Migration – Social Security – Benefit ‘Magnet’ – Right to Reside – Healthcare – United Kingdom

Demagnetization of social security and healthcare for migrants to the UK

Neville Harris*

Abstract

Over the past two decades, starting with the social security ‘habitual residence’ test, UK governments have maintained a consistent policy of restricting the access of migrants to welfare benefits and public healthcare. It has represented a response to increased levels of inward migration flow, including anticipated increases arising from enlarged European Union (EU) membership, and the supposed ‘magnetic pull’ of UK welfare and healthcare systems to migrants. Adjustment to the benefit rules affecting EU migrants, which at times has come very close to crossing lines of legality under EU law, has lately featured prominently in the UK’s proposals to the EU over the terms of its Union membership. The article focuses on the policy changes and legal developments, including case law, across the areas of social assistance benefits, state retirement pensions and healthcare and assesses their impact, seeking to analyse the changing position of residence as an issue in entitlement and its implications.

1. Introduction

Restrictions to migrants’ entitlement to welfare benefits have been pursued by the United Kingdom (UK) governments throughout the past two decades. They intensified under the Coalition government (2010-15), which sought to ‘protect the integrity of the UK benefits system and discourage benefit tourism’,1 although its reforms were also consistent with the general policy aim of reducing public expenditure. Recently they were central to the negotiations between the UK and other Member States over the terms of the UK’s EU membership. There has also been an attempt to discourage entry to the UK for the purpose of receiving medical treatment. Reduced support for migrants can be perceived to represent a further shift, in the UK context, towards a national integration model. This rests on the idea that those migrating to a different state must become socially and economically established within it in order to make a legitimate claim on its public resources. This can be contrasted with a residence model, which connotes rights hinging on location alone – and thus the idea, in the EU context, that lawful residence in a state to which there is freedom of movement is sufficient.2

Social security and healthcare are the two largest areas of public expenditure in the UK. Millions of citizens depend on welfare benefits or the National Health Service (NHS). Around half of the UK population will, at any one point in time, be in receipt of at least one welfare benefit;3 and it has been calculated that, in England, within any 36 hour period, there are 1* Professor of Law, School of Law, University of Manchester, neville.harris@manchester.ac.uk. He is also visiting Professor of Welfare Law at Gothenburg University. He is very grateful to the two reviewers for their comments on the draft article. Department for Work and Pensions (DWP) (2014a), para 4.5.2 Thym (2015).3 Wenchao et al (2010), 4.

one million people receiving care from the NHS.4 Medical and welfare provision are areas of state activity that continue to represent the most substantial pillars of the post-Beveridge welfare state in the UK, delivering public benefits available as of right, albeit – particularly in the case of social security benefits – on a conditional basis. A broadly universalist vision of social protection for all on the basis of need has long predominated and continues to do so notwithstanding a growing policy emphasis on restrictive targeting and public costs containment, manifesting in cutbacks which appear almost inconsistent with the notion of an institutional model of a welfare system.5

It is probably still true to say, as Bradshaw argued some twenty years ago, that the UK’s welfare state is a ‘robust institution, firmly embedded in the social and cultural life of the country’.6 However, there is an apparent ambivalence in public attitudes towards it. Preservation of the NHS has huge public support. In a recent survey almost 90% of adults favoured or strongly favoured continued government support for the NHS as ‘a national health system that is tax funded, free at the point of use, and providing comprehensive health care for all citizens’.7 Not surprisingly, therefore, all the major political parties have recently expressed a commitment to maintain or increase NHS expenditure. Public spending on the NHS has been protected over the past five years. That is not, however, true of social security expenditure; indeed, there have been significant cutbacks and a ‘benefit cap’ has been introduced setting a maximum limit on a citizen’s overall entitlement from the welfare system.8 Such restrictions seem to have attracted popular approval. There is evidence that popular attitudes are ‘generally moving in line with the current direction of government policy… There is less enthusiasm about public spending on all types of benefits and an increasing belief that the welfare system encourages dependence’.9 The Conservative Government elected in May 2015 plans, by 2017-18, to make cuts of £12bn in annual welfare spending,10 which currently stands at nearly £200 bn.11

The influence of popular opinion on the direction of public policy is particularly reflected in the shaping of the welfare rights of migrants and visitors to the UK. Popular concern about high immigration levels – the levels are among the highest, per head of population, within

4 NHS website information at http://www.nhs.uk/NHSEngland/thenhs/about/Pages/overview.aspx [accessed 15 February 2016].5 For discussion of the different models of welfare system and where the UK sits in relation to them, see Harris et al (2000), ch.1; for some examples of recent cutbacks to provision in the UK, see Harris (2014).6 Bradshaw (1993), 45.7 Gershlick et al (2015) p.11. See also IPSOS-MORI (2006), p.6. 8 The benefit cap has recently survived an important legal challenge before the UK Supreme Court: R (SG and others) v Secretary of State for Work and Pensions [2015] UKSC 16.9 Park et al (2012), p.17.10 See the Budget speech by George Osborne MP, Chancellor of the Exchequer, 18 March 2015, at https://www.gov.uk/government/speeches/chancellor-george-osbornes-budget-2015-speech [accessed 30 March 2015]. Mr Osborne subsequently set out some of the measures to achieve this figure in his Summer Budget: details are at https://www.gov.uk/government/topical-events/budget-july-2015 [accessed 31 July, 2015]. 11 Made up of £168.1bn in benefits administered by the Department for Work and Pensions (or nearly £175bn, if operating costs are included) and nearly £30bn in tax credits and child benefit administered by Her Majesty’s Revenue and Customs: National Audit Office (NAO) (2015a), 4 and Annex, fig.3. http://www.nao.org.uk/report/department-for-work-and-pensions-2014-15-accounts/ [accessed 21 July 2015]; NAO (2015b), 4 http://www.nao.org.uk/wp-content/uploads/2015/07/Fraud-and-error-stocktake.pdf [accessed 21 July 2015].

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the EU12 – have had a marked influence, reinforced by suggestions that the availability of ‘generous’ benefits in the UK has been a factor.13 For example, further time limits on migrants’ benefits, announced in July 2014, were ‘addressing the magnetic pull of Britain’s benefits system’.14 According to opinion poll data, nearly two-thirds of UK citizens believe migrants receive an unfair share of welfare benefits.15 Some of the national media have reinforced this view.16 There has developed a kind of policy blindness to the true picture – that the objective evidence of welfare ‘magnetism’ is not at all strong, especially where skilled persons are concerned.17 Indeed, the UK Government has quietly acknowledged the absence of proof: ‘None of the evidence we received was able to point to specific research or analysis on the importance of access to social security benefits in the decision to migrate’.18

Official UK social security statistics do not currently show recipients’ nationality and thus migrant status.19 Estimates have, however, been published, based on new individual national insurance identification numbers (NINos) issued. In 2013, 31% of new NINos were issued to other EU nationals, 32% to persons from Asia and the Middle East and 24% to African immigrants.20 However, other independent analysis indicates that the proportion of EU origin is far higher and that these migrants’ influx gave rise to two-thirds of the overall net increase of 565,000 in the migrant population between 2011 and 2014.21 Department for Work and Pensions (DWP) figures show that in the year to December 2015, three-quarters of the 828,000 new adult non-UK NI registrations involved EU nationals.22 As regards the supposed propensity of migrants to draw welfare benefits, the DWP has calculated from the NINo and other data that, in 2013, among those of working age, 6.7% of non-UK nationals and 16.4% of UK nationals, were, initially at least, claiming a DWP-administered working-age benefit.23 The data suggest that a considerably greater proportion of migrants are supporting themselves through work than via social security, a finding consistent with evidence that it is work rather than possible benefit entitlement that mainly motivates EU nationals to move to the UK.24

In the UK, healthcare provision is not regarded as a facet of social security but an entirely separate area of provision. This field has also seen growing social and political pressures on government to reduce access for non-UK citizens. As discussed further below, the UK has

12 Based on Eurostat, Migration and migrant population statistics (European Commission, 2015) online at http://ec.europa.eu/eurostat/statistics-explained/index.php/Migration_and_migrant_population_statistics [accessed 2 March 2015] (figures for May 2014) and Ford (2015). 13 Migration Advisory Committee (2014), para 3.79.14 Cameron (2014), at http://www.telegraph.co.uk/news/uknews/immigration/10995875/David-Cameron-Were-building-an-immigration-system-that-puts-Britain-first.html [acccessed 2 March 2015].15 Cited in HM Government (2014a), paras 2.62.16 See, e.g., the main article on the front page of a leading national newspaper: Coates and Charter (2014).17 Migration Advisory Committee (2014), paras 3.79-3.82; Juravle et al (2013), pp.44-54. 18 HM Government (2014a), paras 2.55. 19 Ibid, para 2.56.20Department for Work and Pensions (2013c), p.10. 21 Migration Observatory tables 1 and 2 at http://www.migrationobservatory.ox.ac.uk/number-foreign-born-local-area-district [accessed 9 March 2015]. 22 Office for National Statistics (2016). Nearly one-quarter of all these new registrations (209,000) were Romanian or Bulgarian nationals.23 Department for Work and Pensions (2013c), p.10. Figures for 2011/12 (later figures were not available). 24 Juravle et al (2013), p.47; see also Office for National Statistics (2015), fig.7.

