This note gives a broad overview of the rules on access to benefits and tax credits for people coming to the UK from abroad. It describes the situation for asylum seekers, nationals from European Economic Area (EEA) countries, and non-EEA nationals.Jump to full report >>
The rules on eligibility for benefits for people coming to the UK from abroad are one of the most complex areas of welfare rights law. Whether or not a person can claim benefits and, if so, which benefits, may depend on a number of factors. These include nationality, immigration status (and any conditions attached to it), the circumstances under which the person arrived in the UK, whether they are deemed “habitually resident”, whether they are in work or looking for work, and whether they arrived alone or with other family members. Many other factors may be relevant.
This note gives a broad overview of the rules on access to benefits and tax credits for people coming to the UK from abroad. It describes the situation for three groups:
It is not intended to be a definitive statement on who can claim what, but rather to indicate in broad terms the factors which can determine what people in each of the three categories may be able to claim.
Links are included to further Library briefings which give more detailed information, and to other resources. This is however a very complex area of the law. It is important that individuals who are uncertain about what they are entitled to seek specialist advice before making a claim for any benefit or tax credit.
For some people, a claim for benefits may mean that they are in breach of immigration conditions and could result in their removal, a refusal of further leave and/or prosecution.
Asylum seekers – ie persons waiting for a decision on an asylum application – are not entitled to mainstream non-contributory social security benefits including income-based Jobseeker’s Allowance, Income Support and Housing Benefit.
Instead, they may be eligible for accommodation and/or financial support (“asylum support”) from the Home Office. Cash support for asylum seekers is less generous than social security benefits.
Refugees – ie asylum seekers whose application for asylum has been successful – are able to claim social security benefits and tax credits on the same basis as UK nationals.
Members may be contacted by constituents complaining that “illegal immigrants/refugees” in Britain receive significantly more financial assistance from the Government than UK pensioners, citing an email.
Non-EEA nationals with indefinite leave to remain (often called “settled status”) have no time limit on their right to stay in the UK, and no conditions may be attached to their status.
They can therefore access social security benefits and tax credits on the same basis as UK nationals (unless their right to remain was awarded as a result of a formal undertaking by another person to maintain and accommodate them).
Most people admitted to the UK from outside the EEA will have limited leave to remain and will be subject to the condition that they have “no recourse to public funds” during their stay in the UK.
A person with limited leave to remain who has recourse to public funds in breach of their leave conditions can find themselves liable to removal, refusal of further leave and/or prosecution.
“Public funds” covers a wide range of benefits including:
A non-EEA national who requires leave to enter or remain in the UK but doesn’t have it; or has leave subject to a public funds restriction or an undertaking by another person to maintain them; or has leave only because they are appealing a decision refusing an application to vary their leave, is classed as a “Person Subject to Immigration Control” (PSIC).
A PSIC is not entitled to most social security benefits and tax credits, except in certain limited circumstances.
The benefits a PSIC is prevented from claiming include:
Eligibility for benefits which depend on National Insurance contributions, such as contribution-based Jobseeker‘s Allowance (JSA) and contributory Employment and Support Allowance (ESA), and other work-related benefits including Statutory Maternity Pay, Statutory Adoption Pay, Statutory Paternity Pay, Statutory Sick Pay and Industrial Injuries benefits are restricted to those who are entitled to work in the UK.
Even if a non-EEA national is not prevented from claiming benefits because of their immigration status, they may still be prevented from claiming certain benefits within a certain period of arrival in the Common Travel Area (the UK, Ireland, Channel Islands and the Isle of Man) if they are deemed not to be “habitually resident.”
The Habitual Residence Test is applied to people (unless they in an exempt category) who have recently arrived in the country and who make a claim for certain benefits, or seek housing assistance from a local authority. It applies to returning UK nationals as well as to those coming to the UK for the first time.
There is no statutory definition of “habitual residence” but factors which may be taken into account by DWP or a local authority when considering whether a person is habitually resident include:
Since December 2013, a more “robust” process has been used to determine whether claimants are habitually resident, involving more rigorous questioning of individuals.
People coming to the United Kingdom from EEA countries5 do not have unrestricted access to UK social security benefits and tax credits.
In May 2004, the legislation governing entitlement to certain benefits and housing assistance was amended so that a person cannot be “habitually resident” unless they have the “right to reside” in the Common Travel Area (the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland).
The “right to reside” test applies to claims for a range of benefits including:
Broadly speaking, a person who moves from one EEA country to another has a right to reside in that country if they are economically active, or are able to support themselves.
Workers or self-employed persons in the host member state, and their families, have a right of residence – and with it access to benefits and tax credits – provided they are in “genuine and effective work.” A person may also, in certain circumstances, be able to retain worker status if they are no longer in work.
EEA nationals may also have a right to reside as a jobseeker, if they can show that they are looking for work and have a “genuine chance of being engaged”, and are habitually resident.
All other groups only have the right of residence if they “have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover.”
A person may also have a right to reside based on another person’s right to reside. This is known as a “derivative right to reside.” For example, a person who formerly a “worker” may have a right to reside as a primary carer of a child in education.
EEA nationals who have “resided legally” in the UK for a continuous period of five years (or less in certain circumstances) acquire a permanent right of residence and have access to benefits and tax credits on the same terms as UK nationals.
For people coming to the UK from one of the countries which joined the EU in 2004, until 20 April 2011 there were further conditions that had to be satisfied. The period expired on 30 April 2011, and from that date A8 nationals have been subject to the same rules as other EEA nationals.
The ‘A8’ comprises the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia
Until 31 December 2013, A2 nationals (Romanians and Bulgarians) were subject to transitional restrictions which limited their access to the UK labour market and benefits.
The transitional restrictions on A2 nationals were lifted from the end of December 2013, and A2 nationals will now be treated in the same was as all other EEA nationals (except Croatian nationals, who continue to be subject to rules similar to those which previously applied to A2 nationals).
One of the most controversial aspects of EU law in the area of social security is the provision under which a migrant worker may claim “family benefits” from the state in which they reside in respect of dependent children resident in another Member State.
The provisions are in EC Regulation 883/2004 on the co-ordination of social security systems for people moving between Member States, but they have a much longer pedigree. The rules apply to all EEA countries, not just the United Kingdom.
An EEA migrant in the United Kingdom who is covered by the UK social security system can claim Child Benefit and Child Tax Credit for their dependent children even if they are not resident in the UK.
The person making a claim must meet all the usual conditions for entitlement to these benefits, but the ordinary residence and presence requirements for the child or children do not apply and they can claim benefits for them on the same basis as if they were living in the UK.
Where family benefits are already being paid, “overlapping benefits” provisions apply to ensure that the family is not paid twice (the total amount they receive will not exceed the amount payable by the state with the higher entitlement).
On 9 March 2015 regulations were laid before Parliament preventing EEA jobseekers from accessing Universal Credit. The regulations provide that an EEA national whose only right to reside is as an EEA jobseeker, or a family member of such a person, cannot satisfy the Habitual Residence Test and will not be entitled to Universal Credit. The regulations came into force on 10 June 2015.
Commons Briefing papers SN06847
Author: Steven Kennedy