On the one side there’s the myth. I hear it from UK citizens of every ethnicity, from Radio 4 in uncritical mode, from friends and family. It feeds UKIP, the British National Party, the EDL and tabloid stories. It’s the myth that EU migrants can come here and claim welfare benefits ‘from day one’. On the other side there’s the European Commission, taking the UK to the European Court of Justice on the grounds that our ‘right to reside’ test is discriminatory.
Between these two poles swirl justified concerns, fears and confusions. Welfare rights law is byzantine at the best of times. Where migrants are involved, Byzantium meets Brussels, with case-law added. There are straightforward moments, but they’re few. Here is a modest attempt to separate some of the fact from the fiction.
The myth of the immigrant skiver
Our law does not aim at freedom of movement for people from the countries of the EEA (the EU plus Iceland, Liechtenstein and Norway). Its purpose is freedom of movement for workers.
EEA nationals can come to Britain and legally stay here, employed or not. It is their right to benefits which is at issue. In legal language they are told, confusingly, that they have ‘no right to reside’. Many people panic when they hear this. But this does not mean they will be deported. It does, however, relate to the right to receive benefits.
Working for your benefits
Employed or self-employed EEA migrants, being workers, can claim pretty much the same benefits and tax credits as UK citizens. So can their dependents (spouses or civil partners, dependent children under 21 and parents). It doesn’t have to be full-time work, though it does have to be ‘effective and genuine’.
However, no unemployed EEA migrant can claim benefits ‘from day one’. On arrival in the UK they have to prove that they are ‘habitually resident’, which means an intention to settle here for a reasonable time. This usually takes a few weeks, at the discretion of the Department for Work and Pensions, HMRC or the Local Authority depending on the benefit claimed. This part of the test is not questioned by the European Commission. It is a relatively simple hurdle, surmounted usually by the passage of time.
The key is having ‘worker status’. It’s this which gives the ‘right to reside’. So EEA job-seekers, those who are actively seeking work with a realistic chance of finding it, can also claim benefits: Job Seekers Allowance (JSA) and then Housing Benefit and Council Tax Support, Child Benefit and Child Tax Credit.
But they don’t have the same rights as UK citizens. They cannot claim Income Support (for single parents and carers) or, initially, Employment & Support Allowance (ESA, the benefit for sick or disabled people).
A rocky road
Nor is their path a smooth one. Their initial JSA claim may take months rather than weeks. It will go up to DWP’s specialist unit at Wick on the north-east tip of Scotland, responsible for checking right to reside. Wick is a Black Hole. So far as I know, it is inaccessible to advisers by phone, fax or email. Letters are answered in the end. Job Centre Plus’ call centre will have no details of the claim’s progress or the reason for delay. (I fantasise about one day visiting Wick. I want to see if it really has ‘abandon hope, all ye who enter here’ emblazoned over the gate.)
Meanwhile, entitlement to Housing Benefit and Council Tax Support depends upon establishing the same right to reside. Although local authorities have the power to make a separate determination, they are unlikely to do so. HMRC’s decision-makers, for child benefit and tax credits, inhabit a separate bunker. They produce lots of letters, often mutually contradictory and incomprehensible to most recipients. That’s a problem which doesn’t only affect migrants.
While waiting for Wick’s ruling (and receiving no money), the unemployed EEA citizen has to sign on and keep the job seekers agreement; or find a job. In Peterborough where I work, many migrants take one or more of the zero-hours contracts which bring in the fluctuating, insecure income typical of life at the bottom of the jobs ladder. Most people with such jobs have to top up by claiming JSA and housing benefit, declaring the hours they work to JobCentre Plus and the local authority; or they bob nightmarishly in and out of claims. Those options aren’t open to migrants with no right to reside.