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obligations25 to provide free health services to non-resident European Economic Area (EEA) nationals and some others (such as where it has reciprocal arrangements with the relevant country). On the other hand, the issue of ‘health tourism’ has acquired a raised media and political profile. Public disquiet is said to centre in particular on the increased pressure on health services and resultant delays in or shortages of provision for UK citizens. The Chief Executive of the Patients’ Association, an interest group for NHS patients, has referred to ‘longstanding public concern that the current rules regulating access to NHS services [by non-UK citizens] are both too generous… and poorly applied’.26 Government-commissioned research, published in autumn 2013, indicated that the annual gross cost of NHS provision in England to overseas visitors and temporary migrants was approximately £2 billion, of which between £100 million to £300 million was attributable to ‘health tourism’,27 namely visiting ‘with the deliberate intent to obtain healthcare to which [the person] is not entitled’.28 Meanwhile, a press investigation, drawing on data obtained from 100 NHS health bodies (health trusts), has calculated that unpaid bills from foreign patients with liability to pay for treatment totalled £62.8m between 2010-15; officials were reportedly ‘aware of the risk of the NHS being a magnet for the seriously ill from overseas because it will not turn down anyone who needs urgent treatment’.29

The law surrounding these policy areas in the UK is particularly complex. This article attempts to analyse the trends within, and the impact of, the evolving legal framework, which has particularly important implications for freedom of movement and equality in the EU context.

2. The organisation of social security by the state in the UK

It would in fact be more accurate to refer to social security system in Great Britain rather than the UK, because Northern Ireland has its own separate administrative and legislative framework for this field of provision.30 However, constitutional changes will also make the notion of a wholly British welfare system questionable in the future, since the Scottish Government and Parliament are being granted autonomy over a range of social security matters in furtherance of a commitment given by the UK government (supported by main opposition parties) prior to the Scottish independence referendum in September 2014.31 The proposed areas to be devolved were set out in November 2014 by the cross-party Smith Commission32 and are now set out in Part 3 of the Scotland Act 2016. However, the main welfare benefits for older people (state pensions and state pension credit) will be ‘reserved’, and therefore remain under national (UK) government control, as will most of the main

25 See, in particular, Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients' rights in cross-border healthcare.26 Quoted in Owen (2014).27 Prederi (2013), p.11.28 Prederi (2013), p.109.29 Kerbaj and Ungoed-Thomas (2015). 30 See for example Simpson (2015). 31 Of the population of the Great Britain in mid-2013, 8.6% comprised residents of Scotland: Office for National Statistics (2014), fig.1. 32 Smith Commission (2014); see also Berry et al (2015) and HM Government (2014b).

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social assistance benefits,33 although the Scottish Government will have power to provide various additional (discretionary) payments.34

Social security in the UK is currently undergoing its most radical reforms since Beveridge. Particularly significant is the phased introduction of ‘universal credit’ (UC). As shown in Part III of the table below, UC will replace various means-tested benefits and (in-work) tax credits (the latter comprise a state supplement to workers on relatively low wages).35 Also, responsibility for social security administration will largely rest with the DWP alone rather than being spread across the DWP, Her Majesty’s Revenue and Customs (which has administered tax credits and child benefit) and local authorities (responsible for housing benefits and local council tax relief). Both reforms are underpinned by a policy aim of creating a simpler system.36 Even when UC has been fully introduced the basic division between contributory (national insurance) and non-contributory (either means-tested or non-means tested) benefits will continue, although there has been a decline over recent decades in the extent of contributory entitlement, leaving aside retirement pension. It is not possible here to survey in detail the full range of benefits and credits37 and their historical background.38 However, table 1 provides a breakdown of the main benefits.

Table 1: Main UK welfare benefits and tax credits

Name of benefit Brief description EU classification 39

I Contributory benefitsContribution-based Employment and Support Allowance (ESA)

Working age incapacity/sickness benefit available for up to 365 days of limited work capability.

Social security benefit (SSB)40

Contribution-based Jobseeker’s Allowance (JSA)

Unemployment benefit. Maximum entitlement period of 6 months.

SSB

Bereavement payment and allowance

Lump sum and weekly payments for survivors. SSB

State Retirement Pension Old age pension. SSBMaternity, paternity or adoption pay

Short-term earnings-replacement paid via employer. There is also maternity allowance.

SSB

33 See Scottish Government (2015) and Welfare Reform Committee (2015). 34 As proposed in Smith Commission (2014), paras 42-56. See the Scotland Act 2016 ss 24-26. The Scottish Government also aims to have control over how housing support (under universal credit) will be paid out, as authorised by the Scotland Act 2016, s.30. It will also be able to amend the way housing costs are calculated for UC claimants in residential accommodation: s.29.35 For details of the progress of implementation of UC by September 2015, see https://www.gov.uk/government/news/next-stage-of-universal-credit-rollout-begins [accessed 28 September 2015].36 DWP (2010). ‘Universal Credit gives us a clearer view of claimants’ income as they move in and out of employment, replacing the more complicated system of out-of-work benefits and tax credits. It simplifies the processes for reporting self-employed earnings and the costs of childcare, which have led to errors in the past. A less complicated system also reduces the scope for staff to make mistakes when calculating entitlements’: DWP (2015b) p.5.37 See further Harris (2013) ch.2.38 See further Harris et al (2000); and Wikeley (2002).39 Regulation 883/2004 on the co-ordination of social security systems (corrected version) [2004] OJ L200/1; Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 on the procedure for implementing Regulation (EC) No 883/2004. We shall ignore here the position of the limited numbers of people who are still covered by the old co-ordination rules (in Reg.1408/71). 40 Regulation 883/2004 (ibid), Art 3.1.

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Statutory Sick Pay 28 weeks of employer-paid sickness benefit SSBII Non-contributory and (mostly) non-means-tested benefits

Child Benefit For those with young dependants. SSBDisability Living Allowance (DLA) and Personal Independence Payment (PIP)

Weekly disability allowance. Can be claimed by under-65s. DLA is being replaced by PIP. DLA and PIP have care/daily living (CC) and mobility components (MC).

SSB (for CC)41 or special non-contributory benefit (SNCB)42 (for MC)43

Attendance allowance For disabled people claiming when aged 65 or over.

SSB

Winter fuel payment Annual fuel payment for older people. SSBIII Income-related benefits and tax credits

Universal credit (UC) Monthly benefit for jobseekers, non-working sick/ disabled people and low paid.

Social assistance (SA)44

*Income support Weekly basic benefit for people unable to work due to sickness, disability or caring.

SA45

*Income-based JSA Weekly benefit for the unemployed people with capacity for work and no entitlement to contribution-based JSA.

SA

*Housing Benefit Assistance towards rent. SA46

*Income-related ESA For working age persons with limited work capability due to ill health/disability and no entitlement to contributory ESA.

SA47

*Working Tax Credit Credited to persons in low paid work of sufficient hours per week.

SA48

*Child Tax Credit Basic credit for children’s parent/carer on means-tested benefit or in low paid work.

SSB

State Pension Credit Like income support, but for those of (female) pensionable age.

SNCB

The Social Fund Funeral or maternity grants and cold weather payments.

SA

* = benefits being replaced by UC

41 Held to fall within this category by Case C-299/05 Commission v European Parliament and Council, [2007] ECR I-8730 and Secretary of State for Work and Pensions v LT (DLA) [2012] UKUT 282 (AAC). See also SL v Secretary of State for Work and Pensions (DLA) [2014] UKUT 108 (AAC). The CJEU may revisit this issue soon in the light of the reference made to it by the UK Supreme Court in Secretary of State for Work and Pensions v Tolley (Deceased) [2015] UKSC 55.42 SNCBs are included in scope of Reg 883/2004 n 39 above by Art.3.3 and Annex 10.43 Case C-537/09 Bartlett, Ramos and Taylor v Secretary of State for Work and Pensions [2011] ECR I-3417 held that the mobility component of DLA was a special non-contributory benefit whose payment may be limited to persons in the UK.44 Any areas of provision falling within this category would be outside the scope of the co-ordination rules: Reg 883/2004 (note 39 above), Art.3.5. The UK Government sees UC as classifiable in the same way as income support (see below). See further Social Security Advisory Committee (2012), Government response, para 21. Two of the benefits that UC is replacing – housing benefit and working tax credit – have both been held not to be SSBs or SNCBs: see nn 46 and 47 below.45 There is no prescribed list for social assistance but it is likely that the UK would consider its main means-tested income replacement benefit, income support, as falling within it, particularly in view of its removal from the list of special non-contributory benefits in June 2012: Walker et al (2014), p.248.46 Commissioner’s Decision CH/1400/2006 at paras 37-39.47 Recently held by the Court of Appeal to be a social assistance benefit in Iman Alhashem v Secretary of State for Work and Pensions [2016] EWCA Civ 395, as the benefit’s function was held not to be ‘to facilitate access to the labour market’ (per Arden LJ at [24] and [42]).48 MR v HMRC [2011] UKUT 40 (AAC), para 17, holding that the credit did not fall within any of the matters listed in relation to SSBs and that it was not a listed SNCB either.

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Set against the legislative and administrative framework described above, the analysis next focuses on the three areas selected for coverage in this themed issue: contributory old age pensions; non-contributory (social assistance) benefits; and health care.

