Tag Archives: Eligibility

Family Members

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A Family member is defined in the Immigration (EEA) Regulations 2006, reg 7 as:
  • spouse or civil partner;
  • direct descendants including those of a spouse or civil partner who are:
  • under 21;
  • or
  • their dependants
  • dependent direct relatives in the ascending line including those of a spouse or civil partner; or
  • "extended family members" who have been issued with an EEA family permit, a registration certificate or a residence card and who satisfy the conditions in Regulation 8.
In PG v VG [2007] UKAIT 19, it was held that "direct" is not confined to the first generation but can include grandchildren, but not nieces, nephews, uncles or aunts. This approach was followed in Bigia & others v Entry Clearnace Officer [2009] EWCA Civ 79, at para [4].
Dependant in this context means that the family member needs the material support of the EEA national or his or her spouse in order to meet their essential  needs in the country of origin: see Jia v Migrationsverket, Case C-1/05. Proof to establish material support may be adduced by any appropriate means and is not confined to financial dependency. In Pedro v Secretary of State for Work and Pensions [2009] EWCA Civ 1358, the Court of Appeal held that the Directive did not specify when the dependency had arisen, nor did it require that the relative had to be  dependent in the country of origin. It was sufficient if the dependency arose in the host Member State.
In Metock & others v Minister for Justice, Equality and Law reform, Case Claimant- 127/08, the ECJ decided that the national law of Ireland was inconsistent with the Directive on the free movement of Union citizens insofar as it only permitted nationals of non-Member States to join family members in Ireland if those nationals had previously been resident in another Member State. Nothing in the Directive made its application conditional upon the applicant family member of a Union citizen having previously resided in a Member State. The definition of family    member was not distinguished according to whether or not they had already lawfully resided in another Member State. It followed that the Directive had to be interpreted as applying to all nationals of non-Member States who were family members of a Union citizen, irrespective of where they had resided prior to their arrival. The Directive conferred upon such family members the right to join the Union citizen in the host Member State whether he had become established there before or after founding a family; either way a refusal by the host Member State to grant them a right of residence was equally liable to discourage that Union citizenfrom exercising his or her rights of residence. Limiting the application of the Directive solely to the family members of a Union citizen who "accompanied" or "joined" him was equivalent to limiting the rights of entry and residence of family members of a Union citizen to the Member State in which that citizen resided.
On 2 June 2011 the Immigration (EEA) (Amendemt) Regulations 2011, SI No. 1247, amended the Immigration (EEA) Regulations 2006 to reflect the Metock decision.

Student

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A student is a person who is enrolled, for the principal purpose of following a course of study (including vocational training), at a public or private establishment which is financed from public funds or otherwise recognised by the Secretary of State as an establishment which has been accredited for the purpose of providing such courses or training within the law or administrative procedure of the part of the UK in which the establishment is located, who has comprehensive sickness insurance in the UK, and who assures the Secretary of State, by means of a declaration, or by such equivalent means as the person may choose, that he has sufficient resources not to become a burden on the social assistance system of the UK during his period of residence. 

Self-Sufficient Person

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A self-sufficient person is a person who has pursuant to I(EEA) 2006, reg.4(1)(c): sufficient resources not to become a burden on the social assistance system of the UK during his period of residence; and comprehensive sickness insurance cover in the UK.

 

A self-sufficient person is most unlikely to be eligible under Part 7 because the need for social housing will mean that he has become a burden on the social assistance system of the UK and therefore cannot have a right to reside on the basis of self-sufficiency.

 

See also the guidance published by the European Communities on 2 July 2009 on the interpretation of the Directive in respect of insurance requirements. Para 2.3.2 provides that any insurance cover, public or private, contracted in the host Member State or elsewhere, is acceptable in principle, as long as it provides comprehensive coverage and does not create a burden on the public finances of the host Member State.

 

On 2 July 2009 the Commission of the European Communities published guidance on the interpretation of the Directive. Paragraph 2.3.2 states that any insurance cover, private or public, contracted in the host Member State or elsewhere, is acceptable in principle, as long as it provides comprehensive coverage and does not create a burden on the public finances of the host Member State. This suggests that private health insurance may not be necessary, and raises the possibility that NHS cover is sufficient.      

