2004
3.9.1 Benefits exportable on an indefinite basis
The following benefits are fully exportable on an indefinite basis:
invalidity benefits:
long term Incapacity Benefit;
Severe Disablement Allowance;
Contribution-based Employment and Support Allowance after assessment phase and
arguably Contribution-based and Income-related Employment and Support Allowance
during assessment phase;
additional pension;
for those in receipt, prior to 1 June 1992, of Attendance Allowance, Disability Living
Allowance care and mobility and Carer’s Allowance;
old age benefits:
Graduated Retirement Benefit;
Winter Fuel Payment;
age additions and increments to pensions;
survivors cash benefits:
bereavement benefits;
pensions for accidents or occupational diseases:
Industrial Injuries Disablement Benefit;
Reduced Earnings Allowance;
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Constant Attendance Allowance;
Exceptionally Severe Disablement Allowance.
3.9.2 Benefits exportable for a limited period or subject to restrictions
The following benefits can be exported for a limited period or are subject to restrictions:
unemployment benefits (see 3.9.2.1):
Contribution-based Jobseeker’s Allowance – but it is arguable that Income-based
Jobseeker’s Allowance should also be covered;
sickness, maternity and paternity benefits (see 3.9.2.2):
Attendance Allowance;
Carer’s Allowance;
Disability Living Allowance care component;
Personal Independence Payment daily living component;
Statutory Sick Pay;
Contribution-based Employment and Support Allowance assessment phase;
Maternity Allowance;
Statutory Maternity Pay;
Statutory Paternity Pay;
family benefits (see 3.9.2.3 and 3.9.2.4):
Child Benefit;
Child Tax Credit;
Guardian’s Allowance;
child dependants additions in other benefits.
3.9.2.1 Exporting Contribution-based Jobseeker’s Allowance under EU co-ordination rules
If the UK is a person’s competent state, she/he can be paid Contribution-based Jobseeker’s
Allowance for up to three months if:
she/he satisfied the Contribution-based Jobseeker’s Allowance rules for at least four
weeks before she/he left the UK unless authorized by the Department to go abroad
before having claimed for four weeks;
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she/he has registered as a person seeking work in the EEA state that she/he goes to
within seven days and complies with its procedures.
Under the co-ordination rules, other nationals covered will also be able to continue to claim
unemployment benefits from their competent state for up to three months after registering
as a person seeking work in the UK.
EXAMPLE
After she was made redundant in the economic downturn, Loreta claimed an
unemployment benefit in the Republic of Ireland. She notified the unemployment
office of her intention to move to Belfast to seek work. She registered with the
Jobs and Benefits Office in Belfast within seven days of her arrival. Loreta will
continue to receive unemployment benefits for at least three months from the
Republic of Ireland.
NOTE: The UK has classified Income based Jobseeker’s Allowance as a special non
contributory benefit which means that it cannot be exported. This restriction may be subject
to a legal challenge. Advisers should contact the Law Centre’s advice line where this arises.
3.9.2.2 Exporting Disability Living Allowance, Attendance Allowance or Carer’s Allowance
under the co-ordination rules
In C299/05, the Court of Justice of the EU decided that the care component of Disability
Living Allowance could be exported within the EU where the UK remained the person’s
competent state.
In case C537/09, the Court of Justice of the EU decided that the mobility component of
Disability Living Allowance is not covered by the co-ordination Regulation and cannot be
exported out of the UK.
A person will be able to export the care component of Disability Living Allowance,
Attendance Allowance or Carer’s Allowance where the UK remains her/his competent state.
This will generally be satisfied where the person is also exporting a contribution-based
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benefit such as State Retirement Pension or Contribution-based Employment and Support
Allowance. See section 3.5 for rules on competent state.
EXAMPLE
Susan receives Contribution-based Employment and Support Allowance, Industrial
Disablement Benefit and Disability Living Allowance higher rate mobility
component and highest rate care component from the UK. She decides to move to
the Republic of Ireland with her civil partner who has taken up employment there.
Susan will be able to continue to receive contribution-based Employment and
Support Allowance, Industrial Disablement Benefit and the care component of
Disability Living Allowance when she moves to the Republic of Ireland but she will
no longer receive the mobility component of Disability Living Allowance.
3.9.2.3 Exporting family benefits
Child Benefit;
Child Tax Credit;
Guardian’s Allowance;
child dependants additions in other benefits.
Family benefits can be claimed for family members who are living in another EEA state, for
example an EU worker is able to claim Child Benefit for dependent children who live in
another EEA state.
EXAMPLE
Iveta and Marius are EEA nationals. They are self-employed in Northern Ireland.
Their four children reside in Latvia with their grandmother as they wish to complete
their education in Latvia. The couple is entitled to claim Child Benefit and Child Tax
Credit for the children who reside in Latvia.
Also family benefits can be exported. If an EEA national is entitled to Child Benefit and
moves within the EU to work, she/he will be able to continue to claim Child Benefit and Child
Tax Credit from the UK.
