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Right to reside 7046 Where a person is actually habitually resident they need to show that they have a right to reside in order to get benefit. The onus is on the claimant to show that they have a right to reside in the common travel area. Nevertheless, it should be noted that the following have the right to reside in the UK: 1. a UK national 2. a person granted leave to enter or remain by an Immigration Officer or the Home Office 3. a refugee 4. a ”qualified person” 5. a family member of a “qualified person” 6. a “family member who has retained the right of residence” 7. a “worker or self-employed person who has ceased activity” 8. a person with a permanent right of residence. UK nationals 7047 Section 2(1)(a) of the Immigration Act 1971 gives the right of abode in the UK to British citizens. A person granted leave to enter or remain 7048 Persons granted leave to enter or remain have the right to reside for the duration of that leave. If an application for an extension is made before the leave expires, the claimant is deemed to have leave until a decision is made. Exceptional Leave 7049 Housing benefit regulations refer to exceptional leave but from 1.4.03 exceptional leave was replaced by two new categories of leave to enter or remain in the UK outside the immigration rules. They were discretionary leave and humanitarian protection. However, from 9.10.06 a grant of humanitarian protection is now made within the immigration rules. 7050 At the same time a new category of exceptional leave was introduced. It is known as “leave outside the immigration rules” and is granted when the person does not qualify for discretionary leave or a grant of humanitarian protection. 7051 Discretionary leave, leave outside the immigration rules and a grant of humanitarian protection are rights of residence. Refugees 7052 The Home Office grants refugee status to people who are unable or unwilling to return to their country of origin because of a well-founded fear of persecution. Refugees are normally granted asylum for four years (this is a right to reside) and may then apply for indefinite leave to remain in the UK. People who are awaiting a decision on their application for asylum are not refugees they are asylum seekers. They only become refugees when the Home Office recognises their status. Qualified person 7053 A person exercising a Treaty right is described in domestic law as a “qualified person”. A qualified person is defined as a European Economic Area national who is in the UK and is1 1. a worker 2. a self-employed person 3. a jobseeker 4. a self-sufficient person 5. a student. 1 Immigration (European Economic Area) Regulations 2006, reg 6 7054 A European Economic Area national for the purposes of the definition of qualified person is a national of a European Economic Area State other than the UK1. Therefore, a UK national cannot be a qualified person. 1 Immigration (European Economic Area) Regulations 2006, reg 2 7055 A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person1. 1 Immigration (European Economic Area) Regulations 2006, reg 14(1) Worker 7056 The 2006 Regulations define a worker as “a worker within the meaning of Article 39 of the Treaty establishing the European Community”. This is synonymous with “a worker for the purposes of Council Directive (EC) 2004/38”. 7057 Fortunately, the European Court of Justice has attempted to clarify exactly what this means. It has given many judgments on the meaning of worker. It stated that the concept of worker has a specific Community meaning and must not be interpreted narrowly. A worker is someone who is in an employment relationship1.
7058 An employment relationship is one where a worker is under the direction of another person and provides services in return for remuneration1. 1 Case 66/85 Lawrie-Blum v Land Baden-Württemberg 7059 Any person who pursues activities which are genuine and effective, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a worker1. 1 Case 53/81 Levin v Staatssecretaris van Justitie 7060 If the work is genuine and effective Member States cannot apply additional conditions for a person to be classified as a worker1 such as a “minimum period of prior occupational activity”, and it is irrelevant that a person may choose to work for a short period of time in order to enjoy better social advantages than in the State that they came from2. 1 Case 197/86 Brown v Secretary of State for Scotland; 2 Case 39/86 Lair v Universität Hannover 7061 The European Court of Justice ruled that the nature of the activities is irrelevant and the fact that a person was working as a prostitute (only where it is legal) could not affect the conclusion that they were carrying out economic activities1. 1 Case C-268/99 Jany v Staatssecretaris van Justitie 7062 Part-time Work A person who works part-time can still be considered a worker. The European Court of Justice ruled that a person working 10 hours was a worker1. A part-time music teacher who worked 12 hours a week was a worker and would be even if this work were not his principal activity2.
7063 Fixed Term Contracts The European Court of Justice has made clear that “the fact that employment is of short duration cannot, in itself, exclude that employment from the scope of … the Treaty”1.
7064 Contracts with Variable Conditions A person providing services as an “on-call worker” was not precluded from being a worker because of the conditions of employment. However, when working as a waitress for 60 hours over a 16-day period the activities exercised were purely marginal and ancillary1.
