What does it mean to be an EEA citizen?

I’m a British citizen. If I want to go on holiday to, say, Spain, I can just pick up my passport and hop on a plane. I don’t have to apply for a visa, and I know I’ll be able to get through passport control at Malaga without any problems: I won’t, for example, need to tell them how long I’m planning to stay. I’m also entitled to free health care if I’ve remembered to apply for a free EHIC card (although I would be wise to take out travel insurance as well). And finally, if I decide to stay longer, and get a job working at a bar (say), that’s perfectly legal.

The reason I can do all of this is that, as a citizen of the UK, I have the right to move around the EEA and stay in other EEA countries if I want. The right to stay in other EEA countries is called the right to reside.

The same rights would apply to a Spanish citizen visiting the UK.

These rights are based on the Treaty of Rome, which set up the EU in the first place, although as these were rather vague they have now been made clearer in 2004 by a document called a directive (Directive 2004/38/EC).

The right to reside sounds easy to understand: if you’re European, you would expect to be able to live and work in other EEA countries, if you chose. But it’s not quite that good. You only have the right to reside in another European country if you fit one or more of the following categories:

1. You don’t need financial help from the country you’re going to.
2. You are working for an employer
3. You are looking for work.
4. You are self-employed.
5. You’ve been living in the UK, and fitted one of the other categories, for long enough.
6. You are responsible for a child in education (but only in some circumstances)
7. You don't fit any of the categories above, but you are a family member of another EEA citizen who does
   

If you don't fit any of these categories, you're stuck: for example, if you are a single parent of a child under 5 or are too ill to work, and are not willing or able to look for work you will normally not have the right to reside.

How does this affect entitlement to benefits?

The right to reside rule affects the following benefits:

• All income based benefits: in other words income based Employment and Support Allowance, income based Jobseeker's Allowance, Income Support, Pension Credit, Tax Credits*, Universal Credit, Housing Benefit, and Council Tax Support.
• Child Benefit

*In practice there’s no problem with Working Tax Credit because you need to be working full time to get Working Tax Credit anyway. I say more about this further down.

Why does it matter whether you have the right to reside or not? Well, since 2004, if you don’t have the right to reside in the UK you don’t have the right to income based benefits or Child Benefit.

This is really important, so I’ll repeat it…

If you don’t have the right to reside in the UK you don’t have the right to income based benefits or Child Benefit.

Even if you do have the right to reside in the UK, you may still have problems getting these benefits straight away: There are rules that say, in effect, that until the government is satisfied that you really have set up home here permanently it does not see why you should get benefit. This is called 'the habitual residence test'. (Actually the right to reside rules are found 'inside' the habitual residence rules, but in practice it is easiest to treat them as two separate things.) It is very unusual for the DWP to accept that someone is habitually resident from day one: on the other hand it is also very unusual for them not to accept someone as habitually resident after three months from when you arrive. In general, the more evidence they have that you plan to stay the shorter you will need to wait. However, since January 2014, a change to the habitual residence rules means that if you are trying to claim income based Jobseeker's Allowance you will not be entitled to it unless you have been living in the UK (or the other common travel area countries: Ireland, the Channel Islands, etc) for at least three months.

So let’s look at the categories of people who have the right to reside again, and go on to study each one in detail. Click on any of them to jump directly to it.

1. You don’t need financial help from the country you’re going to.
2. You are working for an employer.
3. You are looking for work.
4. You are self-employed.
5. You’ve been living in the UK, and fitted one of the other categories, for long enough.
6. You are responsible for a child in education (but only in some circumstances)
7. You don't fit any of the categories above, but you are a family member of another EEA citizen who does (this link takes you to the page on family members)

1. You don’t need financial help from the country you’re going to

This is obviously useless for benefits purposes. If you claim income based benefits, you are asking the government for financial help: by asking for help you show that you’re not entitled to help!

To put it another way, European law requires the British government to let EEA nationals live in the UK provided they can look after themselves.

2. You are working for an employer

This is a very important category. If you are working for an employer European law is very clear that you have the right to reside in the UK. The British government can’t get round this. And so if you are a worker you are entitled to income based benefits (assuming you satisfy all the usual rules, of course).

Pilar is from Spain. She is single, and has no children. She has come to the UK to work, and has found employment in a bar: she works there 30 hours a week. She also rents a flat. Because she is a worker she is entitled to Housing Benefit and Council Tax Support, assuming she meets all the normal rules.

