Desmond Rutledge

Desmond Rutledge is a barrister at Garden Court Chambers where he is a member of the public law and the welfare benefits team. He has in-depth experience in cases where there is a cross over with immigration and community care issues. He writes and provides training on welfare benefits issues and contributed the section on welfare benefits for migrants in Chapter 14 of Macdonald’s Immigration Law and Practice (9th edn) published February 2015.

Whether the right to reside test complies with EU law when applied to ‘family benefits’

Desmond Rutledge considers the Advocate General’s Opinion (C-308/14) on the EU Commission’s action against the United Kingdom’s use of the right to reside test. This post was originally published on the Garden Court Chambers Blog. The origins of the Commission’s action against the UK In European Commission v United Kingdom of Great Britain and Northern Ireland (Case C‑308/14), Advocate General Cruz Villalon (“AG”) was asked to consider an action brought by the European Commission against the United Kingdom.

22nd October 2015 By Desmond Rutledge

The Dano Effect: The restriction on benefits paid to EU citizens who are former workers

Desmond Rutledge examines the recent decision in Alimanovic (C-67/14) which holds that it is lawful for a Member State to restrict the period a former worker from another Member State can access benefits upon becoming involuntarily unemployed based on Dano (C-333/12). This post was originally published on the Garden Court Chambers Blog. Introduction In the landmark case of Dano v Jobcenter Leipzig (C-333/12) the Court of Justice of the European Union established that Member States may refuse to grant social assistance to EU citizens who enter their territory without intending to find a job and without being able to support themselves by their own means (FM write up: Dano and the exclusion of inactive…

21st October 2015 By Desmond Rutledge

Backdating welfare benefits payments to those recognised as refugees in the UK

In Blakesley v Secretary of State for Work and Pensions [2015] EWCA Civ 141 the Court of Appeal considered whether the UK Government is in breach of its international obligations towards refugees because of the lack of any provision to make back-payments of welfare benefits to those asylum seekers who, upon inquiry, are found to be refugees.

12th March 2015 By Desmond Rutledge

Benefits to be withdrawn from EEA jobseekers previously unaffected by the January 2014 changes

In January 2014, the Government introduced a number of measures aimed at restricting EEA migrants’ access to income-based JSA. A key change was the introduction of a statutory presumption that entitlement to income-based JSA (‘JSA(IB)’) would be limited to a period of three months (or six months for EEA nationals with retained worker status) unless the jobseeker could pass a Genuine Prospect of Work (GPoW) assessment.

24th February 2015 By Desmond Rutledge

Challenging a refusal of permission to appeal by the Upper Tribunal

This piece started life as a practice note for welfare benefits cases but the same principles are transferrable to the immigration jurisdiction so we thought it would be helpful to share it here on Free Movement as well. If permission to appeal against a decision of a First-tier Tribunal in a welfare benefits case is refused by the Upper Tribunal (Administrative Appeals Chamber), then the claimant will not be able to appeal that decision. This is because it is an excluded decision under s. 13(8)(c) of the Tribunals, Courts and Enforcement Act 2007, and the Upper Tribunal has no jurisdiction to review its refusal of permission by virtue of s.10(1)…

16th February 2015 By Desmond Rutledge

New Zambrano case: Good news and bad news for Zambrano carers

Court of Appeal rules that the Zambrano status arises immediately and there is no need to show destitution. However, Zambrano carers have no entitlement to mainstream social assistance following the amendment to the habitual residence test in November 2012. In Sanneh & Ors v Secretary of State for Work and Pensions and Others [2015] EWCA Civ 49 (Arden, Elias, Burnett LLJ), the Court considered the position of Zambrano carers in need of social assistance. The Court held that the Zambrano status is a positive right which arises as soon as the necessary conditions are satisfied; there is no need to wait until the carer is destitute or threatened with actual…

10th February 2015 By Desmond Rutledge

Existing EEA migrants at risk of destitution following the removal of Housing Benefit

New Social Security Advisory Committee Report voices concerns On 20 November 2014, the Social Security Advisory Committee (SSAC) published its Report on the regulations which remove entitlement to Housing Benefit for certain categories of European Economic Area (EEA) jobseekers. The Committee expresses a number of concerns about the impact of these measures, including what will happen to existing EEA migrants for whom returning to their ‘home’ country is not a realistic or viable option. The Government’s response is stark and uncompromising. But what is the position in EU law?

