Divorced A8 citizen with British Children

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  • #35424
    MrsGosling
    Participant

    Hi can anyone please help me with a case.

    I have a Polish lady who came over in 2003 and married a British Citizen. They have 3 children together all of whom are school age. She also has 1 Polish child. In 2006 following domestic violence she divorced her British husband and she has no idea what he is doing now although he was in prison when she left him. She previously has been in recipt of Income Support. This stopped and she worked for 5 months unregistered as she was told she didnt need to register, and she is now claiming benefit again as she is no longer working.

    She has been refused IS as she has no right to reside and out assessors made the same decision. She has now appealed this decision. Does she have a right to reside as she is supporting 3 British children or does this not qualify her and can she be entitled by some other way.

    Any help would be great as I dont know what to do with this one. Thank you

    #99302
    Kay_Tade
    Participant

    What has she been doing between 2006 and 2009? Did she not gain citizenship whilst married?

    I think she may have R2R under another guise but she will not be entitled to I/S because she is supporting 3 British children.

    #53671
    MrsGosling
    Participant

    When she first moved to our area she claimed income support and it was awarded from January 2007 (she moved December 2006) and she was entitled to Income Support until 02/11/08.

    She then started work in November and ended her employment on 06/04/09. and has reclaimed Income Support

    #99303
    Anonymous
    Guest

    Do you know what kind of leave she had under domestic immigration law back in 2003? If she was granted indefinite leave, that is something she has for keeps and she doesn’t need to rely on her status as an EEA national.

    #53673
    Kay_Tade
    Participant

    That’s why I can’t understand how she is not now entitled to I/S, I can’t remember at the moment but I think there was a change in the regs that she might have got caught up in(but still this would be the 2006 regs, I think) so may have previosuly been entitled to I/S but not now??

    #53674
    MrsGosling
    Participant

    She had leave to remain for 6 months from 1 January 2003 but with no work or recourse to public funds, however thats the only stamp that has been photocopied of her passport.

    #99304
    MrsGosling
    Participant

    sorry leave to enter not remain

    #99305
    Anonymous
    Guest

    If she was told by the Home Office that she did not need to register her employment, that strongly suggests that she was granted further leave after July 2003 – it suggests that she had current leave that authorised her to work (and ILR would do that) on 1 May 2004. Perhaps she could let you have another look at all the pages in the passport.

    Alternatively, you could take the view that she retains worker status now, having been a worker and having tried to register herself with the employment office by claiming IS, but you would need to be satisfied that she is realistically looking for another job that will be effective and genuine. She might not be.

    She could apply to the Home Office for ILR, as a non-European in the same circumstances might well stand a good chance of getting it. But that will take time and she is left stranded in the meantime.

    The final option, one which should not be used casually, is to say that these exceptional circumstances could not have been foreseen by the legislators when Directive 2004/38/EC was being drafted – it is an unintended “lacuna”. The reason for reaching such a conclusion would be:

    – If she were divorced from an EEA national in similar circumstances, she would retain her right to reside by virtue of article 13
    – If she were not an EEA national, her divorce in these circumstances would probably entitle her to ILR under British immigration law. She could probably get that anyway, but at this moment she has not
    – Therefore under Article 18 of the EU Treaty she has a right to reside directly, and bypasses the limitations and conditions in the Directive. See CIS/408/2006 for an earlier instance of this.

    The more recent Kaczmarek case cautions against liberal use of Article 18 to get around the Directive, but this looks to me as if it might be one of those rare deserving cases.

    #99306
    MrsGosling
    Participant

    Thanks Peter. You were here doing our training on this on Monday so how funny I should come across a case so soon.

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