sou · H5B35d2 · 2017-02-01 00:00:00 — 60–61, the ECJ stressed that the concept of “social assistance system” must be interpreted as covering all assistance introduced by the public authorities, whether at national, regional or local level, that can be claimed by an individual who does not have resources sufficient to meet his own basic needs and the needs of his family. dom of movement solely in order to obtain another Member State’s social assistance.6 When is the assessment made? For instance, is the assessment made in connection with registration in the country, at the point of application for benefits or in relation to termination of benefits? Who is responsible for the assessment? Do you do systematic follow-ups or controls, and in that case, how? The Danish Immigration authorities will undertake the assessment in relation to legal for economically inactive Union citizens. At the request of the authority, the local council of the muni- cipality in which the Union citizen lives or resides shall issue an opinion as to whether the person has income or means at his disposal corresponding at least to the sum of the benefits for which he would be eligible under section 25(12) and section 34 of the Act on an Social Policy. Such opinion is normally only requested if it is not indisputable whether the persons in question would be eligible for benefits under section 34 of the Act on an Social Policy. When assessing whether a Union citizen should be granted benefits under the terms of the Social Policy Act (law con- cerning social policy), the local council of the municipality will make sure that the person involved in fact has a legal in . This can for instance be done by contacting the Danish Immigration authorities to get a confirmation hereof. In case of an application, the Danish Immigration authorities will carry out a thorough assessment on whether the conditions are met for Union citizens in relation to legal . A subsequent control of whether conditions continuously are being met will only be carried out in respect of the prohibition of systematic control in relation to the Free Movement Directive, for 6 Case C-333/13, . instance if the Danish Immigration authorities have specific reasons to believe that the conditions are no longer being meet. Is registration a requirement for legal ? If yes, how and when is the registration conducted? A Union citizen may freely enter and remain in the country for up to 3 months without an EU document (registration certificate). If the stay in will last more than 3 months, the Union citizen has to apply for an EU document before the expiry of the three months. The certificate is not issued for a specific duration and will remain valid for as long as the conditions on which it was issued continue to apply. How do you interpret and use the term habitual in Regulation 883/2004? Which factors are used to assess habitual , and how are they applied? Habitual is mentioned in Article 1 j) of Regulation 883/2004 and is defined as the place where a person habitually resides. Furthermore, habitual is explained in Article 11 of Regulation (EC) No 987/2009. Where there is a difference of views between the institutions of two or more Member States about the determination of the of a person to whom the basic Regulation applies, these institutions shall establish by common agreement the centre of interests of the person concerned, based on an overall assessment of all available information relating to relevant facts, which may include, as appropriate: 1.The duration and continuity of presence on the territory ofthe Member States concerned; 2.The person’s situation, including: the nature and the specific characteristics of any activity pursued, in particular the place where such activity is habitually pursued, the stability of the activity, and the duration of any work contract; his family status and family ties; the exercise of any non-remunerated activity; in the case of students, the source of their income; his housing situation, in particular how permanent it is; the in which the person is deemed to reside for taxation purposes. These explanations also serve as the orientation for the interpret- tation of the term in . According to your view, could legal (right of according to directive 2004/38) be one of the factors to assess habitual ? Under German social law (Section 30 of of the Social Code – SGB I) persons have their habitual in the location where they reside under circumstances which indicate that they are not only staying temporarily in this place or in this area. According to German jurisdiction by the highest federal court, it is not an imperative prerequisite for the recognition of habitual resi- dence that someone has been legally residing in . Legal can however be important evidence in order to assess whether someone presumably only stays temporarily in and the issue of legal is thus indirectly relevant in order to assess whether someone resides habitually in . Section 30 of SGB I is subsidiary to supra- and international law and special provisions governing certain types of social benefits. Is legal a requirement for benefits that are not classified as special non-contributory cash benefits, and in that case for which benefits? Section 30 (1) of Book One of the Social Code provides that German social law applies to all persons who have their domicile or ordinary within its scope. We do have benefits in that are not non-contributory cash benefits and that may be claimed only by persons who legally reside in . In the following, some examples are given. Union citizens who enjoy the right to free movement and have a domicile or their ordinary in , or who are fully liable to income tax for other reasons, are entitled to child benefit under German legislation. By virtue of the regulations laid down in the Act on the General of Movement for EU Citizens, it is assumed that Union citizens are entitled to free movement unless the loss of this