Category Archives: Excersising Treaty Rights in the United Kingdom

PDF: DWP Benefits Guidance – DMG – When Back in the UK

DWP benefits guidance for Singhers back in the UK

This document is official DWP guidance containing information that would be useful to those of you who have completed the Surinder Singh Route and are back in the UK and are having trouble convincing the DWP of your non-EU relative’s rights to claim benefits and of your rights as a returning Brit to skip the Habitual Residence Test and claim benefits. The guidance is titled “DMG Volume 2, Chapter 7, Part 3”. DMGs (Decision Makers’ Guides) are DWP guidelines that DWP staff must adhere to.
In the case of non-EU relatives having trouble claiming benefits, refer the DWP staff member to DMG 072900 in the guidance, which importantly says this:
“Note: if certain conditions are met, family members of British citizens have the same EU law rights to reside as they would if they were a family member of another EEA state (see DMG 073254 et seq for full details of the conditions). Thus where the conditions are satisfied and the British citizen would fall within the terms of DMG 072800 1. and 2, if they were a national of another EEA state, their family members should be treated in the same way as a family member described in DMG 072800 3. As such they will not be a “person from abroad” for the purposes of IS, JSA(IB) and ESA(IR). Nor will they be a person treated as not in GB for the purposes of SPC.”
What the above means is simply that if a British citizen has completed SS, then his non-EU relative should not be considered as a “person from abroad”, meaning that they are entitled to benefits without even needing to satisfy the Habitual Residence Test. Note that an EEA Family Permit or Certificate of Application are not strictly necessary for benefits, because all that matters is that the British sponsor has satisfied the conditions in Regulation 9 of the Immigration (EEA) Regulations i.e. has completed SS. However, if you have an EEA Family Permit, you can tell the DWP staff member that an EEA FP in fact proves that the British sponsor met the conditions of DMG 073254 i.e. completed SS.
In the case of returning Brits being refused benefits because of the habitual residence test, refer the DWP staff member to DMG 071351 – 071353 in the guidance, which says this:
“Resuming previous residence
071351 A person with habitual residence in the CTA who exercised his right to freedom of movement under European law and then returns to resume his residence in the CTA may be habitually resident immediately on his return.
071352 A JSA(IB), IS, ESA(IR) or SPC claimant who
1. was previously habitually resident in the CTA and
2. moved to live and work in another Member State and
3. returns to resume the previous habitual residence
is habitually resident immediately on arrival in the CTA.
071353 In deciding whether the claimant is resuming previous residence the DM should take account of the length and continuity of the previous residence in the CTA, his employment history in the other Member State and whether the claimant has maintained sufficient links with the previous residence to be said to be resuming it rather than commencing a new period of residence.
Example 1
The claimant, a UK national, lived and worked in UK before moving to Germany where he worked for several years. He was made redundant and having failed to find work in Germany for three months he returned to the UK where he had family and friends. On claiming JSA(IB) he stated that his intention was to find work and remain permanently in the UK. JSA was awarded because he was resuming a previous habitual residence.”

The UK's "Right to Rent" checks

So, in one of the UK’s schemes to make the “Optional” EEA2 Residence Card a requirement for a non-EEA Family Member of an EEA National, (amongst others) the UK have began implementing their “Right to Rent” checks.

Announced at the start of the month, the Right to Rent checks will be focusing on the West Midlands:

Immigration and Security Minister James Brokenshire today announced the new measures in the Immigration Act would be launched in Birmingham, Walsall, Sandwell, Dudley and Wolverhampton as part of a phased introduction across the country.

The new law will mean private landlords will have to check the right of prospective tenants to be in the country if they want to avoid potentially being fined up to £3,000.

I had already submitted my FOI Request (Right to Rent Checks) which received a response on the 5th September.  In relation to the three main questions:

Please outline how said Right to Rent checks will work with a non-EU spouse of an EEA National. Said persons are not required to hold any form of residence documentation. Said persons can enter the UK under Article 5 of the Free Movement directive without a visa. Said persons are not subject to immigration control. If said person holds nothing other than their passport (non-EU) and marriage certificate – what would the process be for said person to rent accomodation.

