special non-contributory benefits for eu migrants: a tri-city project european commission...
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SPECIAL NON-CONTRIBUTORY BENEFITS FOR EU MIGRANTS:
A TRI-CITY PROJECT
EUROPEAN COMMISSIONVP/2011/004/0120
Esther Lieu, Project Manager
14 May 2012
PARTNER 2: LIZE GLAS, RADBOUD UNIVERSITY, NIJMEGEN, THE NETHERLANDSPhD Student (thesis on the relationship between European Court of Human Rights, the Court of Justice of the EU, the member states, the Parliamentary Assembly and the Committee of Ministers). Previous
internships at The AIRE Centre, UNHCR Cyprus, Netherlands Helsinki Committee.
PROJECT PARTNERS
1
LEAD PARTNER: ADVICE ON INDIVIDUAL RIGHTS IN EUROPE (The AIRE Centre), LONDON, UK
Mission: To promote awareness of European law rights and assist marginalised individuals and those in vulnerable circumstances to assert those rights. We:
•Take cases to the European Court of Human Rights (including cases on behalf of non-EU trafficking victims facing expulsion);
•Provide free legal advice to individuals and their advisers on their rights under EU law (mostly EU law on the free movement of persons)
PARTNER 1: FREE LEGAL ADVICE CENTRES (FLAC), DUBLIN, IRELANDIndependent Human Rights organisation dedicated to the realisation of equal access to justice for all.
Activities:•Provide free legal information, advice and representation;
•Campaign for a state civil legal aid system
OBJECTIVE: To improve the information that EU migrants in Amsterdam, Dublin and London have about their right to access special non-contributory benefits (Art. 70, Regulation 883/04/EC).
ACTIVITIES: 1. Monitoring EU migrants’ access to special non-contributory benefits in the three Member States concerned; 2. Giving advice to EU migrants applying for special non-contributory benefits;3. Roundtables in Dublin, London and Amsterdam to discuss the problems EU migrants applying for benefits face in those cities;4. Preparation of Information Notes in multiple languages; 5. Final Report
PROJECT OBJECTIVES & ACTIVITIES
EXPECTED OUTCOMESEXPECTED OUTCOMES •Low-income EU migrants in Amsterdam, Dublin and London will have more information about how and in what circumstances they can access special non-contributory benefits;•Law and policy makers at local, national and European levels (including within the EC) will have more specific information about the experience and challenges faced by EU migrants accessing special non-contributory benefits;•Advisers working in these three cities will create stronger networks to support EU migrants there, share best practice and develop monitoring and advocacy tools;
USE OF RESULTS •A purposely-designed webpage will allow advisers and representatives to access the multi-lingual information notes, materials from the round-tables and conference, and other related resources for free; •Advisers and representatives working with EU migrants from other Member States or other areas of these three Member States will be invited to the roundtables; •The report will be sent to relevant law and policy makers at local, national and EU levels, and towards the end of the project the project staff will arrange meetings with those law and policy makers to discuss the results of the project.
ACTIVITY 1ACTIVITY DETAIL ACTIVITIES UPDATE
1: Monitoring EU migrants’ access to special non-contributory access in the
three Member States
concerned.
1.1 Collection of information (through statistics already available and freedom-of-information-type requests) about the number of EU migrants in these Member States who apply for special non-contributory benefits.
• Explore what information is already available (especially in NL – Lize)
• Draft standard FOI request regarding the nationality and
gender of people making claims for SNCB.
• Submit FOI in all three cities• Pursue the FOI as far as possible
1.2 Reporting, in relation to these claims by EU migrants, of -whether their claims are successful;-how long it takes for their claims to be processed (particularly as compared with host Member State nationals); and-reasons why applications are refused.
Create a spread-sheet to consolidate the information retrieved across the
three cities (either from the FOI Request or other sources)
1.3 Monitoring of case law in the courts of these Member States to identify the major legal issues that arise and how the national authorities have resolved them.
• Establish monthly reporting template for each city
• Create a spread-sheet to consolidate the reported
information and areas for follow-up
ACTIVITY 2 & 3ACTIVITY DETAIL ACTIVITIES UPDATE
2. Giving advice to
EU migrants applying for special non-contributory
benefits.
2.1 Running a year-long specialist legal advice service, providing advice – usually to other advisers in the NGO sector working with EU migrants – on their right to access special non-contributory benefits.
• Lawyers and legal advisors working in the sector to be directed to the AIRE Centre
where relevant• AIRE to encourage other
advisors (e.g. CPAG) to refer requests for advice where
relevant • Monitoring of the number of
requests for advice concerning SNCB received
across all three cities
3.Roundtables to
discuss the problems EU
migrants applying for
benefits face in those cties.