right is determined by the foreigners authority. No concrete questions are asked about the right of free movement in the application for child benefit. Applicants are only required to indicate their nationality. Only applicants who do not come from the EU/the EEA are required to add their permits. Child benefit can only be denied EU citizens who are entitled to freedom of movement if the foreigners authority has formally determined that a person is no longer entitled to free movement.7 Parental benefit (parental allowance, parental allowance plus and partnership bonus) is granted to mothers and fathers who care for and raise their children themselves after birth; 7 See also: /web/content/DE/BuergerinnenUndBuerger/ FamilieundKinder/KindergeldKinderzuschlag/Detail/index.htm?dfContentId=L6019022D STBAI494673 are employed for a maximum of 30 hours per week; live with their children in one household, and have a domicile or their ordinary in . Recipients of parental benefit are treated in the same way as recipeents of child benefit: It is assumed that they are entitled to free movement unless the loss of this right is determined by the foreigners authority. In accordance with Section 1 (7) of the Federal Parental Benefit and Parental Leave Act, foreigners who are not entitled to free movement may claim parental benefit only if they hold settlement permits or permits.8 The statutory health insurance is governed by Section 5 (11) of Book Five of the Social Code/SGB V. Foreigners who are not nationals of a of Union, nationals of a State party to the Agreement on Economic Area or nationals of are subject to compulsory coverage if they hold settlement permits or permits that are limited to a period of more than twelve months in accordance with the Act and if no obligation to secure a foreigner’s sub- sistence is linked to these titles being granted. Pursuant to Section 4 of the Act on the General of Movement for EU Citizens, insurance coverage is a prerequisite for taking up in for economically inactive nationals of another of Union, nationals of another State party to the Agreement on Economic Area or nationals of . Persons entitled to benefits under the Asylum Seekers Benefits Act are covered in the event of sickness if they are in principle entitled to benefits in the event of sickness, pregnancy and delivery under Section 4 and 6 of the Asylum Seekers Benefits Act. The benefits accorded under the Asylum Seekers Act are limited insofar 8 See also: /web/content/DE/BuergerinnenUndBuerger/ FamilieundKinder/KindergeldKinderzuschlag/Detail/index.htm?dfContentId=L6019022D STBAI494673 as they are usually accorded only in the event of acute illness and pain for the first 15 months. In addition to this, other benefits essential to maintain health may be accorded in special individual cases. According to EU coordination law, employment entails the obligation to get insurance coverage. To receive unemployment benefit (Arbeitslosengeld), you must: have personally registered as unemployed; have completed the qualifying period; be actively seeking work and be available for work. You are classed as unemployed if you have no work at all or if you work for less than 15 hours a week for an employer or on a self- employed basis. To register as unemployed you must visit the employment agency in person and report that you have become unemployed; you cannot register by phone or by post. To complete the qualifying period, you must accumulate at least twelve months (360 days) of Federal Employment Agency contri- butions, either by working or otherwise (for example, by claiming sickness benefit), within the timeframe of the last two years. There are no special conditions for foreigners. The same rules are also valid for asylum seekers and foreigners whose deportation has been suspended. In , (legally) employed persons are insured by law in the statutory occupational accident insurance system. There are excep- tions to this rule in special cases (e.g. posted workers). Here, enter- prises have to register the relevant employees with the competent occupational accident insurance fund. As a rule, all employees enjoy statutory occupational accident insurance coverage, including asylum seekers and persons whose deportation has been suspended and who take up employment. Interns who are integrated into a company by means of work activities also enjoy occupational accident insurance coverage – regardless of whether they are paid wages. Social assistance under Book Twelve of the Social Code The right to free movement is partly a prerequisite for EU citizens who want to claim social assistance under Book Twelve of the Social Code. As a rule, it is assumed here, too, that EU citizens enjoy this right. In case of doubts, the authorities can check on their own whether a person is entitled to free movement and call in the foreigners authorities. The latter determine whether a person has lost this right and, if necessary, initiate further steps under the law on foreigners. Persons without a right of have access to certain social assistance benefits under Book Twelve of the Social Code. (1) of Book Twelve of the Social Code provides that a person’s factual in is the only determining factor for access to subsistence allowance, assistance in the event of sickness, pregnancy, maternity and care. The benefits are provided at the discretion of the competent institution. There is no scope of discre- tion for the competent institution, however, if a person enjoys a consolidated status. Such a status is assumed after a period of more than six months. How do you measure whether a person has sufficient funds to not becoming a burden on the national social security system? What do you consider a burden on the national social security system? To determine whether an unemployed person entitled to freedom of movement has sufficient resources in the sense of the directive on free movement to avoid being a burden on the social security