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Comprehensive info on migrants’ rights to benefits?
Does anyone know a good website with up-to-date and reliable info about all the new rules for migrants, especially EU migrants, and the conditions for them to claim benefits in the UK?
We are seeing more and more problems with migrants being refused benefits so I need to put something together as a quick reference guide for me and my colleagues.
I guess that migrants who arrived in the UK before the new rules came in continue to be assessed under the old rules?
Here’s an October 2014 article from CPAG’s Welfare Rights Bulletin on recent changes -
http://www.cpag.org.uk/content/residence-rights-and-wrongs
and one from February 2014 describing changes from January 2014 -
Note that since writing the latest WRB article, SI 2004/2761 has been laid which restricts EEA jobseekers right to reside to 91 days. It comes into force 10 November but takes into account periods as a jobseeker after 31 December 2013. Check next WRB for more on that change and our new Benefits for Migrants handbook covers all the changes up to 1 June this year.
Aaaarrrrrgh! This topic is making my brain ache; there are far too many ‘ifs’ and ‘buts’ for my liking :)
I’ve read both of the WRB’s about this but I’d be grateful for any advice on the following things that I’m still confused about:
- In terms of EEA nationals who were in the UK before 1 January 2014, what would their circumstances need to include to exclude them from all the changes brought in since 1 January 2014? Is their access to HB and ESA more certain than those who arrive in the UK after 01/01/14? If so, is this still the case if they don’t try to claim HB and ESA until after 01/01/14?
- I’m still not sure how those who work for more than 12 months before becoming jobseekers are in a better position than those who had worked for less than 12 months?
- If an EEA national has never worked in the UK and has only claimed JSA, could they claim ESA if they hadn’t been in the UK long enough to gain a permanent right to reside?
- If an EEA national has been working in the UK and then has to stop because of ill health, can they get ESA? What difference does it make if they’ve been working more than one year before becoming ill?
- If they are able to get ESA, are there any restictions on how long they can get it - restrictions specific to EEA nationals?
- Does the restriction on HB only apply to EEA nationals who have come to UK and have never worked or have lost their retained worker status? If they claim HB while they still have retained workers status, is there a limit on how long they can get HB after that?
- The passporting to HB via IR-ESA hasn’t changed for EEA nationals, right?
I was hoping to identify some ‘quick questions’ that we could ask to establish whether a person could get income-replacement benefits and HB if they are currently unemployed or if they become unemployed in the future (either due to ill-health or non-health-realted reasons), but I don’t think I’ve found many yet.
If they can produce 5 P60s for five continuous years, does it guarantee that they have a permanent right to reside? If so, is it possible for someone to get a P60 despite doing very little work during one tax year? I was thinking of cases where someone earned enough money to pay NI for two weeks, but didn’t pay any more NI than that. Would they still get a P60 and be able to use that to prove a qualifying year towards the 5 qualifiying years that they need to gain a permanent right to reside? Or is the minimum NI threshold calculated over a year rather than on a week-by-week basis?
(Gulp) Please help!
Very simplified answers below. It’s impssible to do justice to the full complexity of it here but I hope this helps.
- In terms of EEA nationals who were in the UK before 1 January 2014, what would their circumstances need to include to exclude them from all the changes brought in since 1 January 2014? Is their access to HB and ESA more certain than those who arrive in the UK after 01/01/14? If so, is this still the case if they don’t try to claim HB and ESA until after 01/01/14?
The only transitional protection is that periods of unemployment before 1/1/14 don’t count towards the various six month/182 day/91 day limits. Otherwise the same rules apply to everyone.
- I’m still not sure how those who work for more than 12 months before becoming jobseekers are in a better position than those who had worked for less than 12 months?
If you worked for less than 12 months, after six months of unemployment that’s it, curtains - finshed. Whereas if you worked for at least 12 months you can retain worker status beyond six months by providing compelling evidence of GPOW
- If an EEA national has never worked in the UK and has only claimed JSA, could they claim ESA if they hadn’t been in the UK long enough to gain a permanent right to reside?
No
- If an EEA national has been working in the UK and then has to stop because of ill health, can they get ESA? What difference does it make if they’ve been working more than one year before becoming ill?
If the incapacity is temporary, yes and it doesn’t matter whether you worked a full year or not as long as the work was effective and genuine. If the incapacity is permanent there are other requirements (two years’ legal residence or a British spouse/CP or an industrial accident/illness)
- If they are able to get ESA, are there any restictions on how long they can get it - restrictions specific to EEA nationals?
No
- Does the restriction on HB only apply to EEA nationals who have come to UK and have never worked or have lost their retained worker status? If they claim HB while they still have retained workers status, is there a limit on how long they can get HB after that?
The main change affecting HB this year is that a back-door route for work seekers has been closed: they used to be able to get HB as a spin-off passported effect of being on JSA(ib), but now they cannot any more. Otherwise EEa nationals can get HB as l;ong as they have a right to reside. If they lose their right to reside as a worker after six months’ unemployment, that will simultneously put the kibosh on any benefits that require you to have a right of residence including HB, JSA(ib) and tax credits
- The passporting to HB via IR-ESA hasn’t changed for EEA nationals, right?
No it hasn’t - same goes for IS and SPC as well. The only change affects HB claimants on JSA(ib): if your only right to reside is as a work seeker, you can no longer get HB through being on JSA(ib).
Thanks so much, HB Anorak, that really does help. I’m still not sure how to translate it all into ‘quick questions’ but I suspect it’s because the quick question approach to these issues is best avoided!
FAO HB Anorak - for the purpose of clarity can I confirm with you (or anyone else) that a European who has been in receipt of income based JSA prior to January 2014 cannot claim ESA if he/she falls ill even if the illness is temporary.
JM
I think (hope) that this is right…
Income Related ESA requires you to pass the HRT and have a R2R. If your only R2R is as a Jobseeker, then you can only claim IB JSA (which is subject to waiting times, time limiting and GPOW Test) and not any other means tested benefits. So you cannot get IR ESA.
(They would be able to get HB if they have been entitled to JSA/HB prior to 1st April and are still entitled to JSA and have not made a new claim for HB. There is also an exemption for people who have been on transitionally protected IS since 30.04.04 without a R2R who migrate to ESA and you can also get ESA without the R2R if it is via the 12 weeks linking rules).
EU Directive 2004/38 and EEA Regs allow you to retain worker/self-employed status if you are present in a member state doing genuine and effective work and then become temporarily unable to work due to accident or illness (a temporary period of incapacity). If this temporary incapacity becomes permanent then entitlement to ESA ends unless you meet certain conditions – explained by HB Anorak above. It is the inability to work that must be temporary, not the illness itself.
You cannot be eligible for IR ESA if your only R2R is that of a jobseeker.
Many thanks - all very complicated.
Thanks so much, HB Anorak, that really does help. I’m still not sure how to translate it all into ‘quick questions’ but I suspect it’s because the quick question approach to these issues is best avoided!
I get questions on this so rarely that i hate it as a topic as i always need to go back to page one so your not alone.