25th November 2014 By Desmond Rutledge

Dano and the exclusion of inactive EU citizens from certain non-contributory social benefits

When the Grand Chamber handed down its judgment in Dano v Jobcenter Leipzig (C-333/13) on 11 November 2014, it was the subject of much media attention: Germany can deny benefits to jobless EU migrants, court rules (The Guardian), Landmark ECJ ruling boosts David Cameron’s bid to clamp down on EU benefit migrants (The Independent), EU court ruling backs curbs on ‘benefit tourism’ (BBC News) and The end for benefit tourism: European court rules unemployed EU migrants can be denied welfare payments (The Mirror). Such media interest for a judgment of a Court of Justice of the European Union is unusual, and for cases on social security it is practically unheard of….

19th November 2014 By Desmond Rutledge

Removal of entitlement to housing benefit for EEA jobseekers

This entry is part 3 of 3 in the series EEA benefit crackdown

On 19 January 2014, Iain Duncan Smith and Theresa May told the Daily Mail that Britain’s generous welfare system should no longer be a ‘magnet’ for citizens of other EU states and that they would be introducing a number of measures aimed at new migrant jobseekers from the European Economic Area (EEA). “For those migrants who do come here, we’re ensuring they are unable to take unfair advantage of our system by accessing benefits as soon as they arrive.  For example, we introduced rules so that from January 1 this year we are banning individuals from receiving out-of-work benefits until they have been living in the UK for three months….

21st March 2014 By Desmond Rutledge

Using the minimum earnings threshold to determine who is a ‘worker’

This entry is part 2 of 3 in the series EEA benefit crackdown

The Department of Work and Pensions has introduced the Minimum Earnings Threshold ‘(MET)’ as part of the decision making process for determining whether EEA nationals who claim income-based jobseeker’s allowance (JSA(IB)) have retained the status of a ‘worker’. Here I look at what it is, how it works, its intended and actual impact and whether it may be amenable to legal challenge.

18th March 2014 By Desmond Rutledge

New habitual residence test and the impact on returning UK nationals

This entry is part 1 of 3 in the series EEA benefit crackdown

The habitual residence test has been part of the benefits system since 1996.  Under the test, new entrants to the UK and returning nationals are required to show that they are habitually resident in the Common Travel Area (the UK, the Channel Islands, the Isle of Man or the Republic of Ireland); otherwise they will be ineligible to claim benefit.  Nessa v Chief Adjudication Officer established that in order to satisfy the test the claimant must have both a settled intention to remain in the UK for the time being and have actually resided here for an ‘appreciable period’.  What amounted to an appreciable period was not fixed, and each…

14th March 2014 By Desmond Rutledge

The political row over benefits and EU migrants

New rules restricting access to welfare benefits for new EU migrants including a six month statutory presumption for benefits paid to jobseekers. In this post Garden Court Chambers barrister Desmond Rutledge looks at how we got here, what are the new rules and what might follow next.

13th January 2014 By Desmond Rutledge

Provision to claim child benefit without breaching the public funds condition

It is well known that those who have been granted leave to remain (LTR) in the United Kingdom but who have a ‘no recourse to public funds’ condition attached to their leave (including those who have applied under Appendix FM of the Immigration Rules) would be in breach of that condition if they claim ‘welfare benefits’, which are defined as ‘public funds’ in the Immigration Rules. Moreover, a person in that position would come within the general exclusion to most welfare benefits and to tax credits as someone who is a ‘person subject to immigration control’ pursuant to section 115 of the Immigration and Asylum Act 1999 (and s 42…

7th January 2014 By Desmond Rutledge

Welfare benefits for EEA nationals: Is the refusal of benefit proportionate?

In the recent case of Pensionsversicherungsanstalt v Peter Brey [2013] EUECJ C-140/12 (19 September 2013), the Court of Justice of the European Union (‘CJEU’) ruled that welfare benefit legislation which automatically bars benefit to an EEA national from another Member State based on the right to reside requirement is contrary to EU law as it means the competent authorities lack the ability to consider the proportionality of the refusal by reference to the claimant’s personal circumstances. This represents a significant development in the law and means that domestic law on the right to reside and welfare benefits will need to be revisited in the light of the new learning in…

29th October 2013 By Desmond Rutledge