3. State retirement pension

For the most part, state retirement pension in the UK is not residence based. 49 Changes to the pension are due to take place in April 2016, under the Pensions Act 2014, as discussed below. At present, and for all those already receiving a pension before April 2016, the pension could fall within one of three categories – A, B or D.50 Categories A and B are the main categories and are contribution-based. Category D is a non-contributory pension for people aged over 80 and the only one covered by a residence test.51 Category A pension is based on the claimant’s own national insurance (NI) contributions record, whereas Category B is derived from a spouse’s or civil partner’s (or late spouse’s or civil partner’s)52 contributions. Work in other countries can count towards satisfaction of the contribution conditions in the UK, in the case of EEA nationals, by virtue of the EU co-ordination rules. 53 For work in non-EEA states, however, satisfaction of contribution conditions will depend on the existence of reciprocal or other agreements between the UK and the relevant state. UK state pension entitlement is exportable, although the rate will be frozen and not uprated beyond that at the departure date from the UK unless the claimant has moved to another EEA state or one with a reciprocal agreement with the UK.

The Pensions Act 2014 changes will establish a new single-tier state pension.54 There will be no equivalent to the category B pension, since it is believed that the need for this ‘derived entitlement’ will all but disappear. This view is premised in part on increased participation by women in the workplace (contributing to their own pension entitlement), the equalisation of the pension ages for men and women (the age is also being increased from 65 to 66 in 2020), and the reduced number of years of contributions needed for entitlement in one’s own right (making it easier for women who took time out for childcare reasons to qualify for full pension). Currently around 90% of people reaching pension age qualify in their own right.55 However, underlying the ending of derived entitlement is also a concern about non-UK nationals securing entitlement to a UK benefit, since there has reportedly

49 See the Social Security Contributions and Benefits Act 1992 s 113 read with the Social Security Benefit (Persons Abroad) Regulations 1975 (SI 1975/563).50 See the Social Security Contributions and Benefits Act 1992 Part II. There was also Category C, for persons reaching retirement age before 5 July 1948.51 See the Social Security Contributions and Benefits Act 1992 s.78. The category D pension claimant must have been ordinarily resident in Great Britain (GB) on his/her 80th birthday or (if later) on the date they claim the pension and he/she must have lived in GB for a minimum of 10 years in any period of 20 years ending on or after their 80th birthday. See the Social Security (Widow’s Benefit and Retirement Pensions) Regulations 1979 (SI 1979/642), reg.10, as amended. See also Secretary of State for Work and Pensions v Garland [2014] EWCA Civ 1550. 52 Also a civil partner or late civil partner’s contribution.53 In particular, Regulation 883/2004, Art 7.54 See also the State Pension Regulations 2015 (SI 2015/13). For background to the new pension, see DWP (2013a).55 DWP (2013b).

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been an increasing incidence of retirement pension claims where a UK national has emigrated and then has married or entered into a civil partnership with a foreign national.56

In summary, therefore, regarding state retirement pensions, residence has policy relevance in the UK but is of limited significance in relation to questions of entitlement to the main forms of the pension.

4. Migrant access to social assistance benefits

UK adjustments to migrant entitlement to social assistance benefits have been made in response to case law and specific EU legislative developments (including the Citizenship Directive57), in three distinct policy phases: (1) the introduction of the ‘habitual residence test’ in 1994; (2) the response to EU enlargement and the introduction of a ‘right to reside’ test, post-2004; and (3) the introduction of major restrictions, particularly for jobseekers, under the Conservative-led Coalition government 2010-15. There have long been separate restrictions for people seeking asylum, who have been excluded from entitlement to all the main welfare benefits58 and have had to rely on a distinct (and not generous) system of ‘asylum support’.59 People who have applied for but been refused asylum are similarly excluded and will only be given a payment card for food, clothing and toiletries.60

4.1. The habitual residence test

The political climate surrounding the introduction of the ‘habitual residence’ test in 199461 is comparable to that enveloping the issue of migrants’ benefits today,62 particularly with regard to the rhetoric of ‘benefit tourism’ and the issue of public expenditure restraint. As introduced, the habitual residence test conditioned access to the main income-related benefits. It was linked to the exclusion from entitlement for a ‘person from abroad’, defined with reference to a lack of confirmed citizen status or of a right to enter and remain in the UK, or permission for only temporary admission.63 Added to the definition of person from abroad was anyone ‘not habitually resident in the United Kingdom, the Republic of Ireland, the Channel Islands or the Isle of Man’. However, excluded from this additional part of the definition were migrants who were workers for the purposes of Council Regulation (EEC) 1612/6864 or Council Regulation (EEC) 1215/70, persons with a right to reside in the UK by virtue of EC Directives 68/360 or 73/148, refugees and persons granted ‘exceptional leave’ to remain in the UK. Little more than a year after its introduction, 30,000 claimants had

56 DWP (2013b) para 22.57 Council Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L158/77).58 Immigration and Asylum Act 1999, s.115. For background see Harris et al (2000), pp.201-203.59 Covered by the Asylum Support Regulations 2000 (SI 2000/704), as amended. For most single people aged 18 or over the rate of support is currently £36.95 per week, compared with the JSA rates of £57.90 or £73.10.60 The basic details of the scheme are at https://www.gov.uk/asylum-support/overview [accessed 31 March 2015].61 Income-related Benefits Schemes (Miscellaneous Amendments) (No.3) Regulations 1994 (SI 1994/1807). 62 See Adler (1995).63 Persons from abroad could, however, claim an ‘urgent cases’ benefit payment in some cases: Income Support (General) Regulations 1987 (SI 1987/1967) regs 21 and 70 and Schedule 7 para 17. 64 To avoid being in potential breach of EC equal treatment law, this included all European Economic Area (EEA) nationals.

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been refused income support due to the test; and benefit expenditure savings were estimated at £37 million.65

The test’s imprecision made it difficult to apply.66 It was also subject to judicial scrutiny as its legality came under challenge.67 Much of the litigation focused on the meaning of ‘habitually resident’. In Nessa v Chief Adjudication Officer68 the House of Lords held that satisfaction of the test required taking up residence in the UK and living there for a period showing that residence had become ‘habitual’ and would continue to be so. Habitual residence would be a question of fact to be decided in the individual case; relevant factors would include taking one’s possessions to the UK, having durable ties there and bringing family members. The period of residence required for it to be ‘habitual’ would vary from case to case, but it had to be ‘an appreciable period’ (a condition derived from wider case law on the issue), 69 generally assumed to be between one month and three months,70 although could be shorter for claimants previously habitually resident in the UK at some point.

Nessa did not apply to EU citizens. In Swaddling v Chief Adjudication Officer71 the European Court of Justice confirmed a slightly different test, arguably one that was more easy to satisfy, in relation to migrants’ rights under EC Regulation 1408/71 Article 10a (which covers SNCBs, of which income support was one, and grants such benefits to those ‘exclusively in the territory of the member state in which they reside’). This test related to the place that represented the habitual centre of the claimant’s interests and where there was the chief social attachment.72 In a subsequent UK decision, an Italian citizen who had been in the UK for only 11 days, had spent much time previously there and had a clear intention to remain was held to meet the Swaddling test and consequently could qualify for income support.73

As to whether the UK’s habitual residence test was consistent with freedom of movement and equal treatment under EC law,74 Collins75 held that it discriminated against persons exercising their right of freedom of movement in order to seek employment. The test would be justified only, inter alia, if it was in pursuit of a legitimate aim and was proportionate to it. The former was satisfied by a benefit condition of having a link with the employment market in the state and undergoing a period of genuine search for work.76 To be proportionate the period of residence required should not to ‘go beyond what was necessary in order to attain that objective’,77 namely no longer than was needed to demonstrate a genuine search for work. 65 House of Commons Debates, Vol.629 col.573w, 16 January 1996.66 See Social Security Advisory Committee (1994).67 See e.g. R v Secretary of State for Social Security ex parte Sarwar, Getachew and Urbanek (1995) 11 April (unreported).68 [1999] 4 All ER 677.69 See Re J (A minor) (Abduction; Custody Rights) [1990] AC 562.70 As subsequently confirmed in Commissioner’s Decision CIS/4474/2003. 71 (Case C-90/97).72 Ibid, paras 29 and 30.73 Commissioner’s Decision CIS/15484/96.74 Article 48(2), read with Articles 6 and 8, of the Treaty. 75 Collins v Secretary of State for Work and Pensions (C-138/02) [2005] QB 145. The claimant was an unemployed person with US and Irish citizenship claiming JSA who did not have a right of residence in the UK since he was not a ‘worker’ under Council Regulation 1612/68 nor held a right to reside under Directive 68/360 on freedom of movement.76 Ibid at [69] and [70].77 Ibid at [72].

