Social Welfare Law and Practice
To what extent has immigration status become a major barrier to accessing support from the social welfare system?
On 12 December 2012, Home Secretary Theresa May delivered a speech. In this speech,
'An Immigration System that Works in the National Interest' she talked about, what she
called, the three main reasons of why it's important to control immigration. The reasons
being:
-
it's effect on social cohesion,
-
on our infrastructure and public services, and
-
on jobs and wages1
In this speech, she discussed the enormous task of building an integrated and cohesive
society after years of mass immigration, also, its impact on the availability of housing, the
transport system, the national health system and the downward pressure immigration puts
on wages.2
With this mass immigration there also comes the issue of what rights to welfare to
migrants and asylum seekers have ?. In the discussing this we will have to consider
immigration and asylum law, and how immigration status and welfare works
.
There are two key groups that have the right to enter reside in the United Kingdom these
being:
1---British nationals, which consist of six different forms as defined by the British nationality
Act 1981 which came into force on 1 January 1983.
The forms of nationality are:
-
British citizenship
-
British overseas citizenship
-
British overseas Territories citizenship
-
British National
-
British protected person; and
-
British subject
2--- Citizens of European Economic Area Countries (the EEA)
this includes EU countries citizens exercising free movement rights and the family
members: assisted by EC directive 2004/383
However, although an EU national is able to reside in the UK, in order to access benefits
.Social housing, and other welfare rights, she or he must acquire and keep 'the right to
reside'.(RtR) The right to reside at has a gateway to welfare rights. If a person, having
come to the UK, is economically inactive then she or he may lose the right to reside-and
then have no right to assistance. Having a RtR not simply mean that a person can live in a
particular country. A person who moves from one EEA country to another has a RtR if they
are economically active, or are able to support themselves.
The benefits covered by the RtR requirement are:
income support
income-based jobseeker's allowance
income related employment and support allowance
pension credit
housing benefit
Council tax benefit
child benefits
Child tax credit,and
housing assistance from local authorities
The RTR requirement does not apply to claims for other benefits, including extra cost
benefits such as DL A4 and those were eligibility depends on national insurance
contributions such as contribution-based Jobseekers Allowance and contributory ESA5.
Under EC law people can use to period spent working and/or contributing in other EEA
countries to help satisfy the contribution conditions bodies benefits (but only they also
worked unpaid contributions in the UK before making the claim. Other work-related
benefits include SMP6, SSP7 and Industrial Injuries benefits are also payable regardless of immigration status or nationality.8
The RtR9 Directive gave everyone, including economically inactive people, a right to reside
for the first three months; but the UK government amended the rules on access to
benefits to ensure people who have a right to reside solely on the new three-month right
of residence will not satisfy the requirements.
Article 710 sets out to us the RtR after the initial three-month period. This includes:
“Workers are self-employed persons in the host member state, and families, and
students attending institutions in the host member state and their families, provided
they can support themselves”
A 'worker' has the right of residence-and ready access to benefits and tax credits for as
long as they are in 'genuine and effective work.'11
“The fact that the activities are only pursued for a short period of time or that they are perhaps other non-recurring character relate to the the amount of work performed by a person and must be taken into account when establishing the
'effective and genuine' or 'marginal and ancillary' nature of activities”12.
There has been many cases in regards to the RtR. In Abdirahman,13 the case regarding a
Swedish national, who came to England from Sweden on first of March 2004 with her
three children. She stated that her reason for coming was that she had family in the UK
and intended to remain in the UK permanently. At the relevant time she did not work and
was not seeking work in the UK. She claimed income support on 13 May and then on 2
August 2004; on June 1 she claimed housing benefit and council tax benefit. The claim to
income support was rejected on the basis of finding that she did not have a RTR and was
therefore a 'person from abroad' and not entitled to support. Her applications for housing
benefit and council tax were rejected on the same basis. She appealed, against objection
to the appeal tribunal successfully. The Secretary of State for Work and Pensions appealed this decision to the Social Security Commissioner who reversed the appeal tribunal's
decision.
In Patmalneice, the Court of Appeal considered the compatibility of the UK RtR
requirement with Regulation 1408/71 on coordination of Social Security for migrants
[1971] OJ L149/2.. The court felt this case was different to Abdirahman, as it fell within the
personal and material scope of Regulation 1408/7114.