3.1 Establish a network of the major NGO actors providing advice on EU migrants who may be eligible for special non-contributory benefits. 3.2 Strengthen such networks through the round-tables give the project staff an opportunity to understand in detail the problems with access to special non-contributory benefits in each city.
• NGOs to be identified in each of the three cities
• Separate database of contacts compiled for each city
• Master database of key contacts compiled for overall
purpose of project • Round-tables to be held in
London, Dublin, Amsterdam
ACTIVITY 4 & 5ACTIVITY DETAIL ACTIVITIES UPDATE
4. Preparation of
Information Notes in multiple
languages
4.1Preparing information notes for EU migrants and their representatives and advisers on accessing special non-contributory benefits.4.2Translation of the information notes into multiple languages4.3Launch of information notes at event in London and through appropriate channels in Amsterdam and Dublin, as well as through the website.
Assess what similar types of
information notes are currently available across the three cities
Obtain feedback from network of
NGOs as to what would be the most useful form and content of
the information note
Note for UK to be drafted; format to be copied by FLAC and Lize in
accordance with outcomes of their research
5.
Final Report
5. Preparation and publication of a report about the results of the Project
To be compiled in draft form
throughout the project
LONDON – 19 JAN 2012AGENDA
9:45 - 10:00 Introduction to the Project and the Roundtable (Esther)
10:00 - 10:50 Introductions by the Project Coordinators (Saoirse, Lize, Sarah)
10:50 - 11:00 Break
11:00 - 12:00 EC Regulation 883/04 and Article 10(a): General Provisions and Background (Adrian Berry)
12:00 - 12:10 Break
12:10 - 12:40 Patmalniece, the Right-to-Reside Test and the EC’s infringement proceedings (Adam Weiss)
12:40 - 13:00 Access to Benefits: Victims of Domestic Violence (Sarah St. Vincent)
13:00 - 13:45 Lunch
13:45 - 14:00 Access to Benefits: Victims of Human Trafficking and Pregnant women (Esther Lieu)
14:00 - 15:00 Access to Benefits: Administration, Delays and Remedies (Martin Williams)
15:00 - 15:10 Break
15:10 - 16:00 What has happened, what is happening, what will happen (All)
16:00 - 16:30 Logistics (Project Staff)
ATTENDEES
Project Staff
Saoirse Brady FLAC
Karen McLaughlin FLAC
Lize Glas Radboud University
Adam Weiss AIRE
Sarah St Vincent AIRE
Esther Lieu AIRE
Participants & Speakers
Adrian Berry Garden Court Chambers
Saadiya Chaudary The AIRE Centre
Elena Consiglio The AIRE Centre
Emma Fenelon The AIRE Centre
Edward Graham Child Poverty Action Group
Joe Kitchen The AIRE Centre
Jonathan Worboys The AIRE Centre
Martin Williams Child Poverty Action Group
Omkar Sidhu The AIRE Centre
DUBLIN (1st March 2012) ATTENDEES (In addition to Project Staff)
Economic and Social Research Institute
Immigrant Council of Ireland
Crosscare Migrant Project
Independent Consultant
Vincentian Refugee Centre
T. Lyons & Co. LLP
NASC
Threshold
trESS
Trinity College Dublin
Caire
Citi Info
Ballymun Community Law Centre
Northside Community Law Centre
Dublin 8 & Bluebell CIS
Irish Traveller Movement Law Centre
Pavee Point Travellers’ Centre
Focus Ireland
Law Centre NI
AGENDA09:40 – 09:55 Introduction to the Roundtable (Saoirse
Brady, FLAC)
09:55 - 10:00 Introduction from AIRE (Esther Lieu, AIRE)
10:00 – 10:30 Benefits, Payments & Challenges (Saoirse Brady)
10:30 - 10:45 Migrants’ barriers to Social Welfare (Fiona Hurley, NASC)
10:45 - 11:20 The Right to Reside Test & AIRE’s Experiences (Adam Weiss, AIRE)
11:20 – 11:30 Break
11:30 - 12:10 Social Welfare Law (Derek Shortall, Barrister)
12:10 – 12:20 Break
12:20 – 13:10 Immigrants’ welfare receipt across the EU (Corona Joyce & Bertrand Maitre, ESRI)
13:10 - 13:50 Lunch
13:50 – 14:05 Presentation (Lize Glas)
14:05 – 14:40 Pregnant Women & Victims of Domestic Violence (Elena Consiglio & Sarah St Vincent)
14:40 - 14:50 Break
14:50 - 15:50 Round-table Discussion
15:50 - 16:00 Conclusion
ACTIVITIES - AIRE• ROUNDTABLES: London & Dublin
• TRAININGS: Ghent (Esther) & NAWRA (Adam & Saadiya)
• ADVICE REQUESTS & SURGERIES: Norfolk (and subsequent case management)• LITIGATION / REPRESENTATION: Appeals to UTT (AAC) and TPI in Court of
Appeal / Reference request to CJEU
• FREEDOM OF INFORMATION REQUEST: 2 (Feb 2012 & April 2012)• RESEARCH & MONITORING:
o Dissemination of legislative developments including EC(COM)794, JSA Regulations (re. DV), Welfare Reform Bill, Infringement Proceedings, ‘common period’
o Dissemination of summaries of trESS Reports, ESRI Reports and other publications
• CASE LAW MONITORING: Spread sheet developed & populated• INFORMATION NOTES: First draft version distributed for feedback• NETWORKING: Regular correspondence with CPAG, RightsNet and other UK-
based NGOs working on this area.
