Failed HRT test

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    I have a claimant who has failed the HRT test so she is unable to claim UC. He reconsideration has been refuesed and this is going to appeal. The claimant is Slovakian and is subject to the HRT test. She is 18 has been subject to a full care order since 2019 and is being supported by next steps until she is 21.
    she came here with her parents when she was 12.
    and has been with the authority since 2018 and the local authority had parental responsibility for her. She has presettled status until 2026. She states her parents have settled status (UC are saying this cannot be derived) but she was unable to apply for it due to her age.
    She failed the HRT test. She is registered with a GP in Salford and has been at school/education here. she states she has been here since she was 12. UC have stated that she does not have right to reside through her parents. claimant has not worked is caring for her mother.

    Not sure what to advise her. She states that she has submitted an appeal but at the moment she has rent arrears which are increasing as she has no income.

    Peter Barker

    1. Being a child should not have prevented her from obtaining settled status. Children are eligible if they have lived in the UK as an EEA national for at least five years in exactly the same way as an adult. I suspect the problem might be that she was unable to evidence residence before she was taken into LA care. If she can gather evidence to show five years’ UK residence she can have another go at upgrading to settled status.

    2. She cannot derive a right to reside from her parents’ settled status, as settled status is personal to the holder and does not rub off on anyone else. But she might have a right to reside based on the parents’ preserved EEA residence status – they can have that as well as settled status. Possibilities are:

    – one or both parents has a permanent right of residence based on five years as a worker etc; or
    – either parent is a worker etc now. As she is under 21, she counts as a family member of her parents despite being estranged from them, or one of them. She doesn’t have to be dependent on them until she is 21, and by that time she’ll be home and dry with settled status anyway.
    – although DWP are staying decisions on cases that turn solely on this, people with pre-settled status cannot be refused social assistance if to do so would prevent them from living in dignified conditions. The Court of Appeal recently dismissed the government’s appeal against a UT decision on this subject, but a Supreme Court appeal might still take place and in the meantime these cases tend to get held up. But hopefully she can establish a right to reside by one of the more traditional routes referred to above and get the UC decision overturned.

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