CBTM10070 - Residence and immigration: residence - right to reside in the UK

Child Benefit (General) Regulations 2006, regulations 23 and 27

The Treaty establishing the European Community Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004

The Immigration (European Economic Area) Regulations 2006

For claims made on or after 1 May 2004, regulations 23(4) and 27(3) of the Child Benefit (General) Regulations 2006, require the claimant to have a right to reside in the United Kingdom.

The following have a right to reside in the United Kingdom:

  • UK nationals
  • A ‘qualified person’
  • A family member of a ‘qualified person’
  • A person who has ceased activity as an employed person
  • A workseeker
  • A person who has a permanent right of residence
  • Person who has leave to enter or remain in the United Kingdom
  • Persons who have been granted exceptional or discretionary leave or humanitarian protection

There are special transitional rules for nationals of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia (A8 nationals) that acceded to the European Union on 1 May 2004 and for nationals of Bulgaria and Romania (A2 nationals) that acceded to the European Union on 1 January 2007.

UK nationals

All UK nationals have a right to reside in the United Kingdom.

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Qualified persons

A ‘qualified person’ is an EEA national or a Swiss national who is in the United Kingdom and by virtue of EU legislation is a

  • worker
  • self-employed person
  • self-sufficient person
  • retired person
  • student
  • self-employed person who has ceased activity
  • family member of a ‘qualified person’.

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A worker

Means a worker within the meaning of Article 39 of the Treaty establishing the European Community.

The European Court of Justice has interpreted the concept of worker as covering a person who:

  • undertakes genuine and effective work;
  • under the direction of someone else;
  • for which he is paid.

A person who is no longer working shall not cease to be treated as a worker if:

A worker does not cease to be a qualified person solely because:

  • he is temporarily incapable of work as a result of illness or accident; or
  • he is in duly recorded voluntarily unemployment after having been employed in the United Kingdom, provided that he is registered as a jobseeker with the relevant employment office and
    • he was employed for one year or more before becoming unemployed;
    • he has been unemployed for no more than six months; or
    • he can provide evidence that he is seeking employment in the United Kingdom and has a genuine chance of being engaged;

or

  • he is involuntary unemployed and has embarked on vocational training; or
  • he has voluntarily ceased working and embarked on vocational training that is related to his previous employment.

A person who has taken time off work in connection with childbirth or placement for adoption and is intending to return to their employment once the leave has expired remains a worker whilst they are on statutory leave from their employer.

A self-employed person means a person who establishes himself in order to pursue activity as a self-employed person in accordance with Article 43 of the Treaty establishing the European Community.

A person who is no longer in self-employment shall not cease to be treated as a self-employed person if he is temporarily unable to pursue his activity as a self-employed person as the result of an illness or accident.

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A self-sufficient person

A self-sufficient person means a person who has

  • sufficient resources for himself and his family members not to become a burden on the social assistance system of the United Kingdom during his period of residence; and
  • comprehensive sickness insurance cover for himself and his family members in the United Kingdom.

For the purposes of Child Benefit, ‘social assistance’ is Income Support, income-based Jobseeker’s Allowance or Pension Credit.

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A retired person

A retired person is a person who has been employed or self-employed

  • and in receipt of
    • An invalidity pension or early retirement pension or 
    • Old age benefits or 
    • Survivors benefits or 
  • a pension in respect of industrial accident or disease and 
  • is sufficient to avoid him and his family members becoming a burden on public funds and 
  • Is covered by comprehensive sickness insurance for him and his family members in respect of all risks in the United Kingdom.

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A student

A student means a person who

  • is enrolled in a recognised educational establishment in the United Kingdom for the principle purpose of following a vocational training course and 
  • assures the Secretary of State that he has and his family members have sufficient resources to avoid him becoming a burden on public funds and 
  • is covered by comprehensive sickness insurance for himself in the United Kingdom.

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A self-employed person who has ceased activity

A self-employed person who has ceased activity means a person who terminates self-employment

  • on or after state pension age and 
    • has been self-employed in the United Kingdom for at least 12 months and 
    • has resided continuously in the United Kingdom for more than three years or 
  • because of permanent incapacity for work and has resided continuously in the United Kingdom for more than two years or 
  • because of permanent incapacity for work due to an accident at work or occupational illness which entitles him to a pension payable wholly or partly by the State and has resided and been self-employed in the United Kingdom.

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A family member of a ‘qualified person’

For the purposes of those who have a right to reside as a self sufficient person, where the family members of the person concerned reside in the United Kingdom and their right to reside is dependent upon their being family members of that person

  • The requirement for that person to have sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence shall only be satisfied if his resources and those of his family members are sufficient to avoid him and his family members becoming such a burden;
  • The requirement for that person to have comprehensive sickness insurance cover in the United Kingdom shall only be satisfied if he and his family members have such cover.

For the purposes of those who have a right to reside as a student, where family members of the person concerned reside in the United Kingdom and their right to reside is dependent upon their being family members of that person, the requirement for that person to assure the Secretary of State that he has sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence shall only be satisfied if he assures the Secretary of State that his resources and those of the family members are sufficient to avoid him and the family members becoming such a burden.

