Terms & Conditions

[sharonwarner]

Hello!

We have a claim where we paid based on IS but this has now been withdrawn as the claimant has been found non HRT by virtue of not meeting right to reside criteria.

I have now had to write to claimant to explain decision but would like to refer her onto CAB with a copy of the relevant legislation.

Could anyone point me in the right direction please?

[mary]

Hi Sharon

Might be able to help – can you provide a little bit more information e.g. claimant’s nationality, background in relation to what they have been doing whilst in the UK?

[sharonwarner]

Hello and thank you for the reply

The lady is French and was living in the UK with her husband. She did not work but he did.

They have now seperated and she has claimed IS as a lone parent.

Wick have determined that she does not have the right to reside and so fails HRT. Our team didn’t consider this as her Tax Credit award letter said that she was getting IS and so we paid the claim without checking!

[Anonymous]

Are you certain she has no right to reside?

If she is still married to her husband, and he is still working in the UK, she may still have a RTR as a family member.

If he left the UK, she may still have a RTR as the person in custody of her husband’s child.

If they are divorced, she may still have a RTR as a former family member.

[Anonymous]

Your decision may be slightly premature I think. You don’t say what her husband’s nationality is, but assuming he is French too (or another EEA nationality) your claimant may still retain a right of residence for several reasons.

First, if he is still in the UK as a European worker, the fact that she is separated from him does not break her family member link as long as they are still married – the German case of Diatta was authority for the proposition that separated spouses retain family membership under the old rights of residence provisions and the wording of the consolidated 2004/38/EC implicitly takes that on board by referring to a spouse without further embellishment.

Next, if he has left the UK she retains her right of residence indefinitely, although it will only become an officially permanent right of residence if she becomes economically active. In the meantime she has a right to reside and can claim HB, as long as she is actually habitually resident. This is what Article 12 of the Directive says about family members who are EEA nationals (as your claimant is):

[quote:dda71972db][b:dda71972db]Retention of the right of residence by family members in the event of death or departure of the Union citizen[/b:dda71972db]

1. Without prejudice to the second subparagraph, the Union citizen’s
death or departure from the host Member State shall not affect the right
of residence of his/her family members who are nationals of a Member
State.

Before acquiring the right of permanent residence, the persons
concerned must meet the conditions laid down in points (a), (b), (c) or
(d) of Article 7(1). [/quote:dda71972db]

The UK Regs that import the provisions of the directive into UK law arguably do not properly cater for people mentioned in Article 12.1. But the way it is drafted, it looks to me as if a spouse left behind when the worker goes back home does not at any time lose their right of residence – they go into perpetual limbo unless they work/study etc and acquire a permanent right of residence after five years. Nowhere in the Directive does it make the Article 12.1 right of residence subject to any further conditions as far as I can see. See in particular Article 14.2:

[quote:dda71972db]Union citizens and their family members shall have the right of
residence provided for in Articles 7, 12 and 13 as long as they meet
the conditions set out therein. [/quote:dda71972db]

Finally, even if you are not convinced by my interpretation of Article 12.1, both Article 12 and 13 (and the UK Regs as well) make additional provision for people who are left with custody of children, especially school-age children. You say your claimant is a lone parent so she has at least one child. Can you provide more details of the child’s age and education status?

Of course, all of the above is irrelevant if the husband is not a European himself.

[sharonwarner]

Thank you for your replies.

We have only really cancelled the claim in line with Income Support as this was the basis for the claim.

My understanding was that if the claimant is an EEA national who is not economically self sufficient, they fail the RTR?

I am not 100% sure that I was aware that if she was married, albeit seperated to someone still living in the UK that this changed that as surely she is still an unreasonable burden hence the claim for Income Support?

[Anonymous]

The significance of the “burden” point is that two of the rights of residence that can satisfy the HB/CTB HRT contain conditions about not becoming a burden.

People who are economically inactive and who do not retain a right to reside by virtue of their own or someone else’s past economic activity only have the right to reside if they have sufficient resiources to avoid becoming a burden on the social assistance scheme, of which HB is a part. These are the so-called self-sufficient people.

To a lesser extent, the same applies to students.

Therefore, the right to reside as a self-sufficient person is incompatible with entitlement to a significant amount of HB for a significant length of time.

But that does not matter if the claimant has the right to reside under a different category without a self-sufficiency condition and separated spouses may well come under up to three of those.

It is extremely important that we know what nationality her husband has: if he is not European, her options are limited. If he is European, she may well be OK.

[sharonwarner]

Thank you Peter,

We don’t have any details about the ex husband other than his name. I will write to our claimant and ask for information!

Thank you!

[david kearney]

I have a very similar case to the above which i am now begiining to have severe doubts over. apologies for length. We had been paying a customer passported via income support. Following a joint investigation, income support is withdrawn (their words before anyone starts) from outset of claim because “you do not have the right to reside in the Uk in your own right. As you have claimed benefit as a single parent you were not a family member of x and should not have been paid income support.” We’ve mirrored this decision as economically inactive and no right to reside.
Customer is non-eu national with passport stamp and home office letter stating she has a right to reside in the uk with x who is EEA national exercising treaty rights…your only claim to remain in the UK is a the family member of x..
x seems to have disappeared shortly after cust arrived and she claimed and has been paid is and hb/ctb as a single parent for the last four years. JC+ have advised their error and we have classified as official error non recoverable.
appeal now received quoting diatta and stating x is working in UK and continuing to exercise his treaty rights (no evidence of this) and that as they are not divorced she is entitled to claim as the spouse of a eea national. Appeal hasn’t mentioned baumbast which i did think would be her only way round the eea economically inactivebut looking at this thread i’m not so sure. Any thoughts from the wise ones before i start trawling through case law?

[Author]

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