In Tameside Metropolitan Borough Council [2010] UKUT 243, a Polish national who was receiving an invalidity pension from Sweden was held to have comprehensive sickness cover by virtue of Regulation 1408/71, now Regulation 883/04, because these provisions allowed the UK to claim back the cost of her NHS care from Sweden, however she did not have sufficient resources, taking into account her housing needs and the fact that her stay in the UK was intended to be permanent.

In SSWP v. SW UKUT 508the Upper Tribunal stated that a person could be self sufficient by virtue of being entitled to treatment under the National Health Service by virtue of satisfying the residence and presence conditions under domestic law.

However in Ahmad v Secretary of State for the Home Department [2015] 1 W.L.R. 593the Court of Appeal heldthat the right to a permanent residence card was a privilege which was not conferred unless there was strict and literal compliance with the conditions therein; that, therefore, “comprehensive sickness insurance cover” did not include the public healthcare system of the host state; and that, accordingly, where an EEA national entered the United Kingdom and was not involved in an economically active activity, her residence and that of her family members would not be lawful, if either wished to stay longer than three months, unless she had comprehensive sickness insurance cover while she was economically inactive in the five years following her arrival, and her family members would <not, therefore, qualify for permanent residency in the United Kingdom.

Self-Employed Person

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A "self-employed person" means a person who establishes himself in another EEA state in order to pursue activity as a self-employed person in accordance with article 43, European Community Treaty (now Article 49 of the TFEU): I(EEA) 2006, reg.4(1)(b). Essentially, this means a person who is working outside a relationship of subordination: see Jany v Staatssecretaris van Justitie, Case C-268/99 at para [34].

 

A person who is no longer in self-employment shall not cease to be treated as a self-employed person if he is temporarily unable to pursue his activity as a self- employed person as the result of an illness or accident: I(EEA) 2006 reg.6(3).

 

However, the other categories for retention of worker status applicable to the employed do not apply to the self-employed: see R (Tilianu) v Secretary of State for Work and Pensions [2010] EWCA Civ 1397.

Worker

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A "worker" means a worker within the meaning of EU law. The term has been exhaustively considered by the European Court of Justice.  There are three essential criteria which determine whether a person is a worker:
 

(i) the person must perform services of some economic value. The activity must be real and genuine, to the exclusion of activity on such a small scale as to be regarded as purely marginal and ancillary;
(ii) the performance of such services must be for and under the direction of another person. Any activity performed outside a relationship of subordination must be classified as an activity pursued in a self employed capacity;
(iii) the person concerned must receive remuneration. Neither the origin of the funds from which the remuneration is paid nor the limited amount of that remuneration can have any consequences with regard to whether or not the person is a worker. This is true even if the worker relies upon welfare benefits to supplement his income; There has been recent confirmation of this principle in Vatsouras and Koupatantze v Arbeitgemeinschaft (ARGE) Nurnberg 900, C-22/08 and C-23/08.
 

In Elmi v SSWP [2011] EWCA Civ 1403, the appellant was an EEA national who had become involuntarily unemployed and then claimed income support. She ticked the box on the application form stating that she was looking for work. The Court of Appeal held that she had registered with the employment office as a jobseeker, even though she was in receipt of income support and not jobseeker's allowance, and had therefore retained her worker status.  

 

The fact that the employment is of short duration cannot, of itself, exclude the employee from being a worker: see Barry v Southwark LBC [2008] EWCA Civ 440; [2009] HLR 30 (steward at Wimbledon). Even working just ten or twelve hours per week does not necessarily preclude a person from being a worker.
 

A person who ceases to be employed does not lose "worker" status instantly, I(EEA) 2006 reg.6(2). A person who is no longer working shall not cease to be treated as a worker if:
• he is temporarily unable to work as the result of an illness or accident;
• he is in duly recorded involuntary unemployment after having been employed in the UK, provided that he has registered as a jobseeker with the relevant employment office and he was employed for one year or more before becoming unemployed;
OR
 he has been unemployed for no more than six months;
OR
he can provide evidence that he is seeking employment in the UK and has a genuine chance of being engaged;
OR
he is involuntarily unemployed and has embarked on vocational training;
OR
he has voluntarily ceased working and embarked on vocational training that is related to his previous employment.
 