7065 The terms “genuine and effective” and “marginal and ancillary” are not defined in European Community law. Each case should be decided on its own merits. The decision maker should take account of all work done in the UK and consider amongst other things 1. is the person working for someone? 2. is the work of economic value to the employer? 3. is the person working in return for remuneration? 4. how many hours does the person work? 5. how often does the person work those hours? 6. for how long has the person worked? 7. is the work regular or erratic? Retaining worker status 7066 Worker status is retained after employment ends if the person 1. is temporarily unable to work as the result of an illness or accident1 or 2. 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 can provide evidence that he is seeking employment in the UK and has a genuine chance of being engaged2 or 3. is involuntarily unemployed and has embarked on vocational training3 or 4. has voluntarily ceased working and embarked on vocational training that is related to the previous employment4. 1 Immigration (European Economic Area) Regulations 2006, reg 6(2)(a); 2 Regulation 6(2)(b); 3 Regulation 6(2)(c); 4 Regulation 6(2)(d) 7067 * Meaning of “involuntarily unemployed” Commissioner Mesher in GB said “…a person who has left employment but remains in the labour market must retain the status of worker …. In that context, it does not matter in itself whether the previous employment was left voluntarily or involuntarily. The question is whether the circumstances of leaving, and in particular the person’s intentions and actions at the time, indicate that the person was still in the labour market or not1.” Commissioner Rowland in GB interpreted this to mean “Thus, it seems to me, the term ‘voluntarily unemployed’ must be regarded as focussing on the question whether the claimant is still in the labour market rather than on the circumstances in which he or she ceased to be employed, although the latter may be material as evidence as to whether or not the claimant is genuinely still in the labour market2”. 1 R(IS) 12/98, paragraph 21; 21 CH/3314/2005, paragraph 11 7068 ** Meaning of “relevant employment office” In a GB Commissioner's decision the Secretary of State for Work and Pensions conceded “that a person could be a work-seeker notwithstanding that he or she was claiming income support rather than jobseeker's allowance. … also conceded that the Secretary of State had had no system enabling claimants of income support to register the fact that they are work-seekers and so he submitted that the requirement for the claimant’s involuntary unemployment to be ‘duly recorded by the relevant employment office’ was met if the claimant claimed income support and declared that he or she was a work-seeker”1.
7069 The 2006 Regulations define a self-employed person as “a person who establishes himself in order to pursue activity as a self-employed person in accordance with Article 43 of the Treaty establishing the European Community”. 7070 A self-employed person earns his own livelihood directly from his own trade or business rather than as an employee of another. The ECJ defined the concept as “…economic activities carried on by a person outside any relationship of subordination with regard to the conditions of work or remuneration and under his own personal responsibility”1.
7071 Factors to be considered include 1. the sharing of the commercial risks of the business 2. the freedom to choose their own working hours 3. the freedom to engage their own assistants. 7072 Any person who pursues genuine and effective activities as a self-employed person must be regarded as self-employed. A self-employed person retains that status if they are temporarily unable to pursue their activity as the result of an illness or accident. Jobseeker 7073 A jobseeker is a European Economic Area national who enters the UK in order to seek employment and can provide evidence that they are seeking employment and have a genuine chance of being engaged1. 1 Immigration (European Economic Area) Regulations 2006, reg 6(4) Self-sufficient person 7074 A person is self-sufficient if they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover* in the host Member State. Sufficient resources are “higher than the level of resources below which the host Member State may grant social assistance to its nationals1. In other words, more than the level at which income support and/or housing benefit would be awarded. 1 Article 8(4) of Council Directive (EC) 2004/38 7075 A person who has acquired the right to reside should not later become an unreasonable burden on public funds. If a person, who is required to be self-sufficient, claims housing benefit, decision makers should consider the question of fact, whether they have already acquired the right to reside by being self-sufficient whilst in the UK. If not, then they do not have the right to reside for housing benefit purposes and cannot satisfy the test. Where a person has already acquired the right to reside the question is whether the award of housing benefit would constitute an unreasonable burden on public funds and whether the right to reside should be ended. 7076 The term unreasonable burden is not defined in legislation. However, the European Court of Justice ruled that while a Member State could decide that a person, having recourse to social assistance no longer fulfilled the conditions of his right of residence, and so could withdraw his residence permit or decide not to renew it, such actions could not be the automatic consequence of a person having recourse to the host State’s social assistance system1. In other words, a person having established a right to reside, and as long as his claim to benefit was temporary, would not necessarily become an “unreasonable burden”.