Here’s some questions you might ask, having read that example:

• How many hours would be enough? This is a good question, but unfortunately there’s no clear answer. A part-time job of 16 hours a week would probably be OK, and working for an hour each week is almost certainly not OK, but it’s impossible to say exactly where the line should be drawn.
• Recent advice to DWP staff (now found in the Decision Makers' Guide (paragraphs 073038 onwards))has been some help: this says that if you have been earning more than something called the 'minimum earnings threshold' (currently £155 per week) for three months, you should automatically be treated as a worker.
  
• What happens if I become ill? If you’re still employed, and getting sick pay, it’s easy: you’re still a worker. If your employer has finished you, it’s more complicated. The law says that if you’re temporarily unable to work because of illness or injury you are still a worker: the trouble is that what counts as ‘temporarily unable to work’ isn’t clear.
• What happens if I become unemployed? The rules on this are incredibly complicated, and have been tightened up recently, but the short answer is that you need to sign on for Jobseeker's Allowance: look at the section on looking for work for more information.
• What happens if I become pregnant? Again, if your employer is keeping you on, and you’re on maternity leave, you’re still a worker. If you are no longer employed it’s much trickier. However, a recent European Court decision has given some help: if you stop working in the late stages of pregnancy (i.e. 11 weeks or fewer before the due date) and intend to be back at work by 15 weeks after the baby is born, you should still be classed as a worker, until you get to the 15 week point. Once you get to the 15 week point you will either have to be back at work or find another option.
  
• What happens if I was working, but can’t work any more? Generally you’re in trouble if this happens. You’ll no longer be a worker so will no longer have the right to reside. But there are some exceptions, and here’s two important ones:
• If you’ve been in the UK for more than 3 years, and worked for at least 1 year, and you’ve either reached pension age or been given early retirement;
• In some circumstances, if you become permanently incapable of work.

As you can see, this can get very complicated very quickly. If any of these questions seem to apply to you it’s very important to get specialist advice

Note that in practice there’s no problem with Working Tax Credit: this is because to get Working Tax Credit you have to be working at least 16 hours per week anyway. In other words if you weren’t working enough to have the right to reside you wouldn’t be working enough to get Working Tax Credit even if you were British.

3. You are looking for work

This is especially complicated and confusing: I've done my best to make it make sense, but buckle up: you're in for a bumpy ride!

However, I am first going to summarise how things are. You may want to have a look at the box below and then read no further. However I recommend that you do read on, if you can.

A very brief summary of the situation facing EEA citizens in the UK who are looking for work. You will not normally be entitled to Jobseeker's Allowance during your first three months in the UK. If you've been working in the UK, and this work has just ended, you will probably be able to get Jobseeker's Allowance, for six months. You should be entitled to Child Benefit, and Child Tax Credit if you have children, and Housing Benefit if you rent your home. It is unlikely that you will be able to get Jobseeker's Allowance, or any of the other benefits, for more than 6 months. If you haven't been working in the UK, but have come here to work, you will be entitled to Jobseeker's Allowance for 91 days. You will be entitled to Child Benefit, and Child Tax Credit if you have children, but not Housing Benefit. It is unlikely that you will be able to get Jobseeker's Allowance, or any of the other benefits, for more than 91 days. If you've been working in the UK, but it ended a while ago, you're probably going to be in the same position as someone who has never worked in the UK.

Now let's look at things in more detail.

To have any chance of understanding all this, we need to start with how European law treats people from other EEA countries who are looking for work in the UK. This is because British law has to fit into this, although whether it really does is an interesting question, as we shall see later.

This is what European law says about workers and work seekers who are looking for work: If you have been working in the UK, but have lost your job, and you are registered as jobseeker with a 'government office' you are still, in effect, a worker, and therefore have the right to reside.The technical name for you is now a retained worker. If you have worked in the UK for at least a year the EU places no time limit on how long you can have this right. If you have been working in the UK for less than a year, the EU requires members states to give you this right for at least six months, but does not require them to give you this right for longer than this. After this it is as though you have never worked in the UK at all. If you have never worked in the UK, European law says that you still have the right to be here if you are looking for work, but it's much vaguer about exactly what this means. Although the government calls these people job seekers, I am going to refer to these people as work seekers on this page to try to reduce confusion with other uses of 'job-seeker'. (If you want to check out these rules for yourself, I have put them in my page of "abroad-sources")

The British government has to take this all, and put it into British law: it can't take away any rights given to people by the European law, but it can 'interpret' any uncertainties in a way that suits it.

