Information Note
Extending the Provisions of Regulation (EEC) No 1408/71 and 574/72 to Third Country Nationals (TCN’S)
(Council Regulation (EC) No 859/2003 of 14 May 2003)
From 1 June 2003 the EC Social Security Regulations were extended to include third country nationals. This means that the Regulations no longer apply only to EC nationals, stateless persons and refugees.
Who is covered?
Persons regardless of nationality who are legally resident in a Member State will be covered by the Regulations if they move to another Member State. These arrangements do not apply to Denmark. In addition, as the arrangements only apply to TCN’s legally resident in a Member State they will not apply at present to Switzerland, Iceland, Liechtenstein and Norway.
The arrangements will not apply to a TCN in a single Member State. For example a US national working in the UK will not be covered by the EC Social Security Regulations unless they move to another Member State.
How do we check ‘legal residence’?
To be covered by the EC Social Security Regulations a person must be "legally resident" in the UK. Although this is for the Home Office to determine, customers will be asked to confirm that they are "legally resident" in the UK when applying for cover under the terms of the EC Social Security Regulations. This question has been included on all relevant application forms and the information provided will be confirmed from data held on the customer’s National Insurance account.
Member States have their own rules for deciding who is legally resident in their country.
Posted workers from 1 June 2003
A ‘posting’ occurs when a worker is sent by his UK employer to work in another Member State on their behalf for a limited period - usually up to 12 months.
TCN’s going to other EU countries with the exception of Denmark, Switzerland, Iceland, Liechtenstein and Norway will be entitled to form E101/E128 where all normal posting conditions are satisfied once they have been confirmed as "legally resident" in the UK.
Applications should be made to HMRC Residency Newcastle in the normal way.
For TCN’s going to Switzerland, Iceland and Norway as posted workers it will still be possible to apply for a Certificate of Continuing UK liability under the terms of the Reciprocal Agreements which the UK has with these countries. The UK does not have a Reciprocal Agreement with Liechtenstein and the Agreement with Denmark only applies to nationals of the UK and Denmark who are already covered by the EC Regulations.
Workers already abroad at 1 June 2003
Postings which commenced before 1 June 2003 will be looked at individually, but in general if the worker was liable for UK Class 1 contributions at 1 June 2003 then ideally UK National Insurance contributions should be allowed to continue.
Any certificate of continuing liability issued under the terms of a Reciprocal Agreement will be allowed to run its course. An application should however be made to HMRC Residency Newcastle for a form E128 to provide health care cover from 1 June 2003.
Where the worker was continuing to pay UK National Insurance contributions for the 1st 52 weeks of employment abroad under UK domestic legislation and
- all normal posting conditions are satisfied, and
- the employment is expected to be for less than 12 months from 1 June 2003
an application for forms E101 and E128 should be made to HMRC Residency (Newcastle).
Where such an application is made and the worker is already paying contributions to the scheme of another Member State then the worker should advise the relevant social security office in the other Member State that an E101 is being applied for from 1 June 2003.
Where the employment is expected to exceed 12 months from 1 June 2003 any request for Article 17 will be considered in the normal way. This means that special reasons must be given for wishing to retain the worker under UK legislation and a signed statement from the worker must be sent with the application confirming their agreement to the request. Applications will then be sent to the authority in the other Member State for their approval.
Where the worker is no longer paying UK Class 1 National Insurance contributions at 1 June 2003, they will be subject to the Social Security legislation of the other Member State. The worker should, however check out their Social Security position with the authorities in the other Member State.
Self-employed workers
Similar arrangements will apply to self-employed workers for postings to other Member States.
Additional Information
If you would like further information about this note please telephone the HMRC Residency (Newcastle) helpline at the following number:
0845 91 54811 (if phoning from the UK) or
0044 191 2037010 (if phoning from abroad).
Alternatively HMRC Residency (Newcastle) can be contacted at the following address:
Inland Revenue
HMRC ResidencyBenton Park View
Newcastle upon Tyne
NE98 1ZZ