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The habitual residence test added both complexity and uncertainty to UK law. Although, in Collins, the Court of Justice confirmed that the test should ‘rest on clear criteria known in advance’,78 the UK Government showed no intention to legislate on the meaning of habitual residence. In December 2013 a new more rigorous application of the test was announced, with more probing questions about work-search efforts prior to entering the UK and more than 100 further questions for applicants.79 It was described as a ‘new’ test, although in reality involved a more robust application of the existing test. No evidence is as yet available on its impact.80

4.2. The right to reside test

The ‘right to reside’ test was designed to reinforce the habitual residence test. From 1 May 200481 a ‘person from abroad’ could not be classed as habitually resident in the UK82 if he or she did not have ‘a right to reside’ there. It was hoped that this new requirement would prevent abuse of the benefit system by people who came to the UK ‘for more than a short period to live on benefits’.83 There was a political objective of assuaging concerns among the UK electorate about ‘the issue of mass immigration’.84 There was exemption from the habitual residence test in the case of workers from any of the eight states joining the EU on the above date (the ‘A8’) who were required to be registered under the UK’s workers registration scheme.85 When the seven year post-accession period in which restrictions to access by A8 nationals to other Member States’ labour markets expired, after 30 April 2011, the additional restriction on their right to reside in the UK was brought to an end. A similar restriction introduced for nationals of Bulgaria and Romania when those two states joined the EU on 1 January 200786 was removed from 1 January 2014. There has been a separate registration scheme for Croatian nationals since Croatia joined the EU on 1 July 2013.87

The right to reside test operates within a highly complex legal framework. Furthermore, there is an important temporal dimension to the right to reside, since periods of residence pre-dating particular changes in the rules may still be relevant to determinations. The law was adjusted following the implementation of the Citizenship Directive on 30 April 2006;88

78 Ibid.79 DWP, ‘Improved benefit test for migrants launched’, Press Release 13 December 2013, at https://www.gov.uk/government/news/improved-benefit-test-for-migrants-launched [accessed 9 April 2015].80 For example, the government has not been able to provide details of the numbers of people who have been subjected to the new arrangements, or the outcome: HC Deb 25 March 2014 c231w.81 Social Security (Habitual Residence) Amendment Regulations 2004 (SI 2004/1232). The workers registration scheme was established under the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219).82 Or in the rest of the ‘common travel area’ (above) - the Republic of Ireland, the Channel Islands or the Isle of Man. 83 DWP (2004), para 8.84 Larkin (2005) at p.447. 85 SI 2004/1219 (n.81 above) and see Zalewska v Department for Social Development [2008] UKHL 67 as regards the consistency of these regulations with the EC Treaty. See also O’Neill (2011) at pp.230-233.86 See the Accession (Immigration and Worker Authorisation) Regulations 2006 (SI 2006/3317).87 See the Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013 (SI 2013/1460). The EU has permitted a transitional period of up to 7 years in which restrictions may be applied to the free movement of workers from Croatia to member countries of the EEA. 88 See in particular the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations) (SI 2006/1003).

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various technical amendments have since been made to the right to reside itself89 and to the rules governing entitlement to social assistance benefits affected by it.90 The right to reside test has a particular relevance to EEA nationals (and Swiss nationals91). Migrants from non-EEA states, assuming they do not have a right to enter and remain in the UK, will anyway be subject to immigration control and therefore, as persons from abroad, will automatically be excluded from benefit entitlement; and so the right to reside test will not make any difference to them.92 On the other hand, British citizens and persons with a permanent right to reside in the UK (generally due to living in the UK for five years with a right to reside) will meet the residence requirement for benefit purposes.93

The Citizenship Directive has influenced the residence requirement in the UK in several important ways. The initial right of residence in another EEA member state conferred on EEA nationals by the Directive94 has been implemented in the UK.95 However, since the Directive provides for derogation from the right to equal treatment with nationals of the host state regarding entitlement to social assistance during the first three months of residence,96 the UK has been able to bar non-UK nationals from various income-related benefits during that period.97 When the period of residence of an EEA national in the UK extends beyond three months, he or she will acquire a right to reside for benefit purposes98 if (or if a family member99 of) a ‘qualified person’ – namely, a ‘jobseeker’, ‘worker’, ‘self-

89 The Immigration (European Economic Area) (Amendment) Regulations 2012 (SI 2012/1547). The primary carer of a child who is a self-sufficient EEA national will hold a derivative right of residence, where denial of such a right would mean that the child is unable to exercise his or her own right of residence, a change in the rules designed to give effect to the decision in Chen (C- 200/02). These 2012 regulations also gave effect to the judgments in Ibrahim (C-310/08) and Teixeira (C-480/08) (both of 23 February 2010), where the Court confirmed, inter alia, that the right of access to education under Article 12 of Regulation (EEC) No 1612/68 will apply to the children of former migrant workers even where the cessation of employment preceded the start of the children’s education. This right gives rise to a right of residence for the children and their parent caring for them. 90 In particular the Social Security (Persons from Abroad) Amendment Regulations 2006 (SI 2006/1026). They, for example, inserted a new regulation (reg.21AA) on persons from abroad into the Income Support (General) Regulations 1987 (SI 1987/1967). See also the Social Security (Habitual Residence) (Amendment) Regulations 2012 (SI 2012/2587). The regulations governing two benefits classed as social security benefits under EU law were also amended, via the Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012 (SI 2012/2612). 91 Switzerland is treated as an EEA State for the purposes of the residence rules: see the 2006 Regulations, reg.2(1), which also deems Norway, Iceland and Liechtenstein (all non-EU States) to be EEA States. Turkish nationals will also not be excluded from potential entitlement, as so will be subject to the habitual residence and right to reside tests, since Turkey is a signatory to the European Convention on Social and Medical Assistance and the European Social Charter with the result that they may not be counted as persons ‘subject to immigration control’: Wood et al (2015) p.322-323. 92 Wood et al (2015), p.320.93 EU Directive 2004/38 Art.16 and the 2006 Regulations, reg.15.94 Article 6.95 2006 Regulations, reg.13.96 Article 24.97 See e.g. the Income Support (General) Regulations 1987 (SI 1987/1967) reg.21AA(2) and (3)(a) and (c). Other benefits subject to a similar restriction are housing benefit, income-based JSA, income-related ESA, pension credit and universal credit.98 2006 Regulations, reg.14. Citizenship Directive Art.7.99 Also included are family members of EEA nationals who have a permanent right of residence and family members who have retained the right of residence.

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employed person’, ‘self-sufficient person’ or (provided he or she has ‘comprehensive sickness insurance cover in the UK’100) ‘student’.101

In some situations ‘worker’ status may be retained when not working, such as when temporarily unable to work due to an accident or illness; or if voluntarily unemployed but registered as a jobseeker with the DWP and meeting certain conditions related to attachment to the labour market.102 Article 7(3) of the Citizenship Directive classes people in such circumstances as workers. This was at issue in Saint Prix,103 where a French woman had given up her employment in the UK because she was pregnant and found her work too strenuous due to her pregnancy. The CJEU,104 on reference from the UK Supreme Court for a preliminary ruling as to her status, considered that a woman in her position could not, for Art.7(3) purposes, be considered as unable to work due to illness. But for the purposes of Art.45 TFEU (as regards freedom of movement of workers),105 including its wider definition of ‘worker’, the continuing existence of an employment relationship was not needed; therefore, Art.7(3) arguably did not list exhaustively the circumstances in which a person who was no longer in employment could benefit from worker status.106 Moreover, the claimant’s non-availability in the UK employment market did ‘not mean that she has ceased to belong to that market during that period, provided she returns to work or finds another job within a reasonable period after confinement’.107 A person in her situation, would, subject to that proviso, retain ‘worker’ status.108

Worker status was also considered by the UK Upper Tribunal (UT) in RR.109 The issue was whether a German national living in the UK had a right to reside as a ‘worker’ under Art.39 of the Treaty (now Art.45 of TFEU). She had previously worked in the UK but, following a relationship breakdown, had returned to Germany to work. She returned to the UK several

100 On the definition of ‘student’, see 2006 Regulations, reg.4(1)(d). Ahmad v Secretary of State for the Home Department [2014] EWCA Civ 988 held that having a right of access to NHS services did not in itself mean that a student from Denmark had comprehensive sickness insurance cover (CSIC) in the UK for the purposes of the Citizenship Directive Art.7(1). The court did not consider itself bound by a European Commission view (see Press Release ‘Free movement: Commission asks the UK to uphold EU citizens’ rights’, 26 April 2012 at http://europa.eu/rapid/press-release_IP-12-417_en.htm?local=en [accessed 4.01.2016]) that a refusal to regard NHS cover as CSIC infringed EU law. The court accepted the Secretary of State’s argument that if entitlement to NHS treatment constituted CSIC the state could not be relieved of the burden that the Directive was intended to ensure was not placed upon it: see [36] and [71]. See also the discussion of self-sufficiency below. 101 2006 Regulations, reg 6(1).102 Namely had worked for a year or more before becoming unemployed, or had been unemployed for no more than six months, or could provide evidence of looking for work in the UK and having a ‘genuine chance’ of being hired: 2006 Regulations, reg.6(2).103 Saint Prix v Secretary of State for Work and Pensions [2012] UKSC 49.104 Jessy St Prix v Secretary of State for Work and Pensions (Case C-507/12).105 Art.45 (ex Art. 39 TEC) provides for freedom of movement for workers, for abolition of discrimination based on nationality between workers of the Member States in relation to employment, remuneration and employment conditions, and confers associated rights including free movement and to remain in a state subject to limitations justified on grounds of public policy, public security or public health: see Pennings (2015), ch.9. 106 Jessy St Prix n 104 above, at [38].107 Ibid at [41].108 Ibid at [47].109 Secretary of State for Work and Pensions v RR [2013] UKUT 21 (AAC). The decision was applied in RO v Secretary of State for Work and Pensions [2015] UKUT 0533 (AAC).