We then move onto Zambrano / Derivative Rights residents. As with EEA national family members – they do not require residence documentation. Would the process for confirming their right to rent be any different?

  1. Please outline how said Right to Rent checks will work with a non-EU spouse of an EEA National 
  2. what would the process be for said person to rent accommodation 
  3. Would the process for confirming their right to rent be any different?- Derivative cases. 

Home Office Response:

It is open, as now, for people who fall into these categories to obtain confirmation from the Home Office that they enjoy a right to reside in the UK under EU law.

Not only does this legislation breach EU law (Article 25(1)), but it also breaches UN Human Rights charters (Access to Housing).

Inaccurate information presented on Housing-Rights.info

I was referred to a www.Housing-Rights.info in a FOI Response from Worcester City Council. I noticed that the website actually presented inaccurate information. I therefore informed them of this inaccurate information, and requested that they correct the information.

To:
Subject: Incorrect information on Housing-rights.info website.

Dear Sir(s),

I write with reference to your website: www.housing-rights.info  – particularly http://www.housing-rights.info/02_6_EEA_family_members.php

I note that this website states the following:

Family members who are not themselves EEA nationals must apply for a residence permit within three months of arriving in the UK: the permit must be issued within six months of the application.

Applications for residence documentation in line with the Immigration (European Economic Area) Regulations 2006 is entirely optional. No application is required. This information is correctly advised by the Home Office in Chapter 2 of the European Operations Policy in Section 1.1:

https://www.gov.uk/government/publications/european-casework-instructions

As I am sure you are aware, Article 25(1) of the Citizen’s directive (2004/38/EC) which the 2006 regulations transpose into UK legislation outlines that application for any residence documentation cannot be a prerequite for a beneficiary to be granted their rights. This has infact been held binding in UK law in the High Court – in the case of Okuoimose v City Facilities Management (UK) Ltd UKEAT/0192/11/DA – outlining that rights can be established using other means of proof.

As you will see from my FOI request to Worcester City Council, all local authorities rely on your website for guidance. As your information is inaccurate, I would appreciate that you correct the information. https://www.whatdotheyknow.com/request/worc_housing_rights_eea_family

Yours truly,
Wayne Pearsall

Sample Letter to Accompany a National Insurance Number application

I previously noted the process of applying for a National Insurance Number (NINo). Find below a sample letter to accompany your application for a NINo if you do not currently have a residence card or certificate of application.

[ non EU name ]
[ EU Name ]
[ Postal Address ]

Date: [ Date ]

NINo Allocations
Department for Works and Pensions
[ Address ]

Dear Sirs,

Application for National Insurance Number

An application for a NINo for [Non EU Name] has been filed. Pursuant to Regulation 9 of the Immigration (European Economic Area) Regulations 2006, [non EU Name ] is the Family Member of an EEA National.

As outlined on page 4 of the Home Office’s Table of Fees (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/308633/fees-table-06-04-14.pdf) Applications for Residence Documentation under the Immigration (European Economic Area) Regulations 2006 are not mandatory.

In accordance with all caselaw relating to Surinder Singh (Case 370/90) – including the recent Case C-456/12 (O and B) [ Non EU’s Name ]’s status in the UK must not be treated any less favourably than that outlined within Directive 2004/38/EC.

Article 25(1) of said directive states:
1. Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.

The provision above has been held to be binding in law in the case of Okuoimose v City Facilities Management (UK) Ltd UKEAT/0192/11/DA – outlining that rights can be established using other means of proof. As I understand that [non EU Name]’s claim can be established with other proofs, I am supplying proof of residing in Ireland together, proof of being a [self] employed individual in Ireland, and proof of now residing within the UK together.

Yours,

[ non EU name ]
[ EU name]

Right to Vote: Non-EEA National Family Members

A Non-EEA National Family Member should be afforded all of the rights that a local citizen is afforded.  One of these rights is the Right to Vote!  A user on What Do They Know has requested information in regards to this right.