system, a requirement is having sufficient health insurance cover- age and adequate means of subsistence for the EU citizen and all accompanying members of the family. If people inappropriately draw (tax-funded) benefits under SGB II9 or SGB XII during their stay this may indicate that their means of subsistence do not suffice and are considered a burden on the national social security system. a) Health insurance coverage The EU citizen and all accompanying members of the family must either take part in a statutory health insurance plan or permanent private health insurance plan. b) Means of subsistence To determine whether a person has sufficient funds to not be a burden on the social security system, his or her means of sub- sistence are taken into account. Means of subsistence include all legally allowable income and wealth in money or monetary value or other own resources, in particular maintenance payments from family members or third parties, scholarships, training aid, unemployment benefits, pensions for invalidity, survivors, retirement or old-age, pensions due to accidents at work, professional or occupational disability or other means from public funds based on contributions. This does not include means provided under Book II of the Social Code to job seekers or the funds to be granted to persons living together with them in a so-called community of need. It is assumed that sufficient resources exist, if during the stay no benefits under Book II or XII of the Social Code are received. If however in some cases subsequently a request for appropriate services is made, there is a special occasion for a review of the con- tinuity of the conditions of the right of freedom of movement. The legislation on the general free movement of EU citizens (FreizügigG/EU) does not specify a fixed amount for the level of means of subsistence. This would be impermissible under article 8 paragraph 4 of the free movement directive. It is necessary to have a comparison calculation taking into account the regional, social- welfare programme required amounts. At the same time, the 9 Basic provision for jobseekers. personal circumstances of each individual case must be considered. The amount required in accordance with this must not be above the threshold under which German social assistance is granted. A specific threshold cannot be set here, because the values vary regionally. Family and life partners of unemployed EU citizens who accompany them or join them, are entitled to freedom of movement under the same conditions as EU citizens. It is not required, however, that the family members and the partners arriving after or accompanying the EU citizens have sufficient means of subsistence themselves. The financial resources of the EU citizens, from which the family member or the spouse derives his right of , can be taken into account. When is the assessment made? For instance, is the assessment made in connection with registration in the country, at the point of application for benefits or in relation to termination of benefits? Who is responsible for the assessment? Do you do systematic follow-ups and controls? Generally, Union citizens are assumed to be entitled to free move- ment. In exceptional cases the foreigners authority may check whether the prerequisites for making use of the right to free move- ment are fulfilled or continue to be fulfilled. It could be considered an exceptional case if inactive Union citizens or their family members want to draw benefits under SGB II or SGB XII. However, the fact that people draw benefits does not automatically mean that their right to free movement is forfeited. It can also be considered a special reason for a reassessment of the case if there is sufficient evidence indicating that the person in question has lied about the circumstances relevant in connection with the right to free movement. If there are doubts as to the entitlement to free movement, the authorities may assess whether the person in question is entitled to free movement and they can consult the foreigners authorities. Only the foreigners authorities can determine the revocation the right of free movement including any consequences under the foreigners legislation. We do not do systematic follow-ups or controls. Follow-ups or controls are only done if particular circumstances indicate the absence of the entitlement to free movement. Is registration a requirement for legal ? If yes, how and when is the registration conducted? a) Entry and stay of EU citizens EU Citizens have the right to free movement for and work in all of . They may stay for up to three months in . For entry and in , EU citizens do not need a visa or permit, but only a valid passport or ID card. If EU citizens remain more than three months in and take a flat during this time, they are subject to the general legal notification obligations and must register within two weeks at the local registration office. The registration authorities then send the data required to the competent foreigners authority. The foreigners authority may then require that the conditions for the exercise of the right of freedom of movement be demonstrated in accordance with the EU directive. EU citizens and their family members can already provide the necessary details when registering with the local registration authority. Thus, typically going to the Immigration Office is unnecessary for citizens of the Union. There is no separate legal reporting obligations. The competent authorities of the Federal States regulate the procedure in detail. b) Citizens of Economic Area and of Citizens of Economic Area (, and ) enjoy the same rights as EU citizens. The Swiss are exempt from the requirement of a permit in accordance with the agreement from 21 1999 between Community and its Member States, on the one side, and the Swiss Confederation on the other, on the free movement. c) Third-country nationals non-privileged third-country nationals, which