The Social Security Coordination (Regulation (EC) No 883/2004, EEA Agreement and Swiss Agreement) (Amendment) (EU Exit) Regulations 2019

Regulation 2(b)

SCHEDULE 2 Substitution of Title 2: Determination as to when the legislation of the United Kingdom is applicable

For Title 2 substitute—

“Title 2 Determination as to when the legislation of the United Kingdom is applicable

Article A11 Purpose of this Title

This Title contains provisions that determine for the purposes of this Regulation:

(a) which persons to whom this Regulation applies are subject to the legislation of the United Kingdom; and

(b) which persons to whom this Regulation applies are treated as subject to the legislation of a Member State.

Article 11 General rules

1.   The persons subject to the legislation of the United Kingdom, and the persons treated as being subject to the legislation of a Member State, are to be determined in accordance with this Title.

2.   For the purposes of this Title, persons receiving cash benefits because or as a consequence of their activity as an employed or self-employed person shall be considered to be pursuing the said activity. This shall not apply to invalidity, old-age or survivors’ pensions or to pensions in respect of accidents at work or occupational diseases or to sickness benefits in cash covering treatment for an unlimited period.

3.   The question of whether a person was subject to the legislation of the United Kingdom at a time before exit day is to be determined as it would have been determined immediately before exit day.

4.   Subject to Articles 12 to 16, on or after exit day, the following persons are subject to the legislation of the United Kingdom:

(a) a person pursuing an activity as an employed or self-employed person in the United Kingdom;

(b) a civil servant if the administration employing the person is subject to the legislation of the United Kingdom;

(c) a person receiving unemployment benefits in accordance with Article 65 under the legislation of the United Kingdom as the person’s state of residence;

(d) a person called up or recalled for service in the armed forces or for civilian service in the United Kingdom;

(e) any other person to whom sub-paragraphs (a) to (d) do not apply if:

(i) the United Kingdom is the person’s state of residence; and

(ii) the person is not treated as being subject to the legislation of a Member State in accordance with paragraph 6.

5.   The question of whether a person was subject to the legislation of a Member State (other than the United Kingdom) at a time before exit day is to be determined as it would have been determined immediately before exit day.

6.   Subject to Articles 12 to 16, on or after exit day the following persons are treated as being subject to the legislation of a Member State:

(a) a person pursuing an activity as an employed or self-employed person in that Member State;

(b) a civil servant if the administration employing the person is subject to the legislation of that Member State;

(c) a person receiving unemployment benefits in accordance with Article 65 under the legislation of that Member State as the person’s state of residence;

(d) a person called up or recalled for service in the armed forces or for civilian service in that Member State;

(e) any other person to whom paragraphs (a) to (d) do not apply if that Member State is the person’s state of residence.

7.   For the purposes of this Title, subject to paragraph 8, an activity as an employed or self-employed person normally pursued on board a vessel at sea flying the flag of a State shall be deemed to be an activity pursued in that State.

8.   A person employed on board a vessel flying the flag of the United Kingdom and remunerated for such activity by an undertaking or a person whose registered office or place of business is in a Member State (“the employer’s Member State”) shall be subject to the legislation of the United Kingdom if the employed person resides in the United Kingdom or a Member State other than the employer’s Member State. The undertaking or person paying the remuneration shall be considered as the employer for these purposes.

9.   An activity as a flight crew or cabin crew member performing air passenger or freight services shall be deemed to be an activity pursued in the United Kingdom where the home base, as defined in Annex III to Regulation (EEC) No 3922/91, is located in the United Kingdom.

Article 12 Special rules

1.   A person (“P”) who pursues an activity as an employed person in the United Kingdom on behalf of an employer which normally carries out its activities there and who is posted by that employer to a Member State to perform work on that employer’s behalf shall continue to be subject to the legislation of the United Kingdom, provided that the anticipated duration of such work does not exceed 24 months and P is not sent to replace another posted person.

2.   A person (“P”) who pursues an activity as an employed person in a Member State on behalf of an employer which normally carries out its activities there and who is posted to the United Kingdom to perform work on that employer’s behalf shall be treated as being subject to the legislation of that Member State provided that the anticipated duration of such work does not exceed 24 months and P is not sent to replace another posted person.

3.   A person who normally pursues an activity as a self-employed person in the United Kingdom who goes to pursue a similar activity in a Member State shall continue to be subject to the legislation of the United Kingdom, provided that the anticipated duration of such activity does not exceed 24 months.

4.   A person who normally pursues an activity as a self-employed person in a Member State who comes to the United Kingdom to pursue a similar activity shall be treated as being subject to the legislation of that Member State provided that the anticipated duration of such activity does not exceed 24 months.