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3.9.2.4 Entitlement to family benefits in more than one state
Special rules govern the payment of benefits where there would be entitlement in more than
one member state. If a person is entitled to family benefits under the legislation of more
than one state then the benefit will be paid by the priority state as determined by Regulation
883/2004 and may be topped up if necessary by the state that pays the higher family benefit.
3.10 Overlapping benefit rules
It is a general principle that a person cannot use insurance for the one period to gain
entitlement to benefit in more than one member state. This principle applies with
aggregation and apportionment.
However, member states are not allowed to apply provisions preventing the overlapping of
their own benefits with those of other member states if it would have reduced what the
person would have received from her/his years of contributions in the first member state
alone. So, for example, a person may receive retirement pensions from the UK and another
member state based upon her/his contributions paid in that state.
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Further information
Useful links
Law Centre (NI) Encyclopedia of Rights, information on benefits and tax credits, immigration
and family relationships, employment rights, and rights in community care:
www.lawcentreni.org/EoR
NI Direct, the official government website for Northern Ireland: http://www.nidirect.gov.uk/
Belfast Migrant Centre / Northern Ireland Council for Ethnic Minorities: http://nicem.org.uk/
Northern Ireland Community of Refugees and Asylum Seekers:
http://www.nicras.btck.co.uk/
For a list of migrant support groups in Northern Ireland and of relevant government
organisations: http://www.migrationni.org/support-organisations
Further reading
Welfare Benefits and Tax Credits Handbook 2013/2014, Child Poverty Action Group, 94
White Lion, Street, London N1 9PF
Social Security Legislation 2013/2014, Volumes I and III published by Sweet and Maxwell of
100 Avenue Road, London NW3 3PF
Your Rights in Northern Ireland – a guide for migrant workers, 3rd edition. Published by Law
Centre (NI) and Northern Ireland Human Rights Commission with support from OFMDFM.
Available on www.lawcentreni.org/publications/migrant-workers.html
Free Movement of Persons in the European Union, 2nd edition. Published by Thomson, Sweet
and Maxwell 2012
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Appendix 1
Rules affecting Croatian nationals
Croatia joined the EU on 1 July 2013.
Special rules restrict the access of Croatian nationals to the labour market in the UK until 30
June 2018. These rules may be extended up to two years but must end before 30 June 2020.
Current restrictions on residence rights of Croatian nationals
A Croatian national subject to worker authorization has limited residence rights. She/he:
will not have the right to reside as a jobseeker;
will only have worker status if she/he is a Croatian national requiring authorization,
where she/he has a worker authorization document and is working in accordance with it;
will not retain worker status while still a person covered by the restrictions.
Croatian nationals who are not subject to the worker authorization rules
The rules restricting the access of Croatian nationals to the labour market of the UK begin on
1 July 2013 and will end on 30 June 2018. However, these restrictions may be extended to
30 June 2020. A person will not be subject to worker authorization rules if she/he comes
within the following categories. She/he:
has (or had on 30 June 2013) leave to enter or remain with no restriction on
employment;
was legally working in the UK for twelve months without breaks of more than 30 days up
to 30 June 2013;
has legally worked for twelve months beginning before or after 30 June 2013 without
breaks of more than 30 days;
is a posted worker, a member/ family member of a diplomatic mission;
has dual nationality with the UK or another (non A2) EEA member state;
is the spouse/ civil partner of a UK national or person settled in UK;
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is the spouse/civil partner or child under 18 of a person with leave to enter/remain in UK
that allows employment;
has a permanent right of residence;
is a student with a registration certificate including a statement that she/he shall not
work for more than 20 hours per week unless she/he is on a course of vocational training
and is working as part of that training or is working during vacation;
is the family member of an EEA national who has a right to reside, except where the EEA
national is an A2 or Croatian national subject to worker authorization;
is the family member of an A2 national subject to worker authorization who has a right to
reside as a worker, student, self-employed person or self-sufficient person;
is a highly skilled person and holds an EEA registration certificate confirming
unconditional access to the UK labour market.
Croatian nationals and lawful work
Croatian nationals have a right to be self-employed without any special rules applying.
Where a Croatian national wishes to take a job, check whether she/he will come within one
of the groups above who are not covered by the restrictions, for example where she/he has
completed twelve months lawful work or is the family member of an EEA national with a
right to reside.
A Croatian national who is a student and has an EEA registration certificate that states
he/she may work in the UK for not more than 20 hours per week will not be subject to
worker authorization rules while working within those limits. Also such a person will have a
right to work more than 20 hours per week during vacation periods and also during term
time if the course is a vocational one and the hours worked are in the course of study. A
Croatian national who ceases to be such a student will not be a worker requiring
authorization during a run-on period of four months.
If the person is covered by the restrictions she/he:
will not have a right to reside as a jobseeker for benefit purposes;
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will not retain worker status where employment ends while she/he is still covered by the
restrictions;
will only be able to work legally if she/he has a worker authorization document and is
working in accordance with it.
