Help – Article 16

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    I would really appreciate any help that I get ask of you on this on – PFA’s not my strong point.

    We have a Portuguese Nation who moved her in 2004, late got married and who worked on and off. Due to domestic violence has left her husband and is in receipt of CB and Child TAx Credits only – IS refused.

    We refused HB under regulation 10, I have also read Abdiahman and Kaczmarek and was happy that she fails to qualify as as not self sufficient etc. My problem is Article 16 of Council Directive 2004/38/EC – the five year rule. Our customer does not reach 5 years until June 2009, but I can’t see how reg 10 fits in with this “5 year ” rule.

    Were we right to refuse her and shoud we invite a new application in June 2009?


    The 5 year rule would give a person a permanent right of residence and exempt them from the HRT. Hwowever, simply being here does not count towards the 5 years. The person must be a qualifying person, or a partner of a qualifying person and based on what has been said she would not get this. Has she divorced the former partner? If not she is still a family member and if he is a qualifying person then she gets it based on this.


    Thank you for the swift response

    I believe her estranged husband is a british national who has been living in the UK and they married in the UK – so looking at Immigration ( European Economic Area) Regulations 2006 reg 9 deals with family members of United Kindom nationals and as as I read this would not apply.

    Happy to be proved wrong

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