In Patmalneice, Ms Patmalneice Latvian citizen born in 1938, had moved to the UK in
2000. After on an unsuccessful asylum claim, she remained with no steps taken to deport
her. However, she did not have any RTR in UK law (within the meaning of the term for
Social Security purposes). Her only income was a Latvian pension ( £50 p mth), to claim
state pension credit in 2005. In order to qualify for state pension credit, she had to be 'in
Great Britain' which in turn required to show that she was 'habitually resident'15 in Grea
t Britain or the Republic of Ireland. Her claim was refused. She appealed16, and this was
rejected by a Social Security Commissioner. She appealed further to the Court of Appeal
, and argued that the RTR test could only be satisfied by UK nationals, but, not so by
nationals of other countries. 17
“Shall be subject to the same obligations and enjoy the same benefits and that legislation of any member state as nationals of that state”
The Court of Appeal did not except that the requirement was directly discriminatory, but it
did hold that it had a disproportionate impact on nationals of other member states, and
therefore, required to be objectively justified.18 The court followed reasoning in
Abdirahman
to the effect that it was legitimate and proportionate to deny benefits to a non-economic
migrant who could not otherwise support herself19 The court looked to the 'purpose and effect' of Regulation 1408/71 which it identified as being 'to promote and maintain the
treaty rights of workers to freedom of movement.'20 The court argued that this purpose
have not been changed by the widening of the scope of the regulation to include special
non-contributory benefits'.21
The court took the view that as Patmalneice was not a migrant worker in that state,
pension credit22 had 'not lost its characteristics of social assistance', the case involved a
denial of social assistance benefits to a non-economic migrant. Therefore, it would be
inconsistent with the previous decisions in Abdirahman and Kaczmarek not to find that the
right to resign requirement was objectively justified.23
The court also accepted the Secretary of State submissions that the indirect discrimination
was based on considerations independent of nationality or proportionate to the legitimate
aim, namely that of protecting resources of the UK.
In his article, 'Paying their way?', Keith Puttick states of Patmalneice;
“Her exclusion from a right of residence, and therefore from state pension credit- the most basic support needed to secure dignity in old age would you really are available to most UK and Irish claiments, including those who may never have been any kind of paid employment- to that so much of the value of European Union citizenship. Nor does it set much of a standard that the quality of the EU nationals can expect when the reside in other Member States have to spend most of their adult life in employment in another EU state”24
In Kaczmarek, the claimant, a Polish national, came to the United Kingdom as a student in
2002. She later worked as a kitchen assistant in a nursing home on a part-time basis from
June 2003 until April 2004 and on a full-time basis from May 2004 to July 2004. She was
on maternity leave from August 2004 until February 2005. She in October gave birth to a
daughter in 2004. Although it had been her intention to return to work, her daughter's
health was not good and she could not afford a child-minder. In May 2005, she applied for
income support. Her application was rejected, but, she successfully appealed to the independent appeal tribunal. The Secretary of State appealed to the social security
Commissioner who allowed the appeal
.
The claimant appealed
.
The claimant submitted that a person with her employment record, whilst economically
inactive at the time of her claim for income support, was nevertheless eligible. She relied
on Trojani, in which it had been said;
'That a citizen of the European union who is not economically active could rely on Art12 of the EC Treaty where he had been lawfully resident in the host member state a certain time or possess a residence permit.25'
She also submitted that it was disproportionate under Art 18 EC, to deny a right of
residence, and thereby entitlement to income support, to a claimant who was lawfully
residence and has substantially settled as she was.
.
In dismissing her appeal, it was stated:
'The reference to lawful residence 'for a certain time' in Trojani did not open the door to eligibility based on residence of unspecified but significant duration or of a type which evidence decree of social integration in the host member state. The reference to a 'certain time' was a reference to specific qualifying periods which gave rise to an address right of residence. By its juxtaposition with 'or possesses a residence permit', it was being advanced as one of two ways in which an economically inactive migrant could rely on Art 12 as a result of specific and substantive entitlement.
Moreover, it would be wholly undesirable if Art 12 would you give rise to an open textured temporal modification of the kind suggested by the claimant. Eligibility was primary and more appropriately a matter for normative regulation rather than discretion or subjective evaluation of the case by case basis. Article 12 should be approached with that in mind.26
As we can see from these three cases alone, even for EU nationals the RTR, and
therefore, access to benefits, is not such a straightforward matter, that European Union
citizenship suggests. But what on Non-EU entrance and residents?.
Other countries nationals are sometimes referred to as 3rd Country ('TCN'S) or non-EU
Nationals and they are subject to more demanding entry and residence controls.
