Five of the eight EU Accession states whose nationals have had benefit restrictions applied from 1st May, were parties to the European Convention on Social and Medical Assistance(ECSMA). Specifically, Latvia, Hungary, Poland, Slovakia & Czech Republic. There are of course other countries which are ECSMA signatories, I've just listed the five which now have benefit restrictions.

Now that they have joined the EU does the ECSMA still apply to nationals of these states? Presumably if the ECSMA still covers people from these states it enables people who are lawfully present to access various means tested benefits which are otherwise restricted? Could it also be used to access benefits for former asylum seekers from these states?

I would be grateful for any suggestions.

Neil

Assume that the idea is to try and use ECSMA as a way of providing a right to reside. While i don't think it ceases to apply because of EEC membership (the Court of Justice used ECSMA as one of the reasons for holding in the Maria Sala case that she was lawfully resident), the problem is of course that it does not have direct effect.

While it is given effect in paragraph 4 of the schedule to the Immigration and Asylum Regulations (SI 2000 No 636) i don't think that they will help circumvent the new right to reside test.

SI 2000 No 636 is a way of exempting people who would otherwise be caught by the definition of a 'person subject to immigration control' in section 115 of the Immigration and Asylum Act 1999. The new accession countries don't need to be exempted as they already are by virtue of being nationals of EEA states. SI 2000 No 636 doesn't therefore exempt from the right to reside test but rather the immigration condition.

I do not know of another instrument that gives effect to ECSMA that will assist in circumventing the new regulations (which has now been extended to include CB and CTC, thus closing off one potential form of support to lone parents caught by the new habitual residence regulations). For example the Immigration (European Economic Area) Regulations 2000 (S.I. 2000 No 2326)are silent on ECSMA.

The immigration rules seem to have incorporated some of ECSMA in terms of rights to reside for long term residents but this would not seem to help with the people you are probably trying to assist.

I also wonder whether ECSMA would assist if it were of direct effect. Article 1 of ECSMA provides for equal access to social and medical assistance and Article 6 provides that accessing such assistance should not automatically lead to repatriation. However, Article 7 allows states to repatriate those who claim social and medical assistance, if they have not resided for the relevant period, are healthy enough to travel and have no close ties with the host Member State.

Furthermore the UK has derogated from Article 1 in those cases where travel assistance to a home countries frontier has been offered. The travel assistance and temporary accommodation Regulations 2002 (SI 2002 No 3078)would therefore close off any right to equal treatement to those presenting to social services departments

Therefore, even if ECSMA has been given direct effect in a way that would assist those affected by the new regulations, it may not be of much use.

I hope someone will prove me wrong