Immigrants’ benefits: a complicated system explained

When the UK ratified the 1954 UN convention relating to the status of stateless persons in 1954, it entered a reservation explaining that its (new) National Health Service (Amendment) Act 1949 contains powers for charges to be made to persons not “ordinarily resident” in the UK. It explained that while those powers had not been exercised

“..the Government of the United Kingdom, while prepared in the future, as in the past, to give the most sympathetic consideration to the situation of stateless persons, find it necessary to make reservation to sub-paragraph (b) of Article 24.”

Welfare entitlements are generally given greater prominence in discussions of migration than income that might be earned from working.

It is not uncommon to hear calls for entitlements migrants have never had to be withdrawn from them. Entitlements of migrants to health, education, housing etc are most often discussed, at local and national level, in terms that posit migrants’ entitlements to those resources as the explanation, and the complete explanation, of any shortfall. Welfare entitlements are generally given greater prominence in discussions of migration than income that might be earned from working.

Complicated system

Some things are a constant: the laws of the land, civil and criminal, apply to all, along with bye-laws, rules and regulations etc. The state’s obligation to protect children at risk of abuse and harm, for example, applies to all children within the jurisdiction. A parent, whatever their immigration status, is under a duty to send their child to school.

Entitlements, to healthcare, to benefits etc differ depending on which category of immigration and asylum law a person fits (worker; refugee; spouse; student etc). In particular, entitlements of European Economic Area (EEA) nationals and their family members differ from those of persons from other countries. Nationals of member states of the European Union have entitlements on a reciprocal basis in each other’s states. The British pensioner living in Spain and the young British graduate seeking work in Germany are relying on these entitlements.

To give the broad outline of a very complicated system: nationals of member states of the European Union have the right to travel to the UK and to remain for up to three months without further ado, along with family members accompanying or joining them, provided that they do not become an unreasonable burden on the UK’s system of social assistance. In the UK, this is reasonably straightforward: the law does not permit them access to those benefits that constitute, as a matter of European Union law, the UK’s social assistance system.

After 1 January 2014 Bularians and Romanians are free to take any job in the UK, or indeed in any other member state of the European Union.

After three months, it is not enough for the EEA national to be present in the UK. Their entitlements and those of their family members depend upon their being “Qualified persons”: workers, jobseekers, self-employed and providing services, students or self-sufficient.

Differential treatment of Bulgarians and Romanians must cease on 1 January 2014 as a matter of the conditions of their accession to membership of the European Union. Henceforth they will be subject to the same rules as other European nationals. The main difference for most Bulgarians and Romanians on 1 January 2014 will be that after that date they are free to take any job in the UK, or indeed in any other member state of the European Union, just as an English, French, German, Polish or Spanish person can.

To date they have been limited to similar jobs to those which non-EEA nationals can do, for the most part highly skilled jobs, with some very limited opportunities for the low-skilled: to do domestic work or assist in certain forms of meat and mushroom processing.

New requirements

What of British nationals? One of the situations where a British person faces the complexity of immigration law is when he or she marries or forms a civil partnership, or forms an unmarried partnership, with a foreign national whose only entitlement to be in the UK will derive from the relationship.

It has long been the case that most categories of the UK’s immigration rules, including the old rules for spouses and partners, require that the foreign national will not have recourse to public funds as defined in paragraph six of the immigration rules. It has been accepted that earning the equivalent of the old income support means that a person did not need recourse to public funds (which in any event, they are barred by law from getting). It has also long been a requirement that the accommodation in which they are to live is adequate; overcrowding is not permitted.

Since July 2012, greater wealth is required to come to the UK. There are new financial requirements, which must be met either from income or savings or a combination of the two. For a couple, if just relying on income, a gross annual income of £18,600 is required. If the applicant has and wishes to bring any children, an additional £3,800 gross annual income is required for the first non-British child and a further £2,400 for each additional non-British child.

Since July 2012, there are new financial requirements for those coming to the UK, which must be met either from income or savings or a combination of the two.

No overseas earnings from work of the foreign national applicant can be taken into account, only those of the British partner. Similarly with job offers.

If relying on savings, a formula is applied: Savings required = £16,000 + 5 (£18,600 – Gross annual income). If the couple have no income they must show savings of £62,500. Savings must be held in a bank account, untouched, for three months.

Where the applicant is in the UK and is applying to stay with his/her partner in the UK, the only difference is that the applicant’s earnings from work may be included along with those of the partner to meet the requirements.

These new requirements have meant a much larger group of people than before are struggling to qualify under the immigration rules and fear separation or having to go abroad to live together. For many the difficulty is qualifying in the first place. If the foreign national partner can get leave to come to the UK or to remain in the UK as a spouse they will be barred from having recourse to public funds, but they will be allowed to work.

Alison Harvey is general secretary of the Immigration Law Practitioners’ Association