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years later and intended to reside there. She held an offer of employment as a research assistant, working from home. The offer remained open but health factors prevented her from accepting it. The UT thought it an exceptional case and concluded that she was a ‘worker’. However, it rejected the argument that the right to reside test unlawfully interfered with freedom of movement. The UT referred to Patmalniece110 in which the UK Supreme Court had held that while the right to reside was indirectly discriminatory it was objectively justified, in particular due to the risk of ‘social tourism’.111 The decision in Patmalniece followed a number of court decisions in which the right to reside test was found to be compatible with European law.112 As a consequence, EEA nationals (including EU citizens) could therefore legitimately be denied the various social assistance benefits in cases where they were not within the categories of qualified persons, including workers, those retaining worker status or self-sufficient persons.

The issue of self-sufficiency has so far received relatively limited judicial attention in the UK. To be a ‘self-sufficient person’ under the UK’s regulations the person in question must have sufficient resources not to become a burden on the UK’s social assistance system and have comprehensive sickness insurance cover (CSIC) in the UK.113 In VP,114 Judge Ward felt bound to follow the Court of Appeal’s view in FK (Kenya) v Secretary of State for the Home Department,115 that the requirement to have CSIC was ‘an integral part of self-sufficiency under the regulations….A person who has to rely on the [UK’s NHS] is no more self-sufficient than a person whose resources are inadequate so that he may become a burden on the [UK’s] social assistance system’. Brey116 has held that ‘social assistance’ is to be

‘interpreted as covering all assistance introduced by the public authorities, whether at national, regional or local level, that can be claimed by an individual who does not have resources sufficient to meet his own basic needs and the needs of his family and who, by reason of that fact, may become a burden on the public finances of the Host Member State during his period of residence which could have consequences for the overall level of assistance which may be granted by the state’.117

UK law adopts a test of sufficiency of resources as related in part to whether the claimant’s (and any relevant family member’s) resources are greater than the level that would make them eligible for a social assistance benefit.118 However, Brey suggests that merely because a person so lacks resources that they would be eligible for a social assistance benefit does not mean that they are not self-sufficient. Rather the authorities should carry out ‘an overall assessment of the specific burden which granting the benefit would place on the national social assistance scheme as a whole’, with reference to the claimant’s personal

110Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11.111 Ibid, at [51], per Lord Hope, citing Trojani v Centre Public d'Aide Sociale de Bruxelles [2004] 3 CMLR 38. See further Cousins (2011).112 See e.g. Abdirahman v Secretary of State for Work and Pensions [2007] EWCA Civ 657, which was decided in combination with another case, Ullusow v Secretary of State for Work and Pensions.113 2006 Regulations, reg.4(1)(c).114 VP v Secretary of State for Work and Pensions (JSA) [2014] UKUT 32 (AAC), at [101].115 [2010] EWCA Civ 1302, at [15].116 Pensionsversicherungstanstalt v Brey (C-140/12). 117 Ibid at [61].118 2006 Regulations, reg.4(4).

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circumstances.119 The receipt of social assistance was not of itself sufficient to indicate that the individual constituted an unreasonable burden on the state.120 Despite the relative paucity of Brey-related UK jurisprudence to date, if the ruling means that a claim for means-tested benefit by a migrant should not in itself be considered to establish a lack of self-sufficiency there is a potential problem for UK law,121 since as noted above its test of self-sufficiency is related to the level of resources that would trigger eligibility to benefit. The government nevertheless considers Brey to support its policy of tying benefit entitlement to legal residence requirements (a view endorsed by the Advocate General’s Opinion recently in Case C-308/14 Commission v United Kingdom122) and placing restrictions based on need in order to prevent EU citizens becoming an unreasonable burden on the social assistance system.123

The UK Government has also derived support for its policy from the Grand Chamber’s ruling in Dano,124 where a non-working Romanian living in Germany who had entered without the intention to seek work was denied entitlement to German basic benefit, a form of SNCB. Neither Art 4 of Regulation 883/2004 (the co-ordination regulation (above) – which provides that persons covered by the regulations must ‘enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof’) nor the Citizenship Directive125 precluded such restriction for those without a right of residence. Ms Dano was considered not self-sufficient (a matter to be judged by looking at the individual circumstances, without reference to the social benefits which were claimed) and therefore to have no right of residence under the Directive. Accordingly, she had no right to equal treatment with regard to the benefit. Dano was cited in VW v Secretary of State for Work and Pensions in 2014,126 where a discrimination claim by a German national who moved to the UK to be nearer to her (Canadian) daughter who lived there was rejected.127 She was financially dependent on her daughter and son-in-law (a UK national) and had been refused pension credit under the right to reside test.128 Meanwhile, parts of the British press have proclaimed Dano as supporting government curbs on migrants’ welfare benefits.129 Certainly Dano confirms that being lawfully resident in a Member State does not provide one with the same status as a national of that state when it comes to accessing benefits, benefits which may provide the very subsistence necessary to be able to exercise that right to be present in the state.130 Moreover, recently in Mirga the UK Supreme Court found it ‘hard to read the 2004 Directive as treating a refusal of social assistance as constituting a species of constructive expulsion even if it results in the person concerned leaving the host

119 Brey n 116 above at [64].120 Ibid at [75].121 As was presciently identified by Minderhoud (2011).122 Albeit that that case concerned child benefit and child tax credit (both social security benefits). See further the explanation at note 234 below.123 See HM Government (2014a), para 1.34.124 Dano v Jobcenter Leipzig (Case C-333/13)125 Note 57 above.126 [2014] UKUT 573 (AAC).127 She was also unable to derive a right to reside as a family member of her son-in-law, since he was not considered a ‘worker’. 128 In under the State Pension Credit Regulations 2002 (SI 2002/1792).129 See, for example, Grice (2014); and Chorley and Doyle (2014).130 Hancox (2015).

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member state’.131 The court also rejected an argument that the authorities were obliged to consider the proportionality of denying benefit in individual cases where self-sufficiency and the burden on the state were at issue. Whatever the legal logic in evidence in these developments, questions nevertheless arise about the status of Union citizenship on the basis of equality.132

Often developments in UK social security law affecting migrants are reactive. A good illustration is the response to Zambrano.133 At issue was the possibility of non-EEA migrants deriving a right to reside and to work in the EU Member State from the protection afforded to their children as EU nationals, under Article 20 TFEU, including their right as EU citizens to reside freely in a Member State’s territory. Mr Zambrano, a Colombian, was held to have such a derived right in Belgium from his children’s EU citizen status. Amendment of the UK’s regulations in November 2012 to block similar claims134 prompted legal challenges, e.g. Sanneh,135 where the Court of Appeal in effect upheld the new restrictions although only on the basis that some form of support would be available to the carer from the state. It had in mind financial help and/or accommodation for both parent and child from local authorities, which it considered would ensure compliance with the Article 20 citizenship principle. Other aspects of the challenge, related to proportionality and discrimination, were also dismissed. The DWP estimated that annually 700 potential claimants would be affected by the anti-Zambrano amendments, saving between £3.8 million and £9.4 million per annum in income-related benefits.136

A range of further restrictions has been introduced, outlined below. While there is little evidence to date on their impact, there is an undoubted concern that some of the most socially and economically vulnerable migrants, such as the homeless, will be particularly disadvantaged by them.137

4.2.1 Income-based JSA restrictions during first three months in the UKIn January 2014, a measure affecting returning UK nationals as much as EEA migrants introduced a precondition of having been in the UK (or the Republic of Ireland, the Channel Islands or the Isle of Man) for three months before one could be considered habitually resident for the purposes of income-based JSA.138 (An exception has, however, been introduced to aid some returning UK nationals.139) A criticism of this condition is that it goes beyond the Collins (above) threshold of proportionality, based on the period necessary to show a genuine link with a labour market.140 A similar three months residence requirement

131 Mirga v Secretary of State for Work and Pensions; Samin v Westminster City Council [2016] UKSC 1.132 See Dusterhaus (2015). 133 Garardo Ruiz Zambrano v Office national de l’emploi (ONEm) (Case C-34/09) (8 March 2011).134 Social Security (Habitual Residence) (Amendment) Regulations 2012 (SI 2012/2587), which came into force on 8 November 2012. The policy intention is set out in DWP (2012).135 Sanneh v Secretary of State for Work and Pensions; Scott v London Borough of Croydon; Birmingham City Council v Merali and Others; R (HC) v Secretary of State for Work and Pensions [2015] EWCA Civ 49. 136 The latter amount would be the cost if all Zambrano carers claimed income support, housing benefit and council tax benefit, whereas the lower amount would arise if only 40% of them made a claim: DWP (2012), paras 7.2 and 7.3.137 O’Brien (2015) at p.129. 138 Under the the Jobseeker’s Allowance (Habitual Residence) Amendment Regulations 2013 (SI 2013/3196).139 See the Jobseeker’s Allowance (Habitual Residence) Amendment Regulations 2014 (SI 2014/2735).