For the purposes of the self-sufficient and students, the resources of the person concerned and, where applicable, any family members, are to be regarded as sufficient if they exceed the maximum level of resources which a United Kingdom national and his family members may possess if he is to become eligible for social assistance under the United Kingdom benefit system.

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Family member

Family member of a ‘qualified person’ in the case of a student means a spouse or civil partner and dependent children. In any other case family members means

  • spouse or his civil partner and descendents of the claimant, spouse or civil partner who are dependent on him/them or are under 21;
  • dependent relatives of the claimant or civil partner in the ascending line.

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A person who has ceased activity as an employed person

A person who has ceased activity as an employed person is an EEA national or Swiss national who was last employed in the member state of retirement.

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Workseekers

EEA nationals and Swiss nationals who are workseekers have a right to reside for six months or longer provided they are genuinely seeking work.

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A person who has a permanent right of residence

The following persons shall acquire the right to reside in the United Kingdom permanently

  • an EEA national or Swiss national who has resided in the United Kingdom and has had a right to reside here for a continuous period of five years;
  • a family member of an EEA national or Swiss national who is not himself an EEA national or Swiss national but who has resided in the United Kingdom with the EEA national or Swiss national who has a right to reside here for a continuous period of five years;
  • a worker or self-employed person who has ceased activity;
  • the family member of a worker or self-employed person where -
    • the worker or self-employed person has died;
    • the family member resided with him immediately before his death; and
    • the worker or self-employed person had resided continuously in the United Kingdom for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease;
  • a person who
    • has resided in the United Kingdom and has had a right to reside for a continuous period of five years; and
    • was at the end of that period, a family member who has retained the right of residence.

Once acquired, the right of permanent residence shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years.

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A person who has leave to enter or remain in the United Kingdom

Generally, non EEA or Swiss nationals, who do not have a right of abode, require leave to enter or remain in the United Kingdom. There are two kinds of leave:

  • limited leave to enter or remain (meaning limited in terms of time - (e.g. six months or four years); or
  • indefinite leave to enter or remain

A person with either leave to remain, including those who are on limited leave and have ‘no recourse to public funds’, are considered to have a right to reside in the United Kingdom.

People, who have limited leave, are generally excluded from Child Benefit because of their immigration status.

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Persons who have been granted exceptional leave or humanitarian leave or humanitarian protection

Persons who have been granted exceptional leave or humanitarian leave or humanitarian protection have a right to reside in the United Kingdom for Child Benefit purposes.

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Right to reside for nationals of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia (A8 nationals)

Treaty establishing the European Community; Regulation (EEC) 1612/68, Articles 1 to 6;

Council Directive 2004/38/EC; Treaty of Accession, Annexes V, VI, Viii, IX, XII, XDIII and XIV;

the Accession (Immigration and Worker) Regulations 2004, regulation 4.

Under a derogation from the Treaty of Amsterdam with these countries (there was no derogation in respect of Cyprus and Malta), countries that were member states of the EU before 1 May 2004 were allowed to restrict access to their labour markets for up to five years. In February 2004, the Government announced the terms on which workers from the A8 countries have access to the UK labour market, for the first 12 months of their presence in the UK, workers from those countries will generally need to register with the Home Office under the Worker Registration Scheme (WRS) to be allowed to work lawfully in the UK, with the exception of people who are self-employed and certain other groups (see below). Further details about the WRS can be obtained from Work Permits (UK) at the Home Office.

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A8 countries

The nationals of the following countries are affected by the derogation:

  • Czech Republic
  • Estonia
  • Hungary
  • Latvia
  • Lithuania
  • Poland
  • Slovakia
  • Slovenia

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The Workers Registration Scheme (WRS)

IMPORTANT NOTE: The WRS ended on 30 April 2011. This means:

  • A8 national claims are not required to be in registered employment if their award period starts on or after 1 May 2011.
  • Unless otherwise exempt, A8 national claims are required to be/have been in registered employment in respect of award periods prior to 1 May 2011. This applies even where the date of the decision to make the award is after 1 May 2011.

For all awards prior to 1 May 2011 the following groups of A8 nationals are required to register their employment with the WRS:

  • All A8 nationals who took up new employment in the UK on or after 1 May 2004;
  • Nationals of A8 countries who are dependents of A8 workers who arrived in the UK on or after 1 May 2004 and who wish to work in the UK;
  • Part-time workers who are nationals of A8 countries;
  • Students who are working; and
  • Short-term and temporary workers who are employed by a labour provider

An A8 national who is working in the United Kingdom and is required to register his employment with the WRS but does not do so, does not have a right to reside in the United Kingdom as a worker - but that does not necessarily mean they did not have a right to reside on other grounds. For example, provided the A8 national was deemed to be self sufficient, they would have a right to reside in the United Kingdom as a ‘qualified person’.