Article 13 Pursuit of activities in two or more States

1.   A person who normally pursues an activity as an employed person both in the United Kingdom and one or more Member States shall be subject to the legislation of the United Kingdom:

(a) if the person resides in the United Kingdom and pursues a substantial part of that activity in the United Kingdom;

(b) in the case of a person who does not pursue a substantial part of that activity in the state where that person resides, if:

(i) the registered office or place of business of the undertaking or employer or, where the person is employed by two or more undertakings or employers, all of the registered offices or places of business of the undertakings or employers employing the person are situated in the United Kingdom;

(ii) the person resides in a Member State (“the employed person’s Member State”) and is employed by two or more undertakings or employers whose registered offices or places of business are situated only in the United Kingdom and the employed person’s Member State; or

(iii) the person resides in the United Kingdom and is employed by two or more undertakings or employers whose registered offices or places of business are situated in two or more Member States.

2.   A person:

(a) who normally pursues an activity as an employed person both in the United Kingdom and one or more Member States; and

(b) who is not subject to the legislation of the United Kingdom determined in accordance with paragraph 1,

shall be treated as being subject to the legislation of a Member State.

3.   A person who normally pursues an activity as a self-employed person in the United Kingdom and one or more Member States shall be subject to the legislation of the United Kingdom:

(a) if the person resides in the United Kingdom and pursues a substantial part of that activity in the United Kingdom;

(b) in the case of a person who does not pursue a substantial part of that person’s activity in the State where the person resides, if the centre of interest of that person’s activities is in the United Kingdom.

4.   A person:

(a) who normally pursues an activity as a self-employed person in the United Kingdom and one or more Member States; and

(b) who is not subject to the legislation of the United Kingdom determined in accordance with paragraph 3,

shall be treated as being subject to the legislation of a Member State.

5.   A person who normally pursues an activity as an employed person in the United Kingdom and as a self-employed person in a Member State shall be subject to the legislation of the United Kingdom.

6.   A person who:

(a) normally pursues an activity as an employed person in the United Kingdom and as a self-employed person in a Member State; and

(b) also pursues an activity as an employed person in a Member State,

shall be subject to the legislation of the United Kingdom or treated as being subject to the legislation of that Member State if that person would be so regarded in accordance with paragraphs 1 or 2 (disregarding the person’s activity as a self-employed person).

7.   A person who normally pursues an activity as a self-employed person in the United Kingdom and as an employed person in a Member State shall be treated as being subject to the legislation of that Member State.

8.   A person:

(a) who normally pursues an activity as a self-employed person in the United Kingdom and as an employed person in a Member State; and

(b) who also pursues an activity as an employed person in the United Kingdom,

shall be subject to the legislation of the United Kingdom or treated as being subject to the legislation of that Member State if that person would be so regarded in accordance with paragraphs 1 or 2 (disregarding the person’s activity as a self-employed person).

9.   A person:

(a) who is employed as a civil servant by the United Kingdom; and

(b) who pursues an activity as an employed person or as a self-employed person in one or more Member States,

shall be subject to the legislation of the United Kingdom;

10.   A person:

(a) who is employed as a civil servant by a Member State; and

(b) who pursues an activity as an employed person or as a self-employed person in the United Kingdom,

shall be treated as being subject to the legislation of that Member State.

11.   A person who is subject to the legislation of the United Kingdom determined in accordance with paragraphs 1 to 9 shall be treated as though that person were pursuing all that person’s activities as an employed or self-employed person and receiving all that person’s income in the United Kingdom.

Article 14 Voluntary insurance or optional continued insurance

1.   Articles 11 to 13 shall not apply to voluntary insurance or to optional continued insurance unless, in respect of one of the branches referred to in Article 3(1), only a voluntary scheme of insurance exists in a Member State.

2.   If the legislation of the United Kingdom makes admission to voluntary insurance or optional continued insurance conditional upon residence in the United Kingdom or upon previous activity as an employed or self-employed person, Article 5(b) shall apply only to persons who have been subject, at some earlier stage, to the legislation of the United Kingdom on the basis of an activity as an employed or self-employed person.

Article 15 Contract staff of the European Communities

1.   Contract staff of the European Communities may opt to be subject to the legislation of the United Kingdom, in respect of benefits other than those relating to family allowances, provided by virtue of their employment with the European Communities if:

(a) they are employed in the United Kingdom;

(b) they were subject to the legislation of the United Kingdom immediately before their last employment preceding the commencement of their employment with the European Communities; or

(c) they are nationals of the United Kingdom.

2.   This right of option, which may be exercised once only, shall take effect from the date of entry into employment with the European Communities.

Article 16 Exceptions to Articles 11 to 15

1.   Exceptions to Articles 11 to 15 may be made in the interest of certain persons or categories of person by common agreement between:

(a) the United Kingdom and one or more Member States;

(b) Her Majesty’s Revenue and Customs and the competent authority, or authorities, of one or more Member States; or

(c) a body designated by Her Majesty’s Revenue and Customs and a body, or the bodies, designated by the competent authority, or authorities, of one or more Member States.

2.   A person residing in the United Kingdom who receives a pension or pensions under the legislation of one or more Member States may, at that person’s request, be exempted from the application of the legislation of the United Kingdom provided that person is not subject to the legislation of the United Kingdom on account of pursuing an activity as an employed or self-employed person.”.