7077 A student is a person who is enrolled at a private or public establishment included on the Department for Education and Skills’ Register of Education and Training Providers1 or financed by public funds for the principle purpose of following a course of study, including vocational training and 1. have comprehensive sickness insurance cover* in the UK and 2. makes a declaration to Home Office that they have sufficient resources not to become a burden on the social assistance system in the UK during his period of residence. 1 The register includes Northern Ireland and can be found at http://www.dfes.gov.uk/providersregister/ 7078 * Comprehensive sickness insurance is cover that provides for general health risks. The E111 or its successor the European Union Health Insurance Card does not suffice. Family member of a qualified person 7079 In addition to European Economic Area nationals, non-European Economic Area national family members derive a right of residence in the UK through the European Economic Area national provided that the European Economic Area national has a right to reside under the 2006 Regulations1. 1 Immigration (European Economic Area) Regulations 2006, reg 14(2) 7080 As confirmation of this right of residence, family members may apply for certain residence documents 1. European Economic Area national – registration certificate 2. Non-European Economic Area national – registration card 3. European Economic Area and Non-European Economic Area nationals – family permit. 7081 A registration card normally takes the form of a stamp on the applicant’s passport. 7082 A European Economic Area family permit is a form of entry clearance issued to the European Economic Area family members of a European Economic Area national who is in or intends to come to the UK in order to exercise a Treaty right. As with other aspects of the entry clearance system, the administration of the European Economic Area family permit system rests with the Foreign and Commonwealth Office. Therefore, European Economic Area family permits are normally issued by the British Embassy in the country of origin before the family member enters the UK. 7083 In order to obtain a residence document the applicant should provide 1. their passport or national ID card and 2. the passport or national ID card of the European Economic Area national and 3. evidence of the relationship e.g. marriage/birth certificate and 4. evidence that the European Economic Area national is exercising a Treaty or has a permanent right of residence under the 2006 Regulations. 7084 Family members of a qualified person are defined as1 1. a spouse or civil partner* and 2. direct descendants under the age of 21 and dependant** descendants over 21, belonging to the European Economic Area national, his spouse or his civil partner and 3. dependant** direct relatives in his ascending line or that of his spouse or civil partner 4. in the case of students, where the family members fall under sub-paragraphs 2. or 3. above, they are treated as family members for 3 months only, from the date the student is admitted to the UK, unless, in the case of sub-paragraph 2. the dependent is the child of the student, his spouse or his civil partner. 1 Immigration (European Economic Area) Regulations 2006, reg 7 7085 * Meaning of “spouse or civil partner” This includes the spouse or civil partner when separated. Where the spouse or civil partner is a European Economic Area national, divorce, annulment of the marriage or termination of a civil partnership does not affect the right of residence of their family members. Where the spouse or civil partner is a non-European Economic Area national see paragraph 2 under the heading “Family member who has retained the right of residence” (see DMG 489). 7086 ** Meaning of “dependant” The European Court of Justice has ruled on the meaning of “dependant”. A family member is dependent on the qualified person if the qualified person was providing the family member with the “material support … in order to meet their essential needs in the State of origin”1. Generally, this means that financial support must have been provided by the qualified person or their spouse or civil partner to the family member before the family member joined them in the UK. If the family member becomes dependent after arriving in the UK they are not a family member of a qualified person.
“Extended family member” 7087 The Home Office decides who is an “extended family member”1. An extended family member must hold a valid
“Family member who has retained the right of residence” 7088 The expression “a family member who has retained the right of residence” has a specific meaning. It means non-European Economic Area family members continue to have the right of residence in the four following sets of circumstances1
3.4 they were attending an educational course in the UK immediately before the qualified person died or ceased to be a qualified person and continues to attend such a course 4. they are a parent with actual custody of a child who satisfies the condition in paragraph 3. above. 1 Immigration (European Economic Area) Regulations 2006, reg 10 7089 European Economic Area family members and non-European Economic Area family members are treated differently with regard to family members retaining the right of residence. A European Economic Area national is a “family member who retained the right of residence” under paragraphs 3. and 4. only. “Worker or self-employed person who has ceased activity” 7090 A worker or self-employed person who has ceased activity has a permanent right of residence. 7091 The concept of a “worker or self-employed person who has ceased activity” has a specific meaning and does not mean someone who has merely stopped work. 7092 It means a European Economic Area national who ceases to work as a worker or self-employed person in the five following sets of circumstances1 1. they reach the age at which they are entitled to a state pension on the date on which they terminate their activity or in the case of a worker, ceases working to take early retirement and 1.1 have pursued their activity as a worker or self-employed person in the UK for at least 1 year prior to the termination and 1.2 have resided in the UK continuously for more than 3 years prior to the termination 2. they terminate their activity in the UK as a worker or self-employed person as a result of a permanent incapacity to work and either 2.1 they have resided in the UK continuously for more than 2 years prior to the termination or 2.2 the incapacity is the result of an accident at work or an occupational disease that entitles them to a pension payable in full or in part by an institution in the UK 3. they are active as a worker or self-employed person in a European Economic Area State but retain their place of residence in the UK to which they return as a rule at least once a week and 3.1 prior to becoming so active in that European Economic Area State, they had been continuously resident and continuously active as a worker or self-employed person in the UK for at least 3 years Yüklə 158 Kb. Dostları ilə paylaş:
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