stay for more than three months in , need a permit issued by the local foreigners authority. Before they apply for a permit however, they must first register their place of in with the competent registration office.10 How do you interpret and use the term habitual in Regulation 883/2004? As stated in on Applicable Legislation, the term “” has a Union-wide meaning, i.e. it applies per definition an identical way across all benefits for the purposes of applying Regulation 883/2004 and Regulation 987/2009. This means that whenever these two Regulations refer to the term “”, this European definition applies in particular for all provisions in the Regulations which are meant to solve possible conflicts of law. The apply the interpretation of the term ‘habitual ’ as laid down in Article 1(j) of Regulation 883/2004 and Article 11 of Regulation 987/2009. The national insurances cover anyone who is ‘resident’ in the , i.e. who has a substantive link of a personal nature with the . The factors taken into account are explained below. Which factors are used to assess habitual , and how are they applied? In order to determine the centre of interests of the person con- cerned, the institutions have to carry out “an overall assessment” of all available information relating to relevant facts. In examining if a person has habitual in the the income situation first of all provides relevant information. 10 See also: /SharedDocs/FAQs/DE/Themen/Migration/Freizuegigkeit/ Freizuegigkeit_4.html person is performing an activity as an employed or self-employed in the , this is already an important indication for the existence of such a link. Other factors that are taken into account for the assessment of habitual are: 1.The family situation of the person concerned; 2.If the children are going to school in the ; 3.If a person is enrolled in an education program aimed at integration or participation in the labour market; 4.Political, cultural and/or other activities (such as membership of a political party, a sports club or a church); 5.The presence of a family member who has already been living or working in the for a longer period of time; 6.Evidence that suggests that the person will leave the in the near future to settle elsewhere. According to your view, could legal (right of according to Directive 2004/38) be one of the factors to assess habitual ? Yes, legal in can be a condition for habitual in specific cases. This was also most recently confirmed in the judg- ment of the Court of in the case Commission vs (C-308/14). Is legal a requirement for benefits that are not classified as special non-contributory cash benefits, and in that case for which benefits? Yes, in the Dutch social security system legal on the basis of the National Aliens Act 2000 is – in principle – a precondition for the right to all social security benefits, ranging from child benefits to unemployment benefits to social assistance. On the basis of Regulation 883/2004 and in some other cases, being insured as a worker and paying contributions in the could also lead to a right to claim benefits. How do you measure whether a person has sufficient funds to not becoming a burden on the national social security system? EU citizens residing in the for more than three months must be able to have sufficient resources for themselves and their family members not to become a burden on the social assistance system and have comprehensive sickness insurance. For job seekers a period of six months applies, if they are able to demonstrate that they are actually looking for work and have a good chance of finding it. If an EU citizen does not fulfill the above-mentioned conditions and applies for social assistance, this constitutes an unreasonable burden on the social security system. What do you consider a burden on the national social security system? Applying for social assistance is considered to be an unreasonable burden on the Dutch social assistance system. When is the assessment made? For instance, is the assessment made in connection with registration in the country, at the point of application for benefits or in relation to termination of benefits? The assessment is made on request of municipal social services in case of an application for social assistance, but only when reasonable doubt arises on the legality of . Also the can make a request to check the legal of EU-citizens with criminal records of EU-citizens that cause nuisances related to lack of suffi- cient resources (petty crime for survival, begging, sleeping on the streets). Who is responsible for the assessment? The Immigration and (). Do you do systematic follow-ups or controls, and in that case, how? Is registration a requirement for legal ? If yes, how and when is the registration conducted? No, we have no mandatory registration of EU-citizens with the IND anymore. How do you interpret and use the term habitual in Regulation 883/2004? Which factors are used to assess habitual , and how are they applied? The legislation in the different social security sectors often uses the concept of : as a condition for granting, to determine the territorial competence of an institution, to assess if the insured person lives with someone else, etc. In this context, the concept of is the place where the person concerned actually lives, where he/she has established the habitual centre of his/her life. The nature of the does not matter provided that the person concerned is habitually present there. legal means can be used as evidence of the (e.g. a lease contract, rent receipts, electricity or gas bill, etc.). Similarly, the absence of can result from a set of evidence such as a low energy consumption, a repeated absence when the postman or a social worker passes, the absence of rental payments, etc. Except for some exceptions provided by the legislation, the entry in the population registers is one indication among others regarding the , but it is not in itself a decisive factor.