Any help with the following would be much appreciated:

client came to UK in 1990 and states that she worked for periods between 1/1/90 to 1/1/97. She later separated from her partner and claimed Income Support as a lone parent from some time in 2000 to Feb 2008, when she strarted full-time work. At this point her HB stopped due to her earnings. After several months at work client had to quit due to to childcare problems. She made a new claim for IS, but this was refused as she was found to have no RTR. Client has appealed.

As far as I can see client was not a qualified person at time of claim, and she lost transitional protection when her HB stopped in Feb 2008. I argued that client should have a permanent RTR as she had worked for 5 years or more between 1990 to 1997. The DWP says it can only consider residence/qualfied person status as far back as 2/10/2000, under the EEA Regs 2000. UK residence prior to this date cannot be considered. Client does not therefore qualify as she was on IS from 2000 onwards.

Is there any other way of arguing for permanent RTR?

Thu 14-May-09 02:47 PM by CraigM

Hi there,

What EEA state is client from?

You are right to argue that client has permanent R2R as was ‘legally’ in UK for a continuous period of 5 years from the period of 1990-1995/8, however, this would depend on two things the decision from the ECJ as the CoA has referenced for a preliminary ruling asking whether the period of ‘legally’ being in UK – exercising treaty rights has to be after the date of the implementation of Directive 2004/38 or not.

Secondly if your client is an A2/A8 national then they will not have been exercising treaty rights in 1990-1995/8 as they were not EU nationals.

When you appeal the decision you will likely have to wait until the preliminary ruling has been given by the ECJ on the matter.

You could also argue that client has right to reside as she is a primary carer of child i.e. the Baumbast case, though it does not appear to be working now, but still worth a go.

Regards

Thanks for your reply, client is from Spain, so no issue RE A2/A8. Sorry to ask, do you have the CoA case ref?

Kind regards

Secretary of State for Work and Pensions v Lassal

Regulation 14(1) of the 2000 regulations states “a qualified person is entitled to reside in the United Kingdom, without the requirement for leave to remain under the 1971 Act, for as long as he remains a qualified person”.

The 2000 Regulations were revoked in their entirety by the 2006 regulations. However there is a savings provision in the 2006 regulations in schedule 4 paragraph 6, which states “any period during which a person carried out an activity or was resident in the United Kingdom in accordance with the 2000 Regulations shall be treated as a period during which the person carried out that activity or was resident in the United Kingdom in accordance with these Regulations for the purpose of calculating periods of activity and residence under these Regulations”.

So my view is that a period where a person is a qualified person can begin before October 2000, which is when those regulations came into force, in calculating the five years.

I’m not sure I understand the CA’s reference to the ECJ but, then again, I’ve not read that case. Obviously, I’ll need to rectify that.

It is all a question of whether you can on have legal status for a continuous period of five years which ended prior to 30 April 2006. By linking such times (prior to 30 April 2006) to other Community law instruments conferring rights of residence on workers.

Regards

Thanks for that.

Yes may thanks.

Most of the discussion around the kind of residence you need for the 5 years has been about whether you need to be exercising treaty rights etc (as mentioned above).

But do the domestic regulations truly reflect the intention of the Residence Directive? CIS/185/2008 (decided 11.8.2008) suggests that the domestic regulations do not give full effect to Article 16(1) of the Residence Directive, where the cited test is ‘resided legally’. Here it is…

‘Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.’

This case suggests that simple residence under domestic law may count (ref support from the Sala and Trojani cases).

I suppose this will be resolved by the pending case law, but it is generally interesting how much the domestic regulations stray from the very Residence Directive that created the need for those regs in the first place! Its worth checking the discrepancies in any particular case, because this may be an easier battle to fight, than the normal appeals to Article 18 etc.

Whilst we are on the subject, case law seems to suggest that that if you have to exercise treaty rights, you must do it absolutely continuously for 5 years (save for the regs allowing you to be abroad for a while). Seems a very harsh provision, if true. Any views?

Steve