Genuine and sufficient link to Scotland

There is no statutory definition of a genuine and sufficient link to Scotland. There are common factors to take into account in assessing an individual’s link to a place. However, these are neither prescriptive nor exhaustive.

The requirement for a genuine and sufficient link to Scotland applies to applications made both from abroad and from within Scotland, provided that the individual making that application is within scope of the coordination rules. It is not required in any other context.

The factors to consider include whether the individual:

• has spent a significant part of their life;
• works, or has previously and paid social security or tax contributions;
• has any bank accounts or other financial products;
• has the right to any rented or owned property;
• has any family members living in the place in question; and
• has frequent contact with those family members;

in the place in question.

The purpose of testing an individual’s link to Scotland is to establish if Social Security Scotland or the DWP should deal with their application, where the UK is the competent state for paying that person’s benefits. When an individual cannot demonstrate this genuine and sufficient link, their application should be denied.

The aim is to test for both a:

• factual and hence ‘genuine’; and
• sufficient, which is more than incidental or minor,

connection to Scotland.

The decision maker must take into account all relevant evidence that is established. Such evidence may include:

• the relationship between the applicant and the host Member State;
• family circumstances; and
• other personal circumstances (Kavanagh & Mohamed v SSWP [2019]).

Relevant to the question are both objective evidence and the subjective intentions and motivations of the individual. The Court of Appeal has previously said: ‘…in assessing whether such a genuine and sufficient link is established, objective evidence of the link is plainly critical but evidence of the motives, intentions and expectations of the applicant are not to be ignored if they are relevant to proof of the link and are convincing.’

It is anticipated that some cases will require closer scrutiny than others. For example, an individual who spent their entire working life in Scotland before retiring to Spain or someone who is currently working in Scotland are good examples of a clear genuine and sufficient link. More detailed enquiries will be necessary in cases where the facts are less determinative. This is when the subjective evidence described by the Court of Appeal becomes more relevant.