Residence as a Condition for Social Security in the United Kingdom: A Critique of the UK Right to Reside Test for Accessing Benefits and How it is Applied in the Courts
| Date | 01 June 2011 |
| Author | Ruairi O'Neill |
| DOI | 10.1177/138826271101300202 |
| Published date | 01 June 2011 |
| Subject Matter | Article |
226 Intersentia
RESIDENCE AS A CONDITION FOR SOCIAL
SECURITY IN THE UNITED KINGDOM:
A CRITIQUE OF THE UK RIGHT TO RESIDE
TEST FOR ACCESSING BENEFITS AND
HOW IT IS APPLIED IN THE COURTS
R O’N*
Abstract
is article deals with the issues relating to the UK’s Worker Registration Scheme
for migrant workers from EU8 Member States and the ways in which the scheme
prevents EU8 nationals from accessing social bene ts that would otherwise be
available to EU migrant workers. Additionally, it considers the right to reside test,
introduced by the Accession Treaty derogations to free movement, which applies to
all persons seeking social bene ts in the UK, including whether or not the tes t ought
to be applied when applying Regulation 883/2004 on social security co-ordination.
e article concludes that the legislation enacted since 2004, and the judgments
of British courts inter preting the legislation, constitute an incorrect application of
European law, and a violation of the rights of EU migrant workers.
Keywords: Accession State nationa ls; derogations to free movement; European
ci ti z en sh ip ; E ur op e an mi g ra ti on ; E U8 ; h ab it ua l re si de nc e; in co me su pp or t ; R eg u la ti on
1408/71; Regulation 883/2004; right to reside; worker regist ration scheme
‘All that is gold does not glitter, not all those who wander are lost.’
1. INTRODUCTION
is article considers cer tain contentious aspects of the system t hat applies in the UK,
whereby European Union citizens ca n access non-contributory social bene ts, and
* British Law Cent re, University of Warsaw; Address: U l Nowy Swiat 69, 00–927 Warszawa, Pol and;
phone: +48 661 887 309; e-ma il: r.oneill@uw.edu.pl.
Residence as a Condit ion for Social Secur ity in the United Kingd om
European Jour nal of Social Secu rity, Volume 13 (2011), No. 2 227
how that system has been amended followi ng the 2004 enlargement of the European
Union, so that any individua l seeking bene t s in the UK must now comply both with
a habitual residence test and a right to reside test before becomi ng eligible. e article
looks at the rules as they were implemented, on what basis they were implemented,
and how they were interpreted at various levels of the British court system when
awarding access to social bene ts. It also considers the lawfu lness of the restrictions
placed on accession-state nationals’ access to bene ts; a pertinent issue given that the
Europea n Commiss ion has recent ly sent a ‘reason ed opinion’ to t he UK Govern ment,
which, although it is a con dential document, suggests that the Commission is
challenging t he UK rules on denying bene ts to those who have not completed the
Work er Regis trat ion S che me.1 roughout the article, reference will be made to the
non-contributor y bene t of income support, and to the 20 03 Accession Treaty of the
Republic of Poland, though it must be stated that the rules in force have been given
e ec t so as to cover the entire social secu rity system in the UK, and to a ll EU8 (and, as
will be shown, EU15) nationals resident in the UK .2
2. INCOME SUPPORT AND THE HABITUAL RESIDENCE
TEST
Income support is a social s ecurity bene t paid to people who are not in fu ll-time work
(who work fewer than 16 hours per week), whose income falls below a prescribed level.
is bene t, a long with state pension credit, i ncome-based allowa nce for jobseekers and
dis abi lit y li vin g al lowa nce, are lis ted b y the UK i n An nex X of Re gul ati on 883 /20 04 on
the co-ordination of socia l security systems withi n the European Union which deals
with ‘speci al non-contributor y bene ts’: bene ts which are awarded in the Member
State of residence irrespective of the i ndividual’s previous ta x contributions. Such
bene ts are t reated di erently f rom other social security prov isions in the application
of the Regulation as t hey are not subject to the principle of exportabi lity, and are
thus awarded in accordance wit h Article 70 of the Regulat ion, which states that the
1 e seriousness of the i ssue, and the potentially sy stemic nature of the violation, is ev ident from
the actions of t he Commission, irrespect ive of the fact that the Worker Regist ration Scheme, as it
applies to EU8 national s, is set to expire in May 2011.
2 e only exception bein g toward Malta and Cy prus, again st whom no comparable derogation s were
enforced in relation to access to the employment market and social security bene ts in the UK.
In response to a quest ion in the House of Lords of 24 Februar y 2004, the Parl iamentary Under-
Secretar y of State at the Department for Work and Pensions, B aroness Hollis of Heigham, re plied:
‘[My ] Lo rd s, w e ha ve m ad e a d ec isi on t ha t C yp ru s an d M alt a w ou ld b e ex cl ude d f rom th is d er oga ti on
on three ground s. First, they a re very small − I th ink the populat ion of Malta is about 400,000.
Secondly, their level of pro sperity is broadly simi lar to our own, only a litt le below it; and, thirdly,
as the noble Lord has ack nowledged, we have historic c onnections to those count ries.’ Available on
Hansard, at http://www.publications.parliament.uk/pa/ld20 0304/ldhansrd/vo040224/text/40224-
01.htm, at Column 108.
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