A person who is not a UK or EEA national , and is subject to immigration control, is
generally barred at most UK benefits and social welfare support27
A person is subject to immigration control means a person is not a national of an EEA
State and who:
Requires leave to enter or remain in the United Kingdom but does not have it;
has leave to enter or remain in the United Kingdom to subject the condition that he does not have recourse to public funds;
has leave to enter or remain in the United Kingdom given as a result of maintenance undertaken28
benefits are generally dependent on the claimant being 'present' in the UK. This generally
means having a settled abode here, and address. Benefits being generally all means-
tested benefits and most non-means tested benefits. As in for Housing Benefit, 'the person
must be liable for payments in respect of dwelling in Great Britain 'would you occupies as
his home'29 and as for Tax Credits, 'claimant must be 'present' in the UK physically and
legally, under the Tax Credit Act 2002 this means being legally resident.
The main route of entry for TCN'S is for work purposes, but, there is a much tougher
criteria and have a 'points' based system. There is also the issue of family reunification,
i.e. two join settled spouses, partners, but it is getting increasingly tough to entry on
the grounds that you wish to marry, as there now many restrictions, aimed at curbing
forced marriages and sham marriages.30 Family members of TCN'S, can be sponsored by
a husband /wife, or relative but only if they have a RtR.
On 29 November 2010, An English language requirement was introduced. This was
requirement for non-European migrants who are applying to enter or remain in the UK, as
the husbands, wives and civil partners of British citizens and people settled here. You
could meet the requirement if you could show that:
you are a national of a majority English-speaking country; or
have past an English language test approved at the appropriate level; or
hold the degree that was taught in English and is equivalent to a UK bachelor's degree or above
The exemptions being:
You are aged 65 and over when you make your application: or
you have a physical or mental condition which would prevent you from meeting the requirement; or
there are exceptional compassionate circumstances which would prevent you from meeting the requirement.
In R (Chapti)31, the claimants maintain that the new rule is disproportionate and unlawful
interference with their spouse's right to family life and to marry under Articles 8 and 12 of
the ECHR32, and discriminatory, on the grounds particularly of race and nationality. The
Home Secretary, maintained that the new rule was justified means to promote integration
and protect public services.
The applications were dismissed by Mr Justice Beaston. He held:-
“The new rule is not interfere with Article 12 rights of the claimant's, since it does not prevent marriage within the United Kingdom were both parties are present, prevent anyone within the United Kingdom from travelling abroad to get married.
The new rule impacts on article 8 rights of the claimant's, but its aims, to promote integration and protect public services, are legitimate aims within Article 8”33
In August 2011, it was reported that espouses and family members of migrants in the UK
could face tougher English-language tests before they are allowed to settle permanently
in the country if the government goes ahead with changes to immigration rules
.
The government says that the current rules are undermining public confidence,
and, it wants to end what it says are variations in the rules for different categories of family
reunions, which it says accounted for 114,000 migrants in 201034.
Home Office Minister Damian Green said:
“This consultation is about better family migration- better for migrants immunities and the UK as a whole”35
He also stated:
“We will not tolerate abuses. And if you cannot support your foreign spouse or partner, you cannot expect the taxpayer to do it for you.”36
From November 2011, in a, 'Statement of Change in Immigration Rules, HC760.'37
changes were made reason that minimum income requirement for sponsorship under the
'Family Migration Route Points-Based System'. The new minimum income threshold was
set at £18,600 from those who wish to sponsor the settlement in the UK a partner of non-
European Economic area nationality, a higher threshold will be required for sponsoring any
dependent child under the age of 18 in addition to the partner: £22.400 for one child and
an additional £2,400 for each third child sponsor before the migrant parent. qualifies for
settlement, making it clear that a relationship with a partner must be genuine and
subsisting.
It also increased the minimum probation period from two years to 5 years before the
migrant partner can apply for settlement. Abolishing the scope for immediate settlement
for the migrant partner where a couple have been living together overseas for at least four
years. In regards to adult dependent relatives, they, will only be able to apply to settle in
the UK from overseas and will have to demonstrate that, as a result of age, illness or
disability, they require a level of personal care that can only be provided in the UK by the
relative here and without recourse to public funds.38
In Quila,39 the Government tried to regulate entry with restrictions on entry for marriage
The case concerned the application of Rule 277 of the immigration rules(HC 395) under
which the spouse or civil partner of a British national someone settled in the UK is
prevented from entering and settling in the UK either party is under the age of 21. But, the
court concluded that the Secretary of State had failed to establish that the interference
with the rights of the respondents under article 8, which protects the right to private life,
that had been caused by the rule was justified.