In this context, "temporary" means not permanent. In Secretary of State for the Home Department v FB [2010] UKUT 447 (IAC), at [23]-[26], it was held that for the purposes of regulation 6(2)(a), a person whose inability to work as a result of illness or accident is not permanent, is temporarily unable to work.
 

In Secretary of State for Work and Pensions v JS (IS) [2010] UKUT 131 (AAC), it was held that an EU citizen who was no longer employed or on maternity leave from work and who was pregnant, did not retain her status as a worker and therefore had no right to reside in the UK.

 

This is to be contrasted with the position of a woman on maternity leave. In Secretary of State for Work and Pensions v Maria Dias [2008] EWCA Civ 807, the Secretary of State agreed that Ms Dias retained her worker status whilst on  maternity leave and the Court of Appeal proceeded on the basis this was correct:  see [18]. To succeed with such cases, the woman should be on a formal period of  maternity leave from her employment, or on statutory maternity pay or maternity allowance if self-employed.

Reliance on Ineligible persons for Homelessness / Priority need

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Section 185(4) of the Housing Act 1996 originally required authorities to disregard ineligible household members when deciding whether an eligible applicant was homeless or in priority need.

Section 185(4) formerly required authorities to disregard ineligible household members when deciding whether an eligible applicant was homeless or in priority need. However, in R (Morris) v Westminster CC [2005] EWCA Civ 1184 [2006] HLR 8, concerning a British citizen with a daughter subject to immigration control, the Court of Appeal declared Section 185(4) incompatible with Article 14 of the European Convention on Human Rights when read with Article 8.

The government responded by amending Section 185(4) by operation of the Housing and Regeneration Act 2008 Section 314 and Schedule 15. This provided that for all applications made on or after 2 March 2009 the restriction only applies to eligible applications who are subject to immigration control, except for EEA and Swiss nationals. When considering an application from such a applicant, authorities must continue to disregard any dependents or other household members who are ineligible for assistance, for the purposes of deciding whether the applicant is homeless or has a priority need.

The lawfulness of the old Section 185 was considered by the European Court in  Bah v UK 56328/07 [2011] ECHR 1448.  Schedule 15 was described as an "inadequate and grudging approach" to the Morris declaration but the Court expressly stated that they were not ruling on the discriminatory effect of the amendments. They held that it was the immigration status of the child that resulted in his mother's differential treatment but it was reasonably and objectively justified by the need to allocate, as fairly as possible, the scarce stock of social housing in the UK and the legitimacy in so allocating, of having regard to the immigration status of those who are in need of housing. Accordingly, there was no violation of Article 14, when taken in conjunction with Article 8 of the European Convention on Human Rights.

Applicants who are not subject to immigration control, and all EEA and Swiss nationals are now able to rely on ineligible household members to prove that they are homeless and/or in priority need. This does not give such applicants exactly the same rights as applicants who do not have to rely on such household members. An application pursuant to which the authority would not be satisfied that the applicant was homeless or had a priority need , but for the 'restricted person' is called a restricted case. A restricted person is a person who is ineligible and subject to immigration control who either does not have leave to enter or remain in the UK or who has leave subject to a condition of no recourse to public funds.

Section 185(4) as amended still requires authorities to consider the eligibility of household members. It applies to all applications made on or after 2 March 2009 by ineligible applicants who are themselves subject to immigration control.  It does not apply to EEA and Swiss Nationals.

When considering an application from such applicants, authorities must continue to disregard any dependents or other household members who are ineligible, when deciding whether the applicant is homeless or has a priority need.

Applicants who are not subject to immigration control, and all EEA and Swiss nationals, are however now able to rely on ineligible household members to show that they are homeless or in priority need. However, where a full housing duty would be accepted as a result, these cases become "restricted cases" and the applicants do not have exactly the same rights as "normal" applicants.

In a restricted case, the authority must, so far as reasonably practicable, bring the full housing duty to an end by arranging for a private sector offer to be made. This means an offer of an assured shorthold tenancy of at least 12 months made by a private sector landlord to the applicant with the approval of the local authority pursuant to arrangements made by the authority with the landlord.

In a restricted case, the full housing duty ends if the applicant, having been informed of the possible consequences of refusal of the offer and the right to request a review of the suitability of the accommodation, either accepts or refuses a private rented sector offer. Where it is not reasonably practical to bring the full housing duty to an end with a private rented sector offer, the authority may discharge the duty in the same way as any other application.