The Local Authority (Birmingham City Council) responded amazingly promptly (the next working day) with the following response:

A person’s eligibility to be added to the register for voting purposes, is based on their nationality, not marital status.

Only British, Commonwealth, Irish & European Union citizens are allowed to register and therefore to vote.

An Indian national can vote in all elections, because India is part of the Commonwealth.

This is immediately good news for all of the citizens of the Fifty-three countries which are members of The Commonwealth (list linked).

However the request has been further clarified by the user so as to include individuals that are not citizens of member states.  Logically the answer is very clear that persons admitted under Directive 2004/38/EC should be afforded the right to vote (even more so considering that citizens of India can vote as they are citizens of a Commonwealth country).

The Directive clearly outlines that individuals benefiting from the right of Free Movement should also benefit from Equal Treatment to local residents.

(20) In accordance with the prohibition of discrimination on grounds of nationality, all Union citizens and their family members residing in a Member State on the basis of this Directive should enjoy, in that Member State, equal treatment with nationals in areas covered by the Treaty, subject to such specific provisions as are expressly provided for in the Treaty and secondary law.

This is clearly outlined in Article 24 – Equal Treatment:

1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.

Also note: This section states “who have the right of residence” and it does not state “who hold a residence card”.  The  absence of a residence card issued in accordance with Article 10 (in the UK this would be the card issued once you have completed the EEA2 application) does not mean that you are not covered by Article 24 of Directive 2004/38/EC if you have rights that stem from the Directive.

 

Homeless Assistance in the UK

The law in the UK makes it an obligation of your local council to ensure that you have adequate accomodation.  This means that if you are legally homeless then your council must help you.

How much help your local council must give you depends on a number of facts:

  • Are you homeless through no fault of your own?
  • What is your level of need (Any disabilities, dependant children etc?)

You can check out if your council must give you emergency housing on Shelter’s Emergency Housing Rights Checker.

Legally Homeless

Legally Homeless is a term used by local council’s and government.

You may be legally homeless if:

  • you’ve no legal right to live in accommodation anywhere in the world
  • you can’t get into your home – eg your landlord has locked you out
  • it’s not reasonable to stay in your home – eg risk of violence or abuse
  • you’re forced to live apart from your family or people you normally live with because there’s no suitable accommodation for you
  • you’re living in very poor conditions – eg overcrowding

If you’re legally homeless, your council must provide you with help – this could range from giving advice to arranging accommodation for you.

The amount of help they give you will depend on things like:

  • if you became homeless through no fault of your own
  • if you’re eligible for assistance
  • if you’re in priority need

Eligibility for assistance

If you live permanently in the UK, you will usually be eligible for assistance. If you’re from abroad, you may not be eligible because of your immigration status.

Shelter’s emergency housing rights checker helps you work out if you’re eligible for assistance and what you’re entitled to.

Priority need

You’re in priority need if:

  • you or someone you live with is pregnant
  • ‘dependent children’ live with you (under 16s or under 19s if they’re studying full-time)
  • you’re ‘vulnerable‘, eg as a result of old age or disability
  • you’re homeless after a flood, fire or other disaster

You may be entitled to Housing Benefit to help with your housing costs.  If you are claiming Housing Benefit, ensure that you specifically request the local council to assess you for “Local Council Tax Reduction” as this is an entirely different benefit.

Shelter: The Housing and Homelessness Charity provide excellent advice and help to people.  If you have any further information requirements then do not hesitate to contact them.

Also, an additional piece of legislation may help if you have children:  Section 17 of The Childrens Act 1989 puts a duty of care on the local authority for children living in their area – regardless of their/their parents immigration status.  Section 17(6) specifically stating:

(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include [providing accommodation and] giving assistance in kind or  . . in cash.

 

I am in no way suggesting that people coming home go directly to their local councils.  Please try and ensure that you aren’t going to end up on the streets when you return home to the UK.  However, If you arrange to sleep on a mates sofa, you are still considered as homeless.

How To Apply For a National Insurance Number (NINo)

The local personal reference number in the United Kingdom is called a National Insurance Number (or NINo for short).  A NINO is usually in the format of LLNNNNNNL (where L represents a letter and N a number).

