Worker Registration Scheme to be abolished as of 1st May 2011
As of 1st May 2011 the Worker Registration Scheme will cease to exist. This is a scheme which requires nationals of A8 countries to be registered for 12 months before having access to public benefits. Nationals of A8 countries are citizens of the eight countries that accede to the EU on 1st May 2004 and consist of the following:
- The Czech Republic,
- Estonia,
- Hungary,
- Latvia,
- Lithuania,
- Poland,
- Slovakia,
- Slovenia
As a result of the new law, any A8 national, whether or not they have registered with the WRS, will have access to income-based jobseeker's allowance, housing benefit and council tax benefit by signing on as a jobseeker at the Jobcentre Plus and meeting the required criteria like those imposed on British jobseekers. As the law currently stands, A8 workers are unable to access benefits if they have not registered with the WRS or have not completed enough time in registered work in order to be able to access benefits however, in the light of the new law this is set to change. Fundamentally, the rights of A8 nationals will be akin those of other EEA nationals. Theoretically, this change could be enforced prior to 1st May 2011 however the Government will not be able to keep the current system in place after that date.
The current situation of EU migrants in the UK, in order to access benefits, includes a 'right to reside' test. This applies to Housing Benefit, Council Tax Benefit, Income Support, income-based Jobseeker's Allowance, income-related Employment and Support Allowance, Child Benefit, Child Tax Credit, Working Tax Credit and State Pension Credit as well as housing and homelessness assistance.
However, other benefits do not have this test and thus any migrant that meets the requirements imposed on British citizens should be able to freely access the following types of benefits:
Disability Living Allowance,
Maternity Allowance,
Contribution-based Jobseeker's
Allowance and contribution-based Employment and Support Allowance
With regards to National insurance contributions, of EU migrants, in the UK and social security contributions in other EU Member States, Jobcentre Plus is required to count the contributions made elsewhere in the UK as if they were NI contributions for the purpose of deciding whether the person has made sufficient contributions in order to get contribution based benefit. The law of the UK states that citizens of EU countries (hereon referred to as EEA nationals) have an entitlement to access benefits where they are:
-Jobseekers:
- EEA nationals seeking work in the UK and who meet the requirements imposed on British jobseekers are entitled to access income-based Jobseeker's Allowance as well as Housing Benefit and Council Tax Benefit. Furthermore, they are entitled to other benefits a British citizen in a similar position would receive (this does not include housing or homelessness assistance). EEA members are able to obtain these benefits on the basis of being a jobseeker for at least six months or longer where they are able to demonstrate that they are in continuous search of a job and have a genuine prospect of engaging in employment.
- Workers/self-employed:
- EEA national workers have entitlements to all in-work benefits (such as Housing Benefit) similar to those British citizens are entitled to. Further, they are able to claim housing and homelessness assistance.
-Ceased work/self-employment
- -EEA national workers who are temporarily unable to work due to illness or accident are able to access out-of-work benefits including income-related Employment and Support Allowance, as well as housing and homelessness assistance. The same is applicable where an EEA national worked for at least one year and is registered as a jobseeker with Jobcentre Plus, such a person is not required to rely on 'jobseeker' status (as stated above) as they remain to be considered as a 'worker' with the difference being that they continue to have access to benefits as well as housing and homelessness assistance.
- An EEA worker who has completed a fixed-term contract of less than one year is also able to maintain his 'worker' status in the event that they sign on at a Jobcentre Plus however; the 'worker' status may be reviewed after 6 months (In such a situation, the person concerned can always return to being a jobseeker as above).
- EEA migrants that cease work and enter vocational training related to their previous employment can retain their 'worker' status.
- Those who were made unemployed involuntarily and are in vocational training then they are not required to demonstrate a link between the vocational training and the last employment.
-Permanent residents
- EEA nationals are able to acquire permanent residence in the UK once they have resided 'legally' in the UK for a continuous period of five years. This is an automatic right and EEA nationals may wish to complete the EEA4 form and obtain permanent residence<span> </span>from the UK Border Agency however this is not required for accessing benefits. Such persons are entitled to all types of benefits similar to that of a British citizen.
- Where an EEA national has resided in the UK for two years and worked for one year and subsequently became permanently incapacitated, then that person can acquire permanent residence prior to accumulating the necessary five years.
- Please note that those whose permanent incapacity is a result of occupational injury, have no conditions as to the length of residence required. This also applies to some pensioners.
-Family members
- Family members of the above are considered being spouses, civil partners, children (and stepchildren) under 21, older dependent children and stepchildren and dependant relatives in the ascending line of the EEA national and or their spouse. These individuals need not be EEA nationals nor have current residence documentations.
