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Immigration Law

Nationals of Accession States

On May 2004, the European Union expanded from fifteen to 25 member states when the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia, Cyprus and Malta joined the European Union. The Accession Treaty allows member states to restrict the right of accession country nationals (except those from Cyprus or Malta) to freedom of movement as workers for a transitional period of up to seven years.

The UK government has modified arrangements for eight of the ten accession states (the A8) by setting up a registration scheme requiring accession state nationals to register for employ-ment within a month of starting work.
The government has also amended the habitual residence test for certain social security benefits. In effect, a claimant must now be both habitually resident in Northern Ireland and also have a right to reside in the common travel area (ie the United Kingdom, Republic of Ireland, Isle of Man and the Channel Islands). In addition, the right to reside test has been introduced for Child Tax Credit and Child Benefit. The new rules are primarily aimed at nationals from the accession states although they affect all social security claimants.

The habitual residence test

A claimant is not entitled to Income Support, Income-based Jobseeker’s Allowance, Pension Credit or Housing Benefit unless s/he is habitually resident (or treated as such) in the common travel area. A claimant who does not satisfy the habitually resident test is classed as a ‘person from abroad’ and, alongside those defined as ‘subject to immigration control’, is excluded from entitlement. The habitual residence test is applied to all claimants of the benefits outlined above (but not partners or dependants) including UK citizens.
From 1 May 2004, the test has been amended so that, in order to satisfy the habitually resident test, a person must also have a ‘right to reside’ in the common travel area. Certain groups are automatically treated as being exempt from the test. They include:

European Economic Area (EEA) nationals and their dependants who are workers under EC Regulations 1612/68 or EC 1251/70;

EEA nationals who have a right to reside in the UK under EC Directives 68/360 or 73/148. This right depends on the person being a worker;

people who have been granted refugee status or exceptional leave to remain in the UK;

people who have been deported, expelled or compulsorily removed from another country to the UK;

accession nationals registered under the Home Office Scheme who are working in the UK for an authorised employer.
EEA nationals are people from the 25 European Union member states plus Iceland, Lichtenstein and Norway. Switzerland is also covered even though it has not joined the EEA.

The term habitually resident has not been defined and the words must be given their ordinary and natural meaning. What has emerged from case law is that there is no definitive list of factors or time limit that determines whether or not a person is habitually resident in the UK. It is a question of fact to be decided by a social security decision maker or on appeal by a tribunal.

From case law it is possible to divine a number of pointers. To be habitually resident, a person must have a settled intention to reside. This does not necessarily have to be for a permanent period. For a claimant who has never been in the UK, this means actual residence for an appreciable period of time (see Nessa v CAO 1999) (HL). More recently, a Social Security Com-missioner’s decision in Britain, CIS 4474/2003, suggested that an app-reciable period will normally mean between one to three months and should not normally exceed this length of time. In effect, the longer a claimant has been in the UK, the stronger the claim will be to establish habitual residence. Other factors that will strengthen a claim include any durable ties with the UK (for example, family or friends), bringing over possessions, doing everything nec-essary to establish ties in advance. All relevant factors need to be taken into account when deciding whether habitual residence has been established.

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The right to reside

To satisfy the habitual residence test for Income Support, Income-based Job-seeker’s Allowance, Pension Credit, Housing Benefit, Child Tax Credit or Child Benefit after 1 May 2004, a claimant must have a right to reside in the UK.The regulations provide no statutory definition of the right to reside. Nonetheless, domestic legislation and European Community directives set out that the following groups are covered:

UK nationals and others who have a right of abode in the UK under Section 1 of the Immigration Act 1971;

citizens of the Republic of Ireland, Channel Islands and Isle of Man who have a right to reside under their own legislation;

third country nationals who have a right to stay in the UK under leave to enter or remain in the UK under certain provisions of the Immigration Act 1971.

This will generally cover people whose immigration status is not subject to ‘no recourse to public funds’. For example, people granted indefinite leave to remain, exceptional leave to enter or remain, humanitarian protection or discretion-ary leave should all be covered.
The rights of nationals from the other EEA member states and Switzerland will depend on the economic category into which a person falls. The following have a right to reside:

a worker for the purposes of Regulation 1612/68 or Directive 68/360;

the self-employed who are providing a service on a commercial basis and covered by Directive 73/148;

work seekers have the right to move freely within the EU to search for work for at least six months and longer providing they continue to genuinely seek work.

In addition, retired or incapacitated workers who have worked in the UK are entitled to remain if they satisfy certain conditions contained in Regulation 1251/70.

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Nationals of Accession States

The Accession Treaty allows member states to derogate from Articles 1 to 6 of Regulation 1612/68 covering freedom of movement of workers. In February 2004, the government announced its intention to introduce specific arrangements to cover all the accession state countries (A8 nationals) except Malta and Cyprus.

The government has introduced a new workers registration scheme for A8 nationals for the next five years. As a result, A8 nationals must register their employment within one month of taking up a job (see Peter Fitzmaurice’s article, Writ June 2004). Registration is required for a period of twelve months uninterrupted employ-ment. Time spent working legally in the UK prior to 1 May 2004 can count towards the twelve month registration period. An A8 national who has worked legally for twelve months does not have to register.

A worker who is registered under the Home Office scheme and working for an authorised employer in the UK will be treated as having a right to reside and will be able to claim Working Tax Credit, Child Tax Credit, Child Benefit, Housing Benefit, Income Support and Pension Credit.

A8 nationals who are still required to register (ie who have worked for less than twelve months without interruption) and lose their job will no longer be treated as having a right to reside and will not be entitled to Income Support, Income-based Jobseeker’s Allowance, Housing Benefit, Child Tax Credit, Child Benefit or Pension Credit. After registration, for twelve months, an A8 national will be entitled to the above benefits providing s/he satisfies the other conditions attached to the benefits. Family members will also have the right to the income related benefits outlined. Family members for this purpose include a spouse, children or grandchildren under 21 or dependent on the worker and also dependent parents, grandparents and great grandparents.

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Immigration Law

Nationals of Accession States

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