2015 02 Migrants

Sunday 1 March 2015

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On 9 February 2015, the DWP published DMG Memo 2/15 – Extending GPoW Assessments to Stock EEA Nationals, which advises that the GPoW assessment will be extended to all remaining EEA nationals whose entitlement to JSA(IB) started prior to 1 January 2014. The Memo states that the DWP will identify those EEA nationals whose entitlement to income-based JSA began before January 2014 (the stock cases), and advise those claimants that a review of their right to reside in the UK and their continued entitlement to income-based JSA will be undertaken in three months’ time at a GPoW assessment interview. If the EEA jobseeker is unable to satisfy the GPoW assessment, then they will lose the right to reside as a ‘qualified person’ under the EEA 2006 Regulations and will no longer be entitled to receive income-based JSA. They will also lose entitlement to Housing Benefit. If the claimant has dependant children, they will also cease to be entitled to Child Benefit and Child Tax Credits.

For further details see article by Desmond Rutledge on Free Movement.

In Sanneh & Ors v Secretary of State for Work and Pensions [2015] EWCA Civ 49 (Arden, Elias Burnett LLJ), the Court of Appeal considers four cases which raised the common question of whether 'Zambrano carers', who are non-EU citizens responsible for the care of an EU citizen child, are entitled to non-contributory welfare benefits or housing assistance on the same basis as EU citizens lawfully resident in the UK. The Court’s conclusions in summary are listed below:

  • The Zambrano right creates an obligation on member states to take steps to ensure that the Zambrano carer and the dependent EU citizen are able to remain in the EU.
  • The Zambrano status arises as soon as the necessary conditions are met (‘the First Date’); there is no need to wait until the carer is destitute or forced to leave the EU (‘the Last Date’) (para 25 and 167-169). Hence, prior to the Amendment Regulations, Zambrano carers were entitled to access mainstream benefits (Sanneh) and housing assistance (Pryce).
  • Member states are under an obligation to pay Zambrano carers who are in need and unable to work an amount that will enable them to support themselves and their EU citizen child/children within the EU (para 26-27).
  • In the UK, section 17 of the Children Act 1989 meets the obligation of providing basic support for Zambrano carers (para 94, 98(iv) and 117).
  • Member states are not obliged to provide Zambrano carers with social assistance at the same level as that paid to EU citizens. The levels of social assistance made available to Zambrano carers in the UK post the Amending Regulations is not in breach of any requirement of EU law. Nor is it in breach of the Human Rights Act 1998 or the Equality Act 2010 (para 29-31).

Click here for the transcript. For further analysis see Free Movement.

In Blakesley v Secretary of State for Work and Pensions [2015] EWCA Civ 141 (Jackson, Kitchin and Floyd LLJ) the Court of Appeal considered whether article 23 of the Geneva Convention requires the UK government to make a retrospective payment of ‘public relief’ to successful asylum seekers representing the difference between previous asylum support and mainstream benefits. The Court concluded that while successful asylum seekers are to be paid the same welfare benefits as UK citizens from the date their refugee status is established, article 23 did not have any retrospective effect. Consequently, the former statutory regime which provided backdated payments of income support to persons who were found to be refugees went further than article 23 of the Geneva Convention required. Click here for the transcript.

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