The following A8 nationals are not required to register with the WRS:

  • Self-employed workers;
  • A8 nationals who were working legally in the UK for 12 months or more in the employment they were in on 1 May 2004;
  • A8 nationals who were working legally in the UK and who stayed in the same job after 1 May 2004;
  • A8 nationals who were issued with leave to enter the UK before 1 May 2004 as a seasonal agricultural worker and took up employment on the Seasonal Agricultural Workers Scheme on or after that date;
  • A8 nationals who are providing services in the UK on behalf of an employer who is not establish in the UK;
  • A8 nationals who are family members of a Swiss or EEA national (other than one of the A8 countries or UK) who is working in the UK;
  • A8 nationals who are also citizens (dual nationals) of the UK, Switzerland or another EEA country, other than the A8 states;
  • A8 nationals who are family members of a Swiss or EEA national (other than one of the A8 countries or the UK) who is living in the UK as a student or a retired or a self-sufficient person; and
  • A8 nationals who were granted indefinite leave to enter or remain in the UK

A worker from one of the A8 countries who has worked legally for a period of 12 months or more without interruption (i.e. periods of unemployment must not total more than 30 days in any 12 month period) is entitled to full free movement rights under the treaty of Accession and is no longer required to register his or her employment.

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Workers

To have a right to reside as a worker, an A8 national who is required to register his employment with the WRS. When he ceases working for an authorised employer for any reason, including illness or involuntary unemployment, he ceases to have a right to reside as a worker.

However, an A8 national who has been in continuous registered employment for at least 12 months and has been extended full Treaty rights and will be considered a worker in the same way as other EEA nationals.

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Workseekers

An A8 national who is a workseeker, including those who have ceased to work for an authorised employer, and has not been extended full Treaty rights because of 12 months or more registered employment, does not have a right to reside as a workseeker as applied to other EEA nationals. Their right to reside depends on their being self-sufficient.

However, an A8 national who has been in continuous registered employment for at least 12 months before becoming unemployed and has been extended full Treaty rights, will have a right to reside as a workseeker, as applied to other EEA nationals.

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Right to reside for nationals of Bulgaria and Romania (A2 nationals)

The Treaty establishing the European Community

Regulation (EEC) 1612/68, Articles 1 to 6

Council Directive 2004/38/EC

Treaty of Accession on Bulgaria and Romania done in Luxembourg 25 April 2005 - Article 2

The Act of Accession - Annex VI and VII

The Accession (Immigration and Worker Authorization) Regulations 2006

Important Note: The Workers Authorisation Scheme (WAS) ended on 31 December 2013. This means:

  • A2 national claimants are not required to be in authorised employment if their award period starts on or after 1 January 2014
  • Unless otherwise exempt, A2 nationals were required to be in authorised employment in respect of any award periods prior to 1 January 2014. This applies even where the date of the decision to make the award is after 31 December 2013.

On 1 January 2007, Bulgaria and Romania joined the EU. Under a derogation from the Treaty of Amsterdam with these countries, member states that were members before 1 January 2007 were allowed to restrict access to their labour markets for up to five years. In October 2006, the Government announced the conditions under which A2 nationals would be allowed to work in the UK. From 1 January 2007, A2 nationals who want to take up employment in the UK will generally need to obtain a worker authorisation document. The document must be issued before the A2 national starts work.

This authorisation document is either:

  • A document issued before 1 January 2007 giving that person leave to enter or remain in the UK subject to the condition restricting his or her employment here to a particular employer or category of employment
  • A seasonal agricultural work card (from 1 January 2007, this scheme is restricted to A2 nationals)
  • An accession worker card issued in respect of an authorised category of employment for example employment in the sector based scheme or under a work permit or employment as an au pair, a domestic worker, a journalist, a teacher or language assistant, an overseas qualified nurse etc (this list is not exhaustive and is set out fully in the relevant Home Office regulations)

An A2 national who has worked legally and without interruption for a period of 12 months (gaps between work must not exceed 30 days in total) is entitled to full free movement rights and is no longer subject to worker authorisation.

A2 nationals not subject to the Worker Authorisation Scheme are:

  • the self-employed;
  • A2 nationals who have leave to enter or remain in the UK under the Immigration Act 1971 without restriction on their employment;
  • A2 nationals who were legally working in the UK on 31 December 2006 and had been legally working without interruption for 12 months at that date;
  • A2 nationals who were working legally and without interruption for a period of 12 months falling wholly or partly after 31 December 2006;
  • A2 nationals who are also citizens (dual nationals) of the UK, Switzerland or another EEA country (other than the A2 states);
  • A2 nationals who are the spouse or civil partner of a UK national;
  • A2 nationals with a permanent right of residence;
  • A2 nationals who are providing services in the UK on behalf of an employer who is not established in the UK (a posted worker);
  • The family members of an EEA or Swiss national who is working in the UK or living in the UK as a student, job-seeker or self-sufficient person (other than family members of an A2 national subject to worker authorisation); and
  • A2 nationals in possession of a registration certificate confirming unconditional access to the UK labour market.

A2 nationals, who are exercising EC Treaty rights as a student, a self-employed or self-sufficient person may, if they wish, seek a European Union Registration Certificate confirming their status. In particular, A2 students studying in the UK can work up to 20 hours per week providing they hold a registration certificate confirming they are an EEA national exercising their Treaty right as a student and are enrolled at an approved college on the Register of Education Providers maintained by the Department for Education and Skills.