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was introduced within the equivalent rules relating to child benefit and tax credits for entrants on or after 1 July 2014.141

4.2.2. Limiting EEA migrants’ income-based JSA to a maximum duration As well as the above restriction, the government has progressively limited the total period of entitlement to income-based JSA for many claimants. The overall effect is that in most cases the maximum duration of benefit will now be six months for retained workers and three months for jobseekers.

First, from 1 January 2014,142 former workers becoming involuntarily unemployed (for example, due to redundancy) and seeking benefit while looking for work as a retained worker had to show that they had previously been employed for at least one year, were registered as a jobseeker and met two further conditions: ‘Condition A’, that they entered the UK in order to seek employment, or were present in the UK seeking employment after enjoying a right to reside as a jobseeker, worker, self-employed person, self-sufficient person or student; and ‘Condition B’, that they could provide evidence of searching for employment and having ‘a genuine chance of being engaged’.143 To continue to have retained worker status beyond six months they would have to provide ‘compelling evidence’ of continuing to seek employment and of having ‘a genuine chance of being engaged’ – the ‘compelling evidence’ test.144 The compelling evidence test is strict: the DWP expects there to be a definite offer of real work that is due to start within three months or evidence that the claimant’s employability has significantly increased (for example, because they have completed a vocational course) and they have a job interview lined up. No extension of the right to reside as a retained worker beyond six months is, in any event, possible if the claimant had not worked in the UK for 12 months before becoming unemployed.145

Jobseekers similarly had to meet conditions A and B and, if wishing to retain their right to reside status beyond 182 days (six months), to meet the ‘compelling evidence’ test.146 However, in July 2014 the government halved the time for which a jobseeker could have a right to reside, to 91 days (three months),147 running from the end of the initial three month period in the UK with an unconditional right of residence but no access to benefit (above). The effect of the change is that a person who enters the UK as a jobseeker for the first time would have an overall right of residence of only six months, but generally they would only get JSA for the second three months.

Further, complicated changes were also made regarding jobseekers or retained workers returning after time abroad.148 Those who held a right to reside in such a capacity for six months or more before their departure would, on returning, only have a right to reside as a 140 O’Brien (2015), p.113. O’Brien notes, however, that during those three months, contributory unemployment benefit may be exportable from the claimant’s national state.141 The Child Benefit and the Tax Credits (Residence) (Amendment) Regulations 2014 (SI 2014/1511).142 Via the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013 (SI 2013/3032).143 2006 Regulations, reg 6, as amended.144 Ibid reg 6(7). This was amended to a ‘continuous period of six months’ by the Immigration (European Economic Area) (Amendment) Regulations 2014 (SI 2014/1451): see below.145 2006 Regulations, reg.6(2)(ba) and (2A).146 Ibid reg.6(4)-(7).147 Immigration (European Economic Area) (Amendment) (No.3) Regulations 2014 (SI 2014/2761).148 SI 2014/1451 n.144 above.

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jobseeker. But if they had been away continuously for less than 12 months they would have to satisfy the ‘compelling evidence’ test (above) at the start of their claim. Furthermore, the 91 days maximum period for which they could hold the right to reside as a jobseeker would be reduced by the number of days they held such a right in the UK before they went away,149 a reform intended to limit the overall period of the right to reside by linking up two separate periods.150 If their absence from the UK had been for more than 12 months, the compelling evidence test would not be applied until 182 days (six months) into their claim.151

4.2.3. EEA nationals as workers or self-employed persons: a minimum earnings thresholdThe government decided that a more robust assessment of engagement in genuine and effective work should be adopted for the purposes of worker or self-employed status with a consequent right to reside. The idea was to judge such status in part with reference to the level of earnings enjoyed. It was part of an overall policy aim of capping welfare expenditure and reducing immigration ‘so our economy delivers for people who actively contribute and want to work hard and play by the rules.’152 In that sense, there was also a moralistic dimension to the policy, playing to notions of social responsibility and reciprocity that have long exerted a strong influence on UK welfare policy.

The new earning test was phased in between March and November 2014. A ‘two-tier’ approach was adopted.153 The first tier involves a ‘Minimum Earnings Threshold’, set at average gross earnings of at least £663 per month or £153 per week in 2014/15. The earnings have to be at that level throughout the three months prior to the claim for benefit. If this test is met the person is automatically considered to be in genuine and effective work and therefore to be a worker or self-employed person, as appropriate. The prescribed minimum is intended to match the minimum earnings threshold at which an employed person starts to be liable for Class 1 NI contributions. If the test is not satisfied, a looser second tier assessment is undertaken. According to the official guidance, it involves consideration of all of a claimant’s circumstances and the application of criteria derived from EU law on worker status, such as that the activities undertaken must be more than merely marginal or ancillary.154 Yet it seems likely that a more restrictive approach than EU law adopts is operating, which could render it susceptible to legal challenge.

4.2.4. Excluding EEA jobseekers from housing benefitThe screw was turned even more tightly in the area of housing benefit. The established position had been that EEA jobseekers could satisfy the right to reside test for housing benefit155 if receiving income support, income-based JSA or income-related employment and

149 2006 Regulations, reg 6(8)(b), as inserted by ibid.150 SI 2014/1451 n.144 above, whose explanatory note states that this ‘allows the six month period permitted by the Court of Justice in in Case C-292/89 Antonissen for jobseekers to look for work in the host Member State to be split across multiple occasions, but not exceeded’.151 2006 Regulations, reg 6(8)-(11), as amended.152 DWP (2014b). 153 See DWP, Decision Makers Guide (online resource) Part 3 (paras 07035-073058) at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/410800/dmgch0703.pdf [accessed 14 April 2015]. See also, in relation to housing benefit, the guidance for local authorities in Housing Benefit Circular HB/A3 2014 at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/284913/a3-2014.pdf [accessed 14 April 2015].154 Case C-53/81 D.M. Levin v Staatssecretaris van Justitie. 155 Housing Benefit Regulations 2006 (SI 2006/213), reg.10(1)-(3A).

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support allowance.156 As noted above, non-UK EEA jobseekers can secure entitlement to these benefits, albeit often within time constraints. However, from 1 April 2014, income-based JSA recipients were denied a right to reside for the purposes of a new claim for housing benefit.157 This also affected family members.158 The policy objective behind this clearly discriminatory reform159 was both to reduce public cost and discourage EEA nationals’ migration to the UK ‘with the primary intention of claiming benefits’.160 It was also argued that because workers, the self-employed and retained workers would still be eligible for housing benefit, the measure would ‘provide an increased work incentive to EEA jobseekers’.161 It was estimated that around 3,000 of the 300,000 EEA migrants who applied for a NINo in 2011/12 later claimed housing benefit as a jobseeker; overall annual savings through reduced benefit expenditure were therefore expected to be around £10 million over the next six years.162 Claimants who would be affected (one-third of them lived in London) were mostly single people or childless couples.163 A separate equality analysis calculated that under-35s would be over-represented among those affected.164

The Social Security Advisory Committee (SSAC), an independent statutory advisory body, doubted that the policy might dis-incentivise migration, since some EEA migrants believed that they would find work in the UK quite quickly.165 At the same time the reform was expected to cause accommodation difficulties for some EEA migrants, by compelling the acceptance of overcrowded or sub-standard accommodation, and increased homelessness.166 There were fears that letting by some private landlords to EEA migrants might be deterred by the risk of housing benefit denial to migrants who became unemployed.167 The government ruled out urgent mitigating action, believing that unemployed migrants at risk of destitution should simply ‘return home’. 168

4.2.5. Restricting access to universal credit It was entirely to be expected that the government would extend the more restrictive right to reside policy to the new UC scheme. This happened in June 2015,169 affecting jobseekers and their family members.170 The aim was to ‘protect the integrity of the benefit system and to ensure that any available benefit support is increasingly focused only on mobile EEA nationals who contribute to the UK through work’.171 UC is, however, not merely a benefit

156 Ibid, reg.10(3B)(k), excluding them from the class of ‘person from abroad’.157 Housing Benefit (Habitual Residence) Amendment Regulations 2014 (SI 2014/539), amending the Housing Benefit Regulations 2006 (n. 155 above).158 See DWP, Housing Benefit Circular A6/2014.159 See O’Brien (2015) at p.116, who argues that it may be directly discriminatory contrary to Articles 18 and 45 of the TFEU (mirroring, in terms of principle, (Case C-184/99) Grzelczyk) or alternatively indirectly discriminatory. 160 DWP (2014c) 161 Ibid.162 Ibid.163 Ibid.164 Bartlett (2014), p.43. 165 Secretary of State for Work and Pensions (2014), para 2.2.166 Ibid paras 2.7 and 2.17.167 ibid para 2.22. 168 Ibid, Secretary of State’s response, para 7. 169 Under the University Credit (EEA Jobseekers) Amendment Regulations 2015 (SI 2015/546).170 Amendment to reg.9 of the Universal Credit Regulations 2013 (SI 2013/376).171 DWP (2015a), para 7.2.

