3 queries-EEA Fam member/5 yrs perm res/unreas burden

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    I have 3 separate queries about PFA’s

    1) I have a Portuguese lady who is no longer working because she has had a baby. She does not intend to seek work again for 6 mths. I was not going to pay her because she was not self suff and I thought that a 6 mth claim was an unreasonable burden on the state. However, I have found out that her father is resident in the UK and he is a worker. I have asked for proof of his nationality, his payslips and her birth certificate. Is this sufficient for me to pay her? (I have only had one similar case in the past and for that one I had a passport stamped ” EEA family member” but being Portuguese I don’t have that this time)

    2) I know that when an EEA18 citizen has been here legally for 5 years they have permanent residence. But can anyone tell me what is meant by “legally”. Do they have to show that throughout the 5 year period they have been self-suff/working/workseeker/student? – (Adelphi were very vague when I asked them about this).

    3)The Adelphi have advised me that HB officers do not need to consider whether someone is an unreasonable burden if they are not self sufficient. They advise that unreasonable burden is a decision made by the Home Office. This seems to fly in the face of the guidance manual. Does anyone have a view on this?

    Sorry to ask for so much help, but can you reply even if you only have a reply on one of my queries


    1. If she can satisfy you that is dependant on her father (receiving a significant amount of material assistance) she can gain a right to reside as a direct relative of his in the descending line, aged over 21 but still dependant.

    2. This is the subject of a lot of recent output from the Commissioners. Summary of the latest position: the five-year test is satisfied if the person has been exercising a positive right under European law – worker, student etc. Being at large and escaping deportation while not actually falling into any of the positive right of residence categories is not enough (this is likely to catch a lot of East Europeans who arrived before 2004 as asylum seekers and were temporarily admitted without leave to enter). Pre-accession residence for A2/A8 nationals does not count.

    3. The “burden” test is applied in deciding whether someone is self-sufficient – they are not separate tests. A person has the right to reside as a self-sufficient person if s/he has sufficient resources to avoid becoming a burden. So yes you do have to consider whether someone is a burden, otherwise you cannot decide whether they are self-sufficient!


    Thanks for your response Peter.

    In query 1, my customer is 20 years of age. Does this mean that I can pay her even though her father is not supporting her?

    Question for all members – in query 2, do other councils insist on a permanent residence card, or do they try and get the customer to evidence the 5 year residence?


    In answer to your second point we do not insist on a permanent residence card (it is not an obligatory document, so our thinking is that it would be unreasonable to insist on it). If the person states they have been here (legally) for 5 years and can evidence that in someway, then that is fine by us.

    In answer to your first point, no I do not think you can pay her on this basis. As Peter B has said
    [quote:a30b4d47b7]If she can satisfy you that is dependant on her father (receiving a significant amount of material assistance)[/quote:a30b4d47b7]
    You have stated that her father is not supporting her – therefore I cannot see how you could regard her as being dependant on him. 8)


    Peter could you post the reference of the commissioners decisions in relation to the 5 year residence.

    Many thanks

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