Baroness Smith of Basildon, In a 'Motion of Regret', stated:
“Perhaps the government asked the Migration Advisory Committee: “what will be the best way of ensuring that does bring in a spouse or dependent children into this country would not have recourse to public funds”.”40
Whether or not the raising of income threshold, or the language test will cut the number of
migrants applying for benefits to public funds will work only time will tell, but, until the
Government rethinks its immigration policy, benefit claimants will increase until they have
reached an unsustainable level.
​
1 An Immigration System that Works in the National Interest, Home Secretary Theresa May, 12 December 2012
http://www.homeoffice.gov.uk/media-centre/speeches/home-secretary-imm-speech-dec12.Accesses 1/1/2013
2 IBID
3 EC directive 2004/38, The right of citizens of the union and their family members to move and reside freely within the territory of the member states
4 Disability Living Allowance
5 Employment & Support Allowance
6 Statutory Maternity Pay
7 Statutory Sick Pay
8 EEA nationals:the 'right to reside' requirement for benefits, 5 dec 2011 Steven Kennedy House of Commons Library
9 2004/38/EC
10 The Social Security (persons from Abroad) Amendment Regulations 2006 SI 2006/1026
11 Ch/3314/2005, CIS/3315/2005 pras 21-30;
12 Case C-357/89 (1992) ECR 1027
13 Abidrahman v Secretary of State for Work and Pensions [2008] 1 WLR 254, CA
14 ADMINISTRATIVE COMMISSION OF THE EUROPEAN COMMUNITIES ON SOCIAL SECURITY FOR MIGRANT WORKERS No 125 of 17 Oct concerning to use of the certificate concerning the applicable legislation (Form 101) where the posting does not eceed three months )86/C141/03)
15 (To be habitually resident a person must have a RTR)
16 She appealed on the grounds that the RTR was discriminatory and in breach of Regulation 1408/71
17 She further argued that this was contrary to art.3 of Regulation1408/71 which provides that persons covered by Regulation 1408/71
18 At Patmalneice [2009] EWCA Civ 621; [[2009] 3 C.M.L.R.36 at [22]-[24],[26]
19 At Patmalneice [2009] EWCA Civ 621; [[2009] 3 C.M.L.R.36 at [27] et seq.
20 At Patmalneice [2009] EWCA Civ 621; [[2009] 3 C.M.L.R.36 at [34]
2 1By Regulation 1247/92 discussed at patmalneice [2009] ECWA Civ 621;[2009] 3 C.M.L.R.36 at [37]-[43]
22 (despite its inclusion is a special non-contributory benefit in regulations of 1408/71)
23 At Patmalneice [2009] EWCA Civ 621; [[2009] 3 C.M.L.R.36 at [47]-[53]
24 Paying their Way? Contesting 'Residence', self-sufficiency,and economic inactivity barriers to EEA nationals' social benefits; prportionality and discriminatiom, Kieth Puttick, Journal of Immigration Ayslum and Nationality Law 2011
25 Trojani v Centre d'Aide Sociale de Bruxelles (CPAS): C-456/02[2004] All ER (EC) 1065
26 Ibid.
27 Immigration and Asylum Act 1999 s.115
28 Written undertaking by another person in pursuance of the immigration rules to be responsible for that person.
29 Social Security Contributions and Benefits Act 1992 s 130 (1)
30 A Church of England Vicar jailed for 2 and a half years after staging more that 20 sham marriages in Greater Manchester
www.ukba.homeoffice.go.uk/sitecontent/newsarticles/2012/january/92-marriages-vicar
31 R (Chapti) v Secretary of State for Home Affairs [2012] 2 All ER 653
32 European Convention on Human Rights
3 3Ibid
34 Uk proposes tougher English language test for family migration, Max de Lotbiniere,The Guardian, Tuesday 2 August 2011
www.guardian.co.uk/education/2011/aug/uk-proposes-toughermigration-rules
35 Ibid
36 Ibid
37 STATEMENT OF CHANGE IN IMMIGRATION RULES, Presented to Parliament pursuant to section 3(2) of the Immigration Act 1971
22 November 2012.
38 Ibid
39 Quila v Secretary of State for Home Department [2012] 1 AC 61
40 Statement of Changes in Immigration Rules, Motion of Regret, Moved by baroness Smith of Basildon, 23 October 2012.