The Court of Appeal granted permission for a challenge to the lawfulness of the restricted cases regime in Lekpo-Bozua v Hackney LBC [2010] EWCA Civ 90 [2010] HLR 46 but the issue was not pursued in the substantive appeal because the cases did not in fact involve a restricted case.

 

 

EEA Nationals Permanent Right To Reside

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EEA nationals who have resided in the UK for a continuous period of five years obtain the right permanently to reside in the UK  pursuant to  I (EEA) Regulation 15 2006. Family members who are not EEA nationals but have resided with an EEA national for a continuous period of five years also obtain the right.
Workers or self-employed persons who have ceased employment (and their family members) also acquire a permanent right of residence. A person who was a family member of a worker or self-employed person has a permanent right to reside if:
• the worker or self-employed person has died;
• the family member resided with him immediately before his death; and
• the worker or self-employed person had resided continuously in the UK for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease.
The nature of the permanent right to reside has been the subject of several recent decisions of the ECJ. In Secretary of State for Work and Pensions v Taous Lassal & CPAG, C-162/09, it was recognised that the permanent right to reside contained in Article 16 of the Directive did not appear in previous legislation. However, continuous periods of five years' residence completed before the Directive came into force on 30 April 2006, and in accordance with the earlier legislation, must be taken into account for the purposes of the acquisition of the right of permanent residence under Art.16. Absences fro the host Member State of less than two consecutive years which occurred before 30 April 2006, but after a continous period of five years' legal residence completed before that date, do not affect the acquisition of the right of permanent residence pursuant to Art.16.
The decision was followed by the ECJ decision in Secretary of State for Work and Pensions v Maria Dias, C-325/09 in July 2011. Time spent in the UK by Ms Dias when she had no right to reside but was in possession of a residence permit granted by the national authorities, did not constitute legal residence and therefore could not count towards the five years required for permanent residence under Art. 16 of the Directive. However, it may still be possible to argue that the holder of a valid residence permit is entitled to social assistance: see R (Bidar) v LB of Ealing and Secretary of State for Education and Skills, Case C-209/03 at [37], and Trojani v Centre Public d'Aide Sociale de Bruxelles (CPAS), Case C-456/02 at [43]-[46].
Also relevant is McCarthy v Secretary of State for Home Department, Case C-434/09. Mrs McCarthy held dual British and Irish nationality. She was born and had always lived in England where she married a Jamaican national who lacked leave to remain in the UK. The couple applied for but were refused residence permits as an EU citizen and the spouse of an EU citizen. The ECJ considered that all Union citizens who "move to" or reside in a Member State "other" than that of which they were nationals were beneficiaries of the Directive. However, the Directive could not apply to a Union citizen who enjoyed an unconditional right of residence due to the fact that he resided in the Member State of which he was a national. The residence to which the Directive referred was linked to the exercise of the freedom of movement of persons. The territorial scope of the right of residence and the right of permanent residence referred to the Member State to which a Union citizen "moves" in order to exercise their right of free movement. As Mrs McCarthy had never exercised her right of free movement and had always resided in the Member State of which she was a national, she was not covered by the concept of "beneficiary" for the purposes of Art.3(1) of the Directive. Accordingly, art.3(1) was to be interpreted as  meaning that the Directive was not applicable to a Union citizen who had never exercised his right of free movement, who had always resided in a Member State of which he was a national even if they were also a national of another Member State (see paras 32-43 of judgment).

Jobseeker

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A jobseeker is a person who enters the UK in order to seek employment and can provide evidence that/ he is seeking employment and has a genuine chance of being engaged: I(EEA) 2006 reg.6(4).
In England jobseekers are ineligible under Part 7 of the Housing Act 1996. This discriminates against applicants with that type of right to reside, but may be justifiable and proportionate such that there is no breach of article 18 of the Treaty of the European Union (“TFEU”)

Initial Right To Reside

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The Initial right of residence pursuant to Regulation 13 lasts for no longer than three months from arrival in the UK and is on condition that the EEA national or his family members do not become an unreasonable burden on the social assistance system of the UK. In England a person who has an initial right of reside in ineligible under Part 7 of the Housing Act 1996. This discriminates against applicants with that type of right to reside, but may be justifiable and proportionate such that there is no breach of article 18 of the Treaty of the European Union ("TFEU")