If a worker or established job seeker becomes temporarily ill, that key ‘worker status’ may (there’s no guarantee) be retained. Such people can then claim Employment and Support Allowance (ESA) until they regain fitness to work. However, they must move near-seamlessly from job or JSA to ESA; if they drop out of (or have never been in) the job market, they lose their right to reside and are entitled neither to ESA nor to housing benefit. The benefits of any ‘dependents’ – children, partners, elderly parents – suffer the same fate.
This is rough for people who try to avoid benefit claims. I’ve met a fair few who have stuck it out on their savings, trusting that they’ll soon be fit and back in work; their only option when their savings run out is to regain right to reside by claiming JSA with all its requirements, however disabled they are. Or, of course, to go ‘home’ – if they have a home to go to. Sometimes they’ve been here for years.
Migrants with full rights
If EEA citizens are here as workers or dependents of workers continuously for five years, they can establish ‘permanent residence’. While they retain that status, their rights to benefits are effectively the same as a UK citizen’s, in sickness, health and old age. They should beware of leaving Britain for more than a short trip, though, as ‘permanent’ rights can be lost. And the five years has to be continuous, with only relatively brief breaks. That is a killer for many people who’ve been here for years but with patchy employment histories because of the difficulty of finding work, because some of their work was cash-in-hand, or because of sickness or childcare.
Again, if someone is primary carer to an EEA-citizen child who was in Britain when his or her parent was working here, then once that child’s in school (post-nursery), the carer can claim full benefits. The rationale is to safeguard the child’s right to be here. A school-age child must be at least five. Since Income Support is only payable to lone parents up to the age of five it won’t be available unless there’s more than one child.
These rules are complicated. Job Centre Plus staff, perhaps understandably but disastrously, tend to give information appropriate to UK citizens but not migrants. People put in the wrong claim and slide into a baffled limbo of benefit refusals.
‘Get a job, or go home’
Peterborough has many migrants, attracted partly by the Fenland veg-picking industries unbeloved of most native workers. But jobs are too few, and desperately insecure. There’s little room for manoeuvre for UK workers trapped in partial benefit-dependence. For migrants, it’s a bleaker picture. I have met many women who came here with their partner, found some work; then the relationship cracked. Even if pregnant or with small children, they have no income unless they claim JSA. The Work Programme offers no crèche facilities. It’s the same for women and men who come to work but become ill or disabled.
It’s tough, but the rationale is fair. Free movement of workers is what we’ve agreed. As far as I can see, most incomers have a strong work ethic. The determination to make a life here is often staggering. Little as UK citizens may welcome it, there’s a dedicated enterprise culture down amongst the migrants. They come to Citizens Advice Bureaux like the one in which I work when things have gone pear-shaped in ways beyond their control.
I’ve also met a fair number who play straight into anti-immigrant generalisations: those who show no desire to work but demand that British taxpayers take responsibility for themselves and their children. Just as I would not expect Slovakia to maintain me, so I accept that the UK has no duty to maintain them unless they have worked, are working or are willing to work.
Under the current system, we acknowledge no such responsibility. The UK is far from being a skivers’ paradise, least of all for migrants.
The children, and the future
As benefit and wage levels fall or stagnate and rents rise, poverty will grow. It is a cumulative process, with the ability to save disappearing, necessities from clothing to cookers wearing out and fitness to work eroded. A moral – and political – question faces voluntary bodies. When we meet migrants with children but with no access to benefits, what do we do? A food parcel lasting three days is no answer. To say that we have no responsibility to parents who (usually) choose to be here is different in kind from saying that we have no duty of care to children being brought up malnourished and sofa-surfing. This is an issue which will face us ever more starkly in the coming months and years. Of course, this not only touches only migrants; child poverty is on the rise for UK citizens and is set to worsen if proposed cuts to benefits of families with more than two children are accepted.
Maybe there’s work to be done across the EEA to try scotching the myth that the UK has a generous welcome for non-self-sufficient migrants.
But another part of the deal must be scotching our home-brewed myth. Britain is no scroungers’ paradise. Poor people in this country face increasingly desperate insecurity. Migrants’ safety nets are smaller still, not only from 'day one' but for years.