It won't surprise you to know that, for people who have worked in the UK for less than a year, British law gives them retained workers status for six months: the minimum European law allows.

I'll now take you through the process, step by step.

Suppose you want to get a job and apply for benefit in the meantime.

• You might have just lost your job, and want to find another (you're a retained worker).
  
• Or you haven't worked at all in the UK yet, but want to find a job (you're a work seeker).
  
• Or, you were a retained worker in the past, but aren't any more, possibly because your job ended a while ago, and you have only just started to claim benefit (you're a work seeker).

(Actually, UK law uses the name 'job seeker' rather than 'work seeker', but neither phrase appears in European law, so I've used the latter name to avoid confusion with other uses of 'job seeker'.)

Whichever of these applies to you, you contact the Jobcentre Plus as usual, to claim Jobseeker's Allowance (note: you will not, at present, be able to claim Universal Credit).

Note: if you are a retained worker you could, in theory, claim Income Support, income based Employment and Support Allowance, or Pension Credit, instead of Jobseeker's Allowance. You would still have to say you are looking for work, so this doesn't make sense for most people. However it might make sense if you were too old to get Jobseeker's Allowance. If you are in this position you should seek advice.

You have to show that provide evidence that you are seeking employment and that you have a genuine chance of being engaged (as far as I can tell, in practice all you have to do is what you would normally have to do to get Jobseeker's Allowance anyway).

You also have to show that:

• Either you came to the UK to look for work,
  
• Or you claim benefit immediately after you had another type of right to reside .

Normally - though not always - the first blob applies to work seekers, and the second blob applies to retained workers.

Note the 'immediately after' phrase, though. This means that if you didn't come to the UK to look for work, and you lose the right to reside, for whatever reason, you will not be able to get benefit as a retained worker or work seeker unless you claim straight away. European law doesn't require this, so it looks like this UK law isn't, er, lawful.

But here's the big problem.

This only works for six months. After this, you can only carry on getting Jobseeker's Allowance if you can give them compelling evidence that you are continuing to seek employment and compelling evidence that you have a genuine chance of being getting a job.

At this point you're in trouble. To satisfy the 'compelling evidence' test you will generally have to have been given a firm job offer, or be waiting for the results of a job interview (and not always even then).

(This six month limit doesn't exist in European law. Yes, it allows governments to restrict retained worker status to six months if people have worked less than a year, but it doesn't say you can't be a work seeker after that. And it places no restrictions on how long people can be retained workers if they have worked for more than a year. This restriction, then, also seems to be unlawful.)

I'd better make the consequences of this clear...

You will normally only be able to get Jobseeker's Allowance for six months.

In fact, it's even worse than that, if you're a work seeker, as opposed to a retained worker. For two reasons.

1. For work seekers, the six months is actually only 91 days (i.e. about three months). This is because everyone from the EEA gets three months initial right of residence, and these three months are now counted towards the six months total (even though you can't actually get Jobseeker's Allowance during this time). Did you follow that?
2. The 91 days is 91 days in total. So, if you are on benefit as a jobseeker for 50 days, then get a job which lasts for a year, then lose that job, you can normally only get benefit for 41 days before you need to show them 'compelling evidence'. This only gets reset if you are out of the UK for more than a year.
   

I'd better make that clear, too...

If you're a work seeker, you will normally only be able to get Jobseeker's Allowance for 91 days. In total.

And there's two other problems if you're a work seeker, and not a retained worker...

If you're a work seeker, you are not entitled to Housing Benefit.

You will not be entitled to Child Benefit or Child Tax Credit at all if you are a work seeker for the first three months after your arrival in the UK. You might think this doesn't make any difference, as you can't now get income-based Jobseeker's Allowance for the first three months anyway. However, until this new restriction to Child Benefit and Child Tax Credit came into effect you could sign-on as a jobseeker, and even though you wouldn't actually be getting any Jobseeker's Allowance you would be able to get Child Benefit and Child Tax Credit. But now you can't.

4. You are self-employed

Like employed workers, self-employed people have the right to reside, and so are able to get income based benefits.

Your self-employment has to be ‘genuine and effective’. So if you are a plumber, and have been working for a while, you should be fine. But if you’re an author, and have been working for ages but haven’t sold (or, in fact, finished) any novels, it’s very unlikely that the government will accept that you are self-employed. This means it’s very important that you keep any evidence of income, expenses, and work you have done.