 

A national insurance number is used for pretty much everything from taxation, to applying for a driving licence.  Further information can be viewed here:

 

You can only obtain a NINO if you intend to do one of the following things:

  • Work
  • Become self employed
  • Claim state benefits (IE: Child Tax Credits, Child Benefit ETC)
  • Get a student loan

 

To apply for a National Insurance Number you need to arrange an  ‘Evidence of Identity’ interview for you or send you a postal application. If relevant, they will confirm the date, time and location of your interview and what information/documentation you need to support your application.  The documentation is usually:

  • A visa showing that you have valid leave to remain  (or documents that confirm this – IE: the same kind of documents which would be submitted in support of an EEA2/EEA Family Permit Application).
  • Proof of Identity (Passport, Driving Licence ETC)
  • Proof of Address (Bank Statements, and Utility Bills)

If you have the right to work in the UK (and as an EEA National / Family Member you do), you can telephone Jobcentre Plus on telephone: 0845 600 0643 to arrange to get them to begin the process of issuing a national insurance number. Lines are open Monday to Friday 8am to 6pm and are normally less busy before 9am. You can apply for your nino on a postal application.  However this would require sending off a number of documents.

 

If you can’t find your National Insurance Number – but already have one, you can ask HMRC to confirm it by:

  • completing and returning form CA5403 – Your National Insurance number
  • contacting the National Insurance Registrations Helpline on telephone 0300 200 3502 (lines open 8.30 am to 5.00 pm Monday to Friday). You will be asked some questions to confirm your identity. If you can answer these questions correctly HMRC will send  your National Insurance number by post. If you can not answer the questions you will need to complete form CA5403.

HMRC cannot confirm your National Insurance number by telephone. They will write to you instead.

 

Driving on an EU License / Exchanging an EU License for a GB Driving License

You can drive in Great Britain on a full, valid driving licence from another EU country until you’re 70, or for 3 years after becoming resident in Great Britain, whichever is longer.

You don’t have to exchange your licence, but follow these steps if you want to:

  • Order form D1 from DVLA.
  • Send the form, the £50 fee and any documents you need to (including your driving licence) to the address on the form.
  • You should get your new licence within 3 weeks.

Please note: You can only drive in Great Britain for 12 months if you got your EU licence by exchanging your non-EU licence.

Why would you wish to exchange your driving license?

There are a few reasons that you may wish to exchange your driving license for a UK License.  These might be making getting an International Driving Permit simpler or even getting cheaper car insurance quotes.

Internet Service Providers in the UK

So, like in Ireland, Three UK offer an All You Can Eat data package.  They have a number of quite impressive offers.

The current best offer is the One Plan.  You can currently get a 30 day rolling sim only contract for just £18.00 a month.  This includes the following:

  • 2,000 any network, any time minutes
  • 5,000 Three to Three minutes
  • 5,000 Text (SMS) Messages
  • All you can eat data package

 

I would personally prefer a fixed line – which would give better download speeds (IE: Fibre Broadband from Virgin or BT) but for some people, the waiting time to get internet might just be beneficial to take out a contract which gets you online the *same day*. (No waiting for a telephone line install.  No waiting two weeks for broadband activation.

Much like in Ireland (See: Which Mobile Network Should I use in Ireland) you can use an Android mobile as a WiFi hotspot / router.  There are also cheaper Sim Only 30 day plans (and even cheaper plans if you wish to commit to a lengthy contract).

So: What are download speeds like?  I just did this speed test from my laptop tethered via wifi to my Samsung Galaxy Ace mobile telephone (When I use my S3 to tether it is actually faster due to the improved hardware).

Three UK Broadband Speed Test Internet
Three UK Broadband Speed Test Internet

 

Other Internet Service Providers:

There are many other ISPs (Internet Service Providers) in the UK.  Obviously you can use pretty much any mobile network data package (but this can get expensive).  Alternatively, you can sign up to an ADSL service such as that offered from The Post Office, Orange (Everything Everywhere), ETC or even get Fibre Optic Broadband from BT/Virgin ETC.