If the Croatian national is still under a contract of employment, for example during periods of
sick leave or maternity leave (including unpaid leave), she/he may still be a worker.
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Appendix 2
Rules that affected nationals of Bulgaria and Romania (A2 states)
until December 2013
Bulgaria and Romania joined the EU on 1 January 2007. Special rules applied restricting the
access of Bulgarians and Romanians to the labour market in the UK until 31 December 2013
when they came to an end. From 1 January 2014, Bulgarians and Romanians have full EU
rights.
The restrictions that applied are set out below as they may be relevant to determining
whether a person from Bulgaria or Romania had a lawful right of residence before 31
December 2013 and this will be relevant to entitlement to permanent residence status.
Restrictions on residence rights of Bulgarians and Romanians up to 31 December 2013
A Bulgarian or Romanian national subject to worker authorization, had limited residence
rights. She/he:
did not have the right to reside as a jobseeker;
only had worker status if she/he was a Bulgarian or Romanian citizen requiring
authorization, where she/he had a worker authorization document and was working in
accordance with it;
did not retain worker status while still a person covered by the restrictions.
Bulgarians and Romanians who were not subject to the worker authorization rules
The rules restricting the access of Bulgarian and Romanian nationals to the labour market
ended on 31 December 2013. A person was not subject to worker authorization rules if
she/he came within the following categories. She/he:
had (or had on 31 December 2006) leave to enter or remain with no restriction on
employment;
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was legally working in the UK for twelve months without breaks of more than 30 days up
to 31 December 2006;
had legally worked for twelve months beginning before or after 31 December 2006
without breaks of more than 30 days in total;
was a posted worker, a member/ family member of a diplomatic mission;
had dual nationality with the UK or another EEA member state;
was the spouse/ civil partner of a UK national or person settled in UK;
was the spouse/civil partner or child under eighteen of a person with leave to
enter/remain in UK that allowed employment;
had a permanent right of residence;
was a student with a registration certificate including a statement that she/he would not
work for more than 20 hours per week;
was the family member of an EEA national who had a right to reside, except where the
EEA national was a Bulgarian or Romanian national subject to worker authorization;
was the family member of a Bulgarian or Romanian national subject to worker
authorization who had a right to reside as a worker, student, self-employed person or
self-sufficient person;
was a highly skilled person. This applied where the person satisfied Immigration Rules
that applied on 1 January 2007 for entering the UK on that basis and the person had been
awarded a qualification at degree level or higher in the UK and within twelve months of
this had applied for a registration certificate confirming unconditional access to the
labour market.
Bulgarian and Romanian nationals and lawful work prior to 1 Jan 2014
Prior to 1 January 2014, Bulgarian and Romanian nationals had a right to be self-employed
without any special rules applying.
A Bulgarian or Romanian national who was a student and had an EEA registration certificate
that stated she/he may work in the UK for not more than 20 hours per week was not subject
to worker authorization rules while working within those limits. Also such a person had a
right to work more than 20 hours per week during vacation periods and also during term
time if the course was a vocational one and the hours worked were in the course of study.
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An A2 national who ceased to be such a student was not a worker requiring authorization
during a run-on period of four months.
If the person was covered by the restrictions, she/he:
did not have a right to reside as a jobseeker for benefit purposes;
did not retain worker status where employment ended while she/he was still covered by
the restrictions;
was only be able to work legally if while working she/he had a worker authorization
document and was working in accordance with it.
If the Bulgarian or Romanian national was still under a contract of employment, for example
during periods of sick leave or maternity leave (including unpaid leave), she/he was still a
worker.
This document contains complex legal concepts and is targeted
at advisers. Anyone seeking further advice and information
may contact the Law Centre’s advice line:
028 9024 4401 or 028 7126 2433
Monday to Friday, 9.30am to 1pm
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Disclaimer: Although every effort is made to ensure the information on these pages is accurate and up-to-date, we cannot be held liable for any inaccuracies and their consequences. The information should not be treated as a complete and authoritative statement of the law.
Law Centre (NI) only operates within Northern Ireland and the information in this document is only relevant to Northern Ireland law.
When reading Law Centre documents, please pay attention to their date of publication as legislation may have changed since they were published.
© Law Centre (NI) and Belfast Integration and Participation Project 2014
ISBN 978-1-872299-29-7
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9 Clarendon StreetDerry, BT48 7EPTel: 028 7126 2433Fax: 028 7126 2343Email: [email protected]
How does immigration status affect a person’s entitlement to benefit?What is habitual residence? What does right to reside mean for benefit entitlement?
Migrants and Benefits deals with these and other common issues that arise where migrants need advice on benefit entitlement. The guide is written for advisers and contains tips for dealing with difficult situations and practical guidance.
Belfast Integration and Participation ProjectBelfast Integration and Participation Project (BIPP) is a partnership between Belfast City Council, GEMS NI, Law Centre (NI) and South Belfast Roundtable. BIPP aims to improve the integration and participation of migrant and minority ethnic communities in the City.