The European Court of Justice has recently ruled in favour of the UK and the requirement that recipients of child benefit and child tax credit must have a right to reside in the UK. On a practical level, the decision means that those claiming Child Benefit or Child Tax Credit must have a right to reside in the UK.
What is right to reside?
A claimant can argue that they have a right to reside if they:
- are working or self-employed
- are job seeking
- are a former worker
- are self-sufficient
- are a student
- have been living in the UK for at least five years and have acquired a permanent right to reside
- are the primary carer of a child who themselves has the right to reside
- are the family member of someone with the right to reside.
Satisfying the Test
Whilst EEA citizens have an initial right to reside in the UK for three months, this will not satisfy the habitual residence test for the purposes of claiming benefits. You will usually need to live in the UK for at least three months before you can claim Child Tax Credits or Child Benefit. This rule will not apply to you if you were previously ordinarily resident in the UK and have returned to the UK after an absence of less than one year.
This ruling arguably suggests that the ECJ may be receptive to approving the changes regarding restrictions on in-work benefits for EEA citizens negotiated by the Prime Minister in advance of the EU Referendum. The decision is generally reflective of the current broader ECJ approach to accepting arguments in favour of restricting access to benefits for EEA citizens as a proportionate measure of protecting public finances.
For further information see the judgement of ECJ here
There are restrictions as to which benefits EEA citizens may claim. Claiming certain benefits may also later effect an application for permanent residency with regards to the genuine and effective nature of work engaged upon. Alrose Legal would advise that any claimant seek professional advice on benefit entitlements before application.