- Extended family members (durable partners, cousins, aunts, nephews) who have been provided with residence documentation by the UK Border Agency are also able to access benefits. EEA nationals can usually access Child Benefit and Child Tax Credit regardless of their work status where they can demonstrate they are otherwise self-sufficient
Current rights of A8 nationals (until 1st May 2011)
Jobseekers: A8 nationals are prohibited to access benefits as jobseekers until they have completed, in compliance with the WRS, for 12 continuous months. They must register their work with the UK Border Agency, pay the relevant fee and inform the UK BA in the event of a change of employer within those 12 months.
Workers/self-employed:
- A8 nationals cannot access benefits as workers unless they are currently registered under the WRS (and inform the UK BA of a change of employment) or have successfully completed 12 months' work in compliance with the scheme.
Ceased work/self-employment
- Those who have not completed the required 12 months' work are unable to gain out-of-work benefits. In other words, an A8 national who has register their work and complied with the scheme is unable to obtain benefits now where they have not completed their 12 months' work even in the event of temporary unemployment due to illness or accident.
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Permanent residents
- A8 nationals who have permanent residence can receive benefits. However,at present, the authorities refuse to recognise an A8 worker who has worked at any time as permanently resident without compliance with the WRS.
Legality: There have been discussions as to the lawfulness of the restrictions placed on A8 nationals' access to benefits. The European Commission (its responsibility being to oversee the implementation of EU law) believe that some aspects of the restrictions are unlawful. The Commission has recently sent the UK Government a 'reasoned opinion' and although this is a confidential document, it seems that the Commission is challenging the UK in terms of the fact that A8 workers who have not completed 12 months of registered employment are excluded from the out-of-benefits where they become temporarily unable to work due to illness or accident. Infringement proceedings can be brought against the UK before the Court of Justice of the European Union where the Commission is not satisfied with the response from UK. Moreover, a legal challenge is currently under process against the application of the right-to-reside test to income-based JSA, income based ESA, income support and State Pension Credit concerning all EEA nationals with the argument being that EEA national who meet the 'actual habitual residence' test must be able to access these benefits regardless of whether or not they have the 'right to reside'. The reason for this is that those four benefits are classified as social security benefits in EU law and there is a prohibition on discrimination between British citizens and nationals of the EU with regards to such social security benefits.
These arguments were raised in the case of Patmalniece v Secretary for Work and Pensions at the Supreme Court in the UK, this case was heard in November and December 2010 and its judgement is expected soon. In addition to this, the Commission has sent a letter of formal notice to the UK as it believes that the restrictions on accessing the four benefits are unlawful. This step is taken prior issuing a 'reasoned opinion' which if the Commission find the response as unsatisfactory; they can send a reasoned opinion and take infringement proceedings against the UK.
1st May 2011
Essentially this date will be a day to remember for A8 nationals as the UK will not be permitted to treat A8 nationals different from non accession nationals (i.e. EU nationals. They will be able to access benefits on the same basis as other EEA nationals on the categories shown above.
It must be noted however that a minority of A8 nationals who are unable to work or sign on as jobseekers with the Jobcentre Plus (by failing to meet the requirements to demonstrate that they are seeking work) and who are unable to demonstrate that they have retained their worker status will face problems. Individuals may end up in such a situation where they are currently unable to seek work due to health reasons and have never completed 12 months' work under the WRS in the past. They may be able to argue that they can obtain benefits where they can establish permanent residency (where they have been in the UK for five years) however, proof of residence is required. Such proof includes demonstrating that they were in the UK as a worker, self-employed person, self-sufficient and or student at all times, where a person has limited proof they are likely to face problems and those who worked but failed to register under the WRS are unlikely to be recognised as permanent residents. Persons who have worked for any amount of time after 1st May 2011 will be able to maintain their worker status and access benefits and housing.
A2 nationals
These consist of Bulgarian and Romanian nationals, known as A2 Nationals and who face a set of restrictions which will remain in place beyond 1st May 2011. Persons under this category must obtain a worker authorisation (a work permit) if they wish to work unless they enjoy and exception. One of the easiest ways for A2 nationals to get access to benefits is to be self-employed as in such a situation there is no restrictions on self-employment for A2 nationals. A2 nationals are permitted to work in particular where they have permission to work in the UK in the past or where they are family members of British citizens or other EU nationals. A2 family members of A2 nationals who are self-employed, self-sufficient or students can enjoy the right to work and obtain residence documentation from the UK Border Agency as proof. These restrictions are set to remain in place until 1st January 2012 and may even continue for a longer period if there is a 'serious disturbance to the labour market'.