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for the unemployed. It is also replacing tax credits for the low paid. EEA nationals who are workers will retain a right to reside for UC purposes, as will those with retained worker status.172 Migrant jobseekers will be unable to access UC until they have commenced or undertaken work in the UK. The SSAC has highlighted the likelihood of hardship for ‘a significant number’ of migrant families who may previously have undertaken some work in the UK but do not have a qualifying right of residence – for example, as a retained worker.173

At the same time, however, a UC measure potentially in breach of EU law for discriminating against other Member State nationals174 was revoked.175 Many EEA jobseekers and retained workers who qualified for UC were subjected to the ‘all work requirements’, which comprise onerous activation conditions.176 The conditions were imposed on them in circumstances in which UK nationals would face ones that were less strict.177 Those circumstances included having a limited capability for work due to continuing ill health or being a carer of a child under the age of one. The conditions for UK nationals and EEA migrants have been aligned, a rare example of an improved position for migrants.

5. Restricting access to free healthcare under the NHS

Since its inception in 1948 the NHS has provided medical care without charge to UK residents. Provision to citizens irrespective of their ability to pay remains a core NHS principle.178 But some areas of provision are not free. For example, charging (subject to exemptions) is permitted for medications prescribed by doctors and for dental services, although only in England, since other parts of the UK have abolished it. In England, where over 80 per cent of the UK’s population reside, the NHS has undergone a range of complex reforms over the past decade based around a policy goal of increased competitiveness and efficiency in public health services involving a ‘regulated market’ with enhanced patient choice and more locally-tailored provision.179 Arrangements for the local commissioning of services under the Health and Social Care Act 2012 reflect this trend.180 Yet despite concern about a threat of healthcare privatisation, the public character of the NHS is said to be preserved.181

The NHS ‘is a residency based healthcare system’.182 Free NHS healthcare is not only available to resident British citizens but also migrants with ‘indefinite leave to remain’ if

172 Ibid para 7.3.173 Letter from Paul Gray, Chair of the Social Security Advisory Committee, to the Secretary of State for Work and Pensions, 4 March 2015, at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/410153/paul-gray-to-sec-of-state-040315-uc-eea-nationals.pdf [accessed 20 April 2015].174 Mesher et al (2014), pp.207-208.175 Universal Credit Regulations 2013 (SI 2013/376), reg.92, revoked by SI 2015/546 (n.169 above).176 Welfare Reform Act 2012 ss 15-18, 22 and 23.177 In ss 19-21 of the Welfare Reform Act 2012. A ‘work preparation requirement’ is ‘a requirement that a claimant take particular action specified by the Secretary of State for the purpose of making it more likely in the opinion of the Secretary of State that the claimant will obtain paid work (or more work or better-paid work)’: ibid s.16(1).178 Department of Health (2010), p.3. 179 Mays (2011) at p.185. 180 See, for a compelling account, Timmins (2012). 181 Department of Health (2010), p.3.182 Department of Health (2015), para 7.17.

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permanently settled in the UK. Most EEA nationals living in the UK will qualify for free NHS healthcare, using their European Health Insurance Card.183 Those living in the UK for five or more years have a permanent right of residence and so automatically qualify for free NHS care. Other EEA nationals, with a right to reside in the UK under EU law, will also qualify for free healthcare,184 but unless ordinarily resident in the UK they would need to fulfil exemption criteria in respect of charges (see below). Cross-border healthcare is facilitated within the EU.185 The freedom to access health services across national borders has cast the patient as a ‘consumer’ of health care within the EU,186 although the relevant EU Directive asserts that its ‘transposition… into national legislation and its application should not result in patients being encouraged to receive treatment outside their Member State of affiliation’.187 Asylum seekers, non-EEA nationals without rights to visit the UK and certain others may only receive free treatment if falling within specific exceptions.

The general rule is that persons ‘not ordinarily resident in Great Britain’ may be subjected to charges.188 Indeed, if services are provided to such persons, also defined as ‘overseas visitors’,189 the NHS must make a charge unless they are exempt (see below).190 There is freedom to calculate the charges at a commercial rate. The Department of Health (DoH) considers that there should be a ‘reasonable profit element’ to health charges for those from non-EEA countries.191 Such charges will now be calculated at 150% of the appropriate tariff for the service provided.192 This rate is intended to cover administrative costs and ensure a reasonable amount of profit.193 There will not, however, be commercial charging in respect of EEA visitors.194 As an incentive to pay charges, the immigration rules, as amended in 2011, prevent anyone owing £1,000 or more in NHS charges from being granted a further

183 See Creative Research (2013b), p.5.184 For provision of healthcare in an EEA state (other than the UK) to a person ordinarily resident in England the NHS has a duty to reimburse the cost to the provider on the basis set out in the National Health Service Act 2006 ss6A, 6B, 6BA and 6BB. 185 Indeed, as the Watts case (Case C-372/04, Yvonne Watts v Bedford Primary Care Trust, Secretary of State for Health (Grand Chamber)) illustrated, UK citizens also travel abroad for healthcare and possibly may be able to obtain reimbursement for cost incurred. 186 Hervey and McHale (2004), p.393. 187 Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare, recital (4).188 National Health Service Act 2006, s.175, as amended by the Immigration Act 2014, s.39. Case law indicates that being ‘ordinarily resident’ requires residence of sufficient continuity to be considered ‘settled’ rather than residence for a specific period: See in particular R v Barnet London Borough Council ex parte Nilish Shah [1983] 2 AC 309, HL.189 National Health Service (Charges to Overseas Visitors) Regulations 2015 (SI 2015/238), which came into force on 6 April 2015, reg.2(1).190 Ibid reg.3. These regulations apply to England only. Northern Ireland, Wales and Scotland have their own rules and separate guidance. In Scotland, for example, see the National Health Service (Charges to Overseas Visitors) (Scotland) Regulations 1989 (SI 1989/364), as amended.191 Department of Health (2015), para.4.2.192 SI 2015/238 n 189 above reg.7(3)-(12).193 Department of Health (2015), para.7.9.194 SI 2015/238 n.189 above reg.7(2) provides that, instead, the calculation will be based on the not for profit basis provided for by the National Health Service (Cross-Border Healthcare) Regulations 2013 (SI 2013/2269). These regulations were introduced to implement Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients' rights in cross-border healthcare which provides, inter alia, for reimbursement of costs.

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visa or an extension of permission to stay in the UK.195 The DoH has acknowledged that a combination of the charges for some overseas visitors and the immigration sanction for debt may give rise to indirect discrimination, but argues that ‘protecting the NHS as a provider of free treatment for the “people of England”’ is a ‘legitimate aim’.196 It says the NHS could not afford free treatment for UK citizens ‘if access were to be free by right to all comers’ or if visitors incurring charges do not pay.197

The exemptions to charges have been evolving. In 2011 they applied, first, to prescribed kinds of service or treatment, including accident and emergency services, family planning services, treatment for prescribed diseases (such as food poisoning, malaria, rabies and tetanus), and treatment for sexually transmitted diseases – but, in the case of HIV, only a diagnostic test and counselling.198 Secondly, they applied to overseas visitors in various categories, including those entering to work, to attend certain UK state-funded courses, or to take up permanent residence. EU citizens’ right to exemption is principally based on their having a right to receive the services under regulations made under Art 48 TFEU.199 Exemption has also arisen: under reciprocal agreements between prescribed states and the UK;200 where there are ‘exceptional humanitarian reasons’; for vulnerable persons such as children needing public care or victims of human trafficking; and for others, including diplomats, members of NATO forces, UK pensioners returning to the UK for long visits, and some UK residents returning after working overseas. In many cases family members of overseas visitors lawfully present in the UK have also attracted exemption.201

The current rules, introduced in April 2015,202 have removed the limitations to free treatment for HIV203 and added new exemptions for conditions caused by torture, female genital mutilation, domestic violence or sexual violence, provided in any of these cases the visitor did not travel to the UK specifically for this treatment. However, what the DoH termed the ‘very generous’ exemptions accorded to former residents and visitors without previous UK residence have been abolished,204 along with those for UK state retirement pension recipients living outside the EEA. The categories of vulnerable children with exemptions have been extended and there is a new exemption for failed asylum applicants vulnerable due to disability,205 which was introduced to remove unlawful discrimination

195 Home Office Immigration Rules 320(22) and 322. See Department of Health (2014).196 Department of Health (2011), p.3. 197 Ibid.198 In the National Health Service (Charges to Overseas Visitors) Regulations 2011 (SI 2011/1556), part 3 and schedule 1. Note a recent failed legal challenge to the official guidance on the implementation of the 2011 regulations, based on a breach of privacy in relation to the passing on of non-clinical information about non-resident patients by health bodies: W, X, Y and Z v Secretary of State for Health and others [2015] EWCA Civ 1034. 199 Also applicable to other EEA states and Switzerland. See Regulations 883/2004 and 987/09 (EU Member States) and Regulations (EEC) 1408/71 and 574/72 (Iceland, Liechtenstein, Norway and Switzerland). See further European Commission (2011).200 The list of states to which this applies is in schedule 2 to the regulations. The list includes Australia, Israel, New Zealand and Russia.201 SI 2011/1556 note 198 above reg.24, as substituted by the National Health Service (Charges to Overseas Visitors) Amendment Regulations 2012 (SI 2012/1586).202 SI 2015/238 n.189 above.203 Ibid schedule 1 contains the full list.204 Department of Health (2015), para.7.18.

