Terms & Conditions

[dexy1]

We have a claimant & family who has recently come to the UK from Hungary in September 06(A8 States – EEA acession states).

A claimant with a partner and two children, is currently at university doing a full-time degree course.

The claimant becomes self-employed during his course and makes a claim for Benefit. The partner is not working (currently thinking of becoming self-employed).

Am I right in thinking, that because the claimant has become self-employed during his course that he loses the right to reside without a HRT.

The HB/CTB A9 circular shows claimants that are A8 Nationals, that are self-employed and are an inactive person (i.e.student), do not have the right to reside.

Any help would be greatly appreciated.

Al B

[Anonymous]

As a student, he has the right to reside if he has comprehensive medical insurance and has given an assurance to the Home Office that he will be self-sufficient. This will do for HB/CTB, provided is actually habitually resident – which he might not be yet. By claiming HB, he may also be going back on his undertaking to be self-sufficient. The Guidance Manual suggests the issues you should be weighing in that respect, but I am coming round to the view of Ursula Brennan at DWP that these immigration questions are way outside our comfort zone and it is legitimate for a Benefits DM to assume the person is not self-sufficient; if they think they are, let them get a certificate from the Home Office to prove it – not your problem.

The self-employed work complicates things. Self-employed people from anywhere in the EEA have the right to reside for that purpose and they are fully exempt from the HRT. The question here is, would the Home Office now regard the claimant as having the right to reside as a self-employed person or is he still a self-sufficient student? Again, I am attracted to Ursula Brennan’s view that that’s his problem and if he does have the right to reside as a self-employed person he can get documents from the Home Office to confirm it. That would be a reasonable piece of supporting evidence for you to request.

Ursula’s approach is making more and more sense to me: we are not penalising people, we are just leaving it to the immigration specialists to make tough immigration decisions. After all, we don’t accept that an A8 national is a registered worker until we have seen the registration certificate, so why not request evidence to support other economic categories of EREA national? As an alternative less stringent evidence threshold, every government website with information for Europeans stresses that you must tell HMRC as soon as you start self-employed activity – you cannot leave it until the end of the year and declare the income retrospectively. If you fail to alert them in advance that you are self-employed, they will slap a £100 penalty on top of any tax you owe. It is implied in turn that the Home Office will not recognise your right to reswide as a self-employed person if you have not reported to HMRC. So the claimant might have an exchange of correspondence with HMRC, which you might oerhaps accept as evidence of a right to reside as a self-employed person.

[dexy1]

Much appreciated, Thanks Peter.

Regards,

Al

[mary]

I value Peter’s comments but there appears to be a flaw in his response to this query.

He fails to take on board the IND’s published instructions for European caseworkers (the actual decision-makers on these matters). The relevant para (Chapter 12 para 1.3 http://www.ind.homeoffice.gov.uk/documents/ecis/ ) reads as follows:

“EEA nationals who are in the UK as self-sufficient persons and students should be able to support themselves without public funds. Such persons are only able to claim public funds without losing their right of residence if they are able to demonstrate that they are not an unreasonable burden on the state. To establish whether an EEA national is an unreasonable burden on the state each case would need to be assessed on an individual basis. If the EEA national is claiming public funds after having been in the UK for some time, the fact that s/he had been self sufficient would be a factor in determining whether the burden is reasonable, as
would the length of time that s/he is likely to be in receipt of public funds. [i:0528e8e759]Although an EEA national in this situation would be regarded as having a right of residence even though s/he was in receipt of public funds, it would not be appropriate to issue him/her with a registration certificate.”[/i:0528e8e759] (My italics)

Whether the IND’s instructions accord with the relevant legislation is debatable but given these published instructions it is clear that a claimant’s failure to obtain a registration certificate in these circumstances is not evidence of no right to reside.

[Anonymous]

Thanks Mary. Hmmmmm.

That does seem to undermine Ursula’s approach, doesn’t it? It seems to be saying that EEA students/inactives whose history/predicted future of self-sufficiency is enough for them to keep their R2R during a benefit claim will not be granted a residence certificate. So sending them along to the Home Office won’t help, because the answer will always be No on the face of the documentary evidence.

Which would appear to put the ball back in the LA/DWP court, since no-one else appears to be in the habit of making a firm decision about self-sufficiency in such cases.

Before I pester Ursula again, is that how you read it too Mary?

[mary]

Peter – yes that is exactly how I read it.

I think you also have to bear in mind Article 25 of 2004/38/EC i.e.

“Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, [i:696b4fe530]may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality[/i:696b4fe530], as entitlement to rights may be attested by any other means of proof.”

[Author]

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