EEA nationals: the ‘right to reside’ requirement for benefits

People coming to the United Kingdom from European Economic Area (EEA) countries do not have unrestricted access to UK social security benefits and tax credits. Since 2004, access to most benefits for EEA nationals has depended on whether they have a ‘right to reside’ here. Having a ‘right to reside’ does not simply mean that a person can live in a particular country. Broadly speaking, a person who moves from one EEA country to another has a right to reside if they are economically active, or are able to support themselves.

The European Commission has concluded that the right to reside test is discriminatory on the basis of nationality, contrary to EU law, and on 29 September 2011 issued a ‘reasoned opinion’ under EU infringement procedure. The UK has two months to inform the Commission how it intends to bring UK law into line with EU law. Failure to do so could result in the UK being referred to the European Court of Justice. The Secretary of State for Work and Pensions has described the Commission’s move as a ‘fundamental challenge to the UK’s social contract’ and said the Government would fight it.