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against them.206 The government has not added an exemption in respect of maternity services, due to evidence of ‘deliberate maternity health tourism through the short-term visit entry’ and a risk of it increasing significantly if free services were available.207

A review of the charging scheme, as it applied to non-EU nationals, occurred in 2012 in the light of government concerns that the system was overly generous and that the rules were not applied sufficiently consistently or rigorously.208 Commissioned research209 found that the numbers of temporary visitors and their families were having a marked impact on local services. Some people were probably travelling to the UK merely to access the health system (‘fly in, fly out’), although it was difficult to prove it in individual cases. ‘Health tourists’ – persons visiting in order to obtain free treatment to which they had no entitlement – were by their very nature ‘difficult to identify and then quantify because they are likely to make efforts to conceal their true eligibility status or are not flagged up in the system.’210 It was anyway difficult to obtain payments from them. Pressures on staff time and resources due to visitor access to the NHS were also considered problematic. Health tourism gave rise to an estimated additional annual cost of at least £70m, up to a possible maximum of £300m (although visitors gave rise to lower per capita health costs that UK residents).211 The government reiterated that the UK ‘cannot afford to provide free healthcare to the world.’212 The demand for NHS provision from people from outside the UK had apparently intensified.213 It was proposed that for non-EEA temporary migrants free access to the NHS should become more restricted and aligned with immigration status. An insurance scheme would be impractical for temporary visitors, so there should be an ‘immigration health surcharge’, subject to limited exemptions.214 Charges were proposed for some primary care services (although not consultations with a family doctor) and accident and emergency services.215

The residence test determining non-EEA migrants’ qualification for free treatment was tightened up, under the Immigration Act 2014.216 Also there is a new Visitor and Migrant Cost Recovery Programme, with an ‘immigration health surcharge’,217 introduced in April 2015.218 The surcharge is payable when applying for entry clearance or leave to remain in the UK for a limited period. It will normally be £150 for students or their dependants, but 205 Ones ‘in need of care and attention’ being accommodated by local authorities under the National Assistance Act 1948, s.21.206 This came in response to R (Cushnie) v Secretary of State for Health [2014] EWHC 3626 (Admin) where although a discrimination claim (based on Art.8 read with Art.14 ECHR) failed as the underlying discrimination was held not to be ‘manifestly without reasonable justification’, there was held to have been a failure in respect of the public sector equality duty because, when the 2011 Regulations were made, due regard was not given to the need to promote equality of opportunity for disabled people.207 Department of Health (2013) para.102.208 Department of Health (2013). See also, from the immigration perspective, Home Office (2013).209 Creative Research (2013a). 210 Ibid, para 35.211 Department of Health (2013), paras 35 and 73. 212 Ibid, para.68.213 See Prederi (2013).214 Department of Health (2013), paras 89-91.215 Ibid paras 106-113.216 Immigration Act 2014, s.39(1).217 Immigration Act 2014, s.38.218 The Immigration (Health Charge Order) 2015 (SI 2015/792).

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£200 in other cases, generally for each year of the maximum period of leave; but where the application relates to entry clearance or to leave outside the immigration rules, the relevant amount is multiplied by a factor of 2.5.219 Exemptions apply in some situations, such as for those claiming asylum under humanitarian protection or applying for entry clearance for a business visit.220 Estimated savings from surcharges and improvements to the imposition and recovery of charges are £500 million by 2017/18.221

The new immigration health surcharge and the introduction of commercial charging were clearly intended to reinforce the residency basis to free NHS treatment, a system which has become less generous to those from outside the EEA.

6. Conclusion

The UK government has been pursuing a policy aim of tackling the ‘welfare magnet’ and ‘health tourism’, despite the limited evidence of the former in particular.222 Yet, the restrictions which have been imposed, through complex technical changes to the legislative framework, are certainly wider in their impact. While most of the recent social security changes are directed at EEA jobseekers, worsening an already marginalised position while also creating a ‘precarious cliff-edge’ for those in work,223 they will clearly affect their other family members, particularly in the case of housing benefit. Yet the UK government perceives its approach to have been vindicated by the recent CJEU preliminary ruling in Jobcenter Berlin Neukölln v Alimanovic224 under which discrimination arising from the termination of a form of subsistence allowance (Abeitslosengeld II) to a Swede living in Germany was held to be covered by the derogation from equal treatment in Article 24(2) of Directive 3004/38 due to her jobseeker status. The reaction of the UK’s Secretary of State for Work and Pensions to Alimanovic was that it was ‘an excellent ruling that shows we are right to restrict benefits going to EU nationals who haven’t paid into to the system in this country’.225 In the case of the healthcare charging arrangements, we also see more strict conditions, although this time targeted more at temporary visitors from outside the EEA. Restrictions of these kinds are certainly designed to satisfy a perceived public demand for entitlement to be based on contribution, via the NI system and taxes. Migrants would not be able to meet such a test, but that does not negate an apparent sense of unfairness on the part of some UK citizens about any migrant entitlement to benefits.226

For so long as there is perceived to be political capital in restricting migrants’ benefit entitlement there is likely to be a sustained governmental interest in maintaining this policy regardless of the key EU principle of freedom of movement. Further restrictions have been proposed by the current Conservative government. The Prime Minister, David Cameron,

219 Ibid, paragraph 4 and schedule 1.220 Ibid, schedule 2.221 Department of Health (2015), para.7.5.222 HM Government (2014a), para 2.55.223 O’Brien (2015) at 112.224 Case C-67/14 (September 2015).225 Waterfield (2015).226 Migration and Communities Team (2014), p.67.

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advocates preventing EU migrants from being able to claim tax credits (and thus presumably universal credit while in work) during their first four years in the UK, a reform which would affect an estimated 300,000 people.227 He has reasserted this policy proposal in his official letter to the President of the European Council advocating ‘A New Settlement for the United Kingdom in a Reformed European Union’ in November 2015.228 However, while the fact that many migrants are in low paid work helps to explain why so many of their households receive working tax credit (there were approximately 560,000 as at March 2014),229 independent evidence suggests that tax credits do not draw migrants to the UK, that migrants discover their availability only after arrival and then claim them.230 Another recent proposal is that child benefit should also have a four-year residency condition and that even the short term entitlement to jobseeker benefits should be abolished for EU migrants.231

These policies were reportedly seen by the government as a ‘red line’ in its negotiations with the EU over the terms of the UK’s membership.232 In the absence of treaty change, however, the proposed restrictions to in-work benefits (i.e. tax credits) may infringe EU law on nationality discrimination grounds.233 The UK now appears likely to have defended successfully the European Commission’s infringement proceedings concerning the right to reside and its discriminatory effect, albeit only concerned with child benefit and child tax credit.234 Nevertheless, to overcome the obstacle of discrimination arising from the proposed four year residency test for tax credits (also proposed for housing benefit) the government has considered applying this test to all adult claimants, whether migrants or not, even though consequently UK nationals would be unable to secure entitlement if under 22.235 However, this would have carried considerable political risks and in any event the European Council, in response to the UK’s request, has recently agreed to amendment of EU secondary legislation to address the supposed benefit ‘pull-factor’ through a new ‘alert and safeguard mechanism that responds to situations of inflow of workers… of an exceptional magnitude over an extended period of time’,236 therefore a high threshold of exceptionality; and there is a question as to whether it could potentially be subject to European

227 See Wintour and Travis (2014). 228 The letter is at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/475679/Donald_Tusk_letter.pdf [accessed 17 December 2015].229 House of Commons Library, Statistics on migrants and benefits (SN06955), 27 November 2014, table 4a, at file:///C:/Users/mllssnsh/Downloads/SN06955%20(1).pdf [accessed 3 July 2015]. Just under half of the migrants receiving in-work tax credits were from EU countries. 230 See, for example, Fidler (2015) and Portes (2013).231 Conservative Party (2015), p.30.232 Morris N (2015).233 See further Morris M (2015), which presents alternative proposals for the reform of EU legislation. 234 European Commission v United Kingdom of Great Britain and Northern Ireland (C-308/14). Advocate General Cruz Villalón held that the indirect discrimination against non-UK EU nationals arising from the processing of claims (since they had the inconvenience of having the lawfulness of their residence checked) was justifiable in furtherance of the policy aimed at protecting public finances (at [84]). He also rejected the Commission’s argument that the UK’s right to reside requirement for claimants of child benefit and child tax credit to be treated as habitually resident involves the imposition of a residence condition not permitted by Regulation (EC) No 883/2004. The Advocate General stated that the Regulation required a Member State to grant benefits to those exercising their right of freedom of movement and residence in the Member State lawfully, as per Directive 2004/38 (at [77]).235 See Buchanan (2015). 236 European Council (2016), section D para 2(b).

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Parliamentary veto.237 The Council would be able to authorise a Member State to limit access to in-work benefits for up to four years from the commencement of employment, such authorisation to subsist for a maximum of seven years.238

Clearly the further development of UK policy in relation to social security for migrants will be affected by the UK’s planned referendum on EU membership. Assuming the UK remains a Member State, national policy will also be strongly influenced by whether the EU does make the changes necessary to authorise further nationally-imposed restrictions on migrant access to welfare regardless of the freedom of movement and equality cornerstones of EU citizenship.239 As things stand, the UK government seems prepared to push its policy to the permitted legal limits, through legislative reforms as complex as deemed necessary, while at the same time hoping to gain added scope for further withdrawal of support regardless of migrants’ residence or presence in the UK.

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