SPECIAL NON-CONTRIBUTORY BENEFITS IN THE UKEC Regulation 883/04, Article 70:“Characteristics of social security and social assistance”: they look like welfare benefits but also look like one or more of the following: sickness benefits; maternity and equivalent paternity benefits; invalidity benefits; old-age benefits; survivors’ benefits; benefits in respect of accidents at work and occupational diseases; death grants; unemployment benefits; pre-retirement benefits; family benefits.
Annex X, UK Special Non-Contributory Benefits:•State Pension Credit (subsistence benefit for those of pension age).•Income Support (subsistence benefit for lone parents and certain others).•Income-based Jobseeker’s Allowance (subsistence benefit for those seeking work).•Disability Living Allowance (mobility component).•Income-related Employment and Support Allowance (subsistence benefit for those unable to work). (Later added to Annex X.)
Social Security (Persons from Abroad) Amendment Regulations 2006European Economic Area (‘EEA’) nationals may claim social assistance benefits if they are able to pass a two-part test known as the habitual residence test:
1. Demonstrate that they are actually habitually resident in the United Kingdom (‘where the habitual centre of their interests is to be found’)
2. Demonstrate that they have a right to reside’ in the UK (and meet the other eligibility criteria that are imposed on British citizens).
DIRECTIVE 2004/38/EC (transposed into UK legislation by theImmigration (European Economic Area) Regulations 2006)
Article 6: Right of residence for up to three months
1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.
Article 7: Right of residence for more than three months
1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
a) are workers or self-employed persons (can include part-time work, and job-seekers)
b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State and have comprehensive sickness insurance cover
c) are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and have comprehensive sickness insurance cover in the host Member State
d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).
Article 16: Permanent Residence after five years continuous and legal residence
Article 17: Permanent Residence and permanent incapacity / pension age
Regulation 1612/68, Article 12: Primary carer of child in education
BUT: Accession (Immigration and Worker Authorisation) Regulations 2006: certain ‘A2’ nationals (from Romania and Bulgaria) aresubject to work authorisation requirements in order to exercise a right to reside as a worker; and they are NOT able to exercise a right to reside as a jobseeker until the end of 2013.
CHALLENGES AND SUCCESSESPATMALNIECE
It was argued that the right-to-reside test (which British and Irish citizens, but not other EU citizens, always pass) violates Article 3(1) of Regulation 1408/71 (now Article 4 of Regulation 883/04). Their Lordships found that there was indirect discrimination (unanimous) but (4-1) that the Secretary of State’s purpose “to protect the resources of the United Kingdom against resort to benefit or social tourism by persons who are not economically or socially integrated with this country” was justified, and that the justification itself was blind to a person’s nationality.
INFRINGEMENT PROCEEDINGS
In response to letters from the AIRE Centre and ILPA the European Commission stated that in their view the Right to Reside test is “contrary to equal treatment guaranteed by Article 3 of Regulation 1408/71 when it is the reason that a person which is covered by this Regulation is ineligible for benefit”. In July 2010 the Commission sent a ‘letter of formal notice’ to the UK, and in September 2011, a ‘reasoned opinion’, giving a deadline of November 2011.
Bristol City Council v FV [2011] UKUT 494 AAC
Claimant (Romanian national) refused housing benefit on grounds that she did not have a right to reside. She successfully argued that as she sold the Big Issue at her own profit or loss, she was self-employed. She was then able to claim Housing Benefit from the council to supplement her income and support her 4 children.
