Benefit rights for EU nationals are complex and it is therefore recommended that all EU nationals who are having difficulty in accessing their benefits should seek advice.
EU nationals are eligible for benefits if they have a right to reside. Rights to reside are available for workers and for jobseekers as well as for some other groups. Some people will also have a permanent right to reside and are then entitled to benefits in the same way as non EU nationals.
Newly arrived EU jobseekers have to wait 3 months before they can claim Income Based Job Seekers Allowance. They are then able to claim this for 91 days.
During 2015 a new test was introduced for these benefits to restrict entitlement to job seekers and workers with a temporary interruption in work who have a Genuine Prospect of Work. A recent legal case has been won and has limited the impact of this test. More information about this is given below. This test is applied at two stages
- After 91 days if the only right to reside is as a jobseeker
- For people who have previously worked and have a temporary interruption to being a worker if they have worked for 1 year this test is applied after they have been unemployed for 6 months.
The test is applied by staff working in the Job Centre. You will first be sent a notice explaining that your right to reside will be reviewed. It is usual that after 3 or 6 months unemployment (depending on the category you are in) you will be called in for an interview to establish whether you are considered to have a Genuine Prospect of Work.
This test is considered to be satisfied if you are found to have compelling evidence of a genuine prospect of employment. This is interpreted by DWP as meaning that you have:
- An offer of genuine and effective work and
- The work is due to start in the next 3 months.
It can also be satisfied if
- You can provide evidence that a change in your circumstances has given you a genuine prospect of employment and
- You are waiting for the outcome of job interviews.
In these circumstances an extension can be allowed until the job starts or for up to 2 months.
If you are not accepted as having a genuine prospect of work, DWP will give some consideration to other ways of acquiring a right to reside (although this process is not as thorough as is needed). If they are unable to identify an alternative right to reside they will stop payment of Income Based Job Seekers Allowance, Housing Benefit and Council Tax Support. Many EU nationals will find themselves in this position including some with children. Many are left with no disposable income and will face eviction.
If you are advised that the Genuine Prospect of Work test applies to you, it is important to seek advice as early in the process as possible and wherever possible before the Job Centre interview is arranged.
A recent legal case has looked at the definition of “genuine prospects of employment” and “compelling evidence” and has decided that this means only that you have to look for work and have a genuine chance of getting it. In other words this is the same test applied to every unemployed person. Following this decision the genuine prospect of work test has no legal validity. If it is still being applied to you, you should seek advice.
Alternative rights to reside
Many of those affected will be able to demonstrate that they have an alternative right to reside. The options available include
- Acquiring a permanent right to reside by having been in the UK for at least 5 years as a worker or self employed person or as a dependent family member.
- Having a derivative right to reside as the main carer of a child in mainstream education providing one of the parents has worked in the UK
- Being a dependent family member of a worker or self-employed person
- Being an extended family member of a worker or self-employed person who has attained a permanent right of residence
If you need help to establish if you have a right to reside through any other route it would be advisable to seek advice before you are invited to attend the interview.
Some benefits are outside the restrictions of the genuine prospects tests these include:
Personal Independence Payment
Disability Living Allowance
Contributory Job Seekers Allowance
Employment and Support Allowance (for a temporary period)
If you can claim any other benefits these are unlikely to provide you with sufficient income to live on but they will assist.
Getting a job
If you are able to secure employment or self-employment and are on low wages you will be able to claim benefits such as Housing Benefit and Tax Credits dependent on the level of your earnings.
It will be important to seek advice as early as possible in the process if you are considered not to have genuine prospects of employment. An advisor can help you with the mandatory reconsideration and appeals processes.