If you are just setting yourself up in business, you will need to have evidence of this: for example, evidence of registering as self-employed with Her Majesty’s Revenue & Customs may help.

If you become ill and so aren’t able to do any work for a while, you should still be treated as self-employed for a while, but it’s not possible to be clear about how long this should be.

5. You’ve been in the UK for at least five years, and fitted one of the other categories for all that time.

This is a really important category. European law says that if you’re an citizen of an EEA country, and you’ve been in another EU country legally for long enough, you now have a permanent right to reside there.

For most people 'long enough' means at least five years.

Some advice sources say that the category of jobseeker does not count. I think I disagree. The way the law is written makes it clear that time spent as a jobseeker does count towards the five years, and the guide* that DWP decision makers use confirms this. In other words, if you came to the UK in 2005, worked for a year, and were then on Jobseeker's Allowance for four more years, you should have a permanent right of residence. (If there's anyone out there who disagrees with me, or has experience where this hasn't worked, please contact me!) *paragraph 071243

• Remember that this won’t work unless you have fitted into one, or more than one, of the other categories for the whole of that 5 years. The five years has to be one continuous block, but if you are out of the UK no more than 6 months a year in total (and sometimes more) they will not make you start all over again.
  
• Although it’s not compulsory it’s a good idea, when you reach the five years stage, to apply for documents confirming that you now have a permanent right of residence. These are available from the Home Office: www.ukba.homeoffice.gov.uk/eucitizens/documents-eea-nationals/applying/
• Once you have a permanent right to reside you don’t have to fit any of these categories anymore: as far as benefits are concerned you have all the same rights as a British citizen.
• You can only lose the permanent right to reside if you’re out of the UK for 2 or more years, or if the government thinks you are (basically) a threat to our society and wants you out of the country.

Some people can get a permanent right to reside in the UK even if they haven't been in the UK for five years. Here are the two main ones: If you’ve been in the UK for more than 3 years, and worked for at least 1 year, and you’ve either reached pension age or been given early retirement; In some circumstances, if you become permanently incapable of work.

Remember Mohammed from the earlier example. If he had been in the UK for three or more years and had worked for at least one year before retiring he shouldn't have any problems, as he would have acquired a permanent right of residence

6. You are responsible for a child in education

If you are the main person looking after a child who is in school, you have the right to reside, but only if, in the past, the child was in the UK while one of their parents was working in the UK as an EEA citizen.

You might be both people. In other words, you might have been working in the UK in the past, while your child was also in the UK, but now you're not working any more. In this case, although you don't have the right to reside as a worker you do have the right to reside as the main carer of your child.

Or the worker might be someone else. Perhaps you came as a couple, and your partner worked, but now they have left you and your child and gone back to (say) France. You have the right to reside as the main carer of your child.

Note:

• The child must be in school, not pre-school;
• It doesn't matter if you're one of the children's parents or not;
• It doesn't matter if the EEA worker is still in the UK or not, or even alive;
• It doesn't matter what your nationality is.

What about other benefits?

Contribution based benefits

(contribution based Employment and Support Allowance, contribution based Jobseeker's Allowance, contribution based Universal Credit, and state retirement pensions)

There are no restrictions to these benefits if you’re from another EEA country. The only problem is that to be entitled to them you need to have been paid and credited enough national insurance contributions.

This sounds serious. If you've only been in the UK a short time you won't have had the chance to accumulate enough contributions. But notice that in the last paragraph I didn't say British contributions. EU rules say that contributions paid in one EEA state should count towards satisfying the requirements for benefits claimed in another EEA state. This can be messy in practice: if you are refused a contribution based benefit and you think you satisfy the conditions because of contributions made elsewhere you may need to seek specialist advice.

Disability Living Allowance, Attendance Allowance, Personal Independence Payment, and Carer’s Allowance

The right to reside rules do not affect these benefits, but there are two problems:

• One is called the past presence test. You must have been in the UK for at least 104 weeks in the 156 weeks before you make your claim. In effect, therefore, you cannot normally get any of these benefits until you have been in the UK for 2 years.
• The other is called the habitual residence test (as discussed above). The rule says, in effect, that until the government is satisfied that you really have set up home here permanently it does not see why you should get benefit.

In practice, though, it’s generally only going to be the past presence test that’s a problem, as it would be very unusual for the government not to accept that your home was here if you’d already been here for 2 years.



 TOP OF PAGE