Can anyone tell me if i have missed anything.

My client came from Lithuania in June 2003. He came on a self employed visa. His partner joined him in June 04 also from Lithuania. They both were self employed and kept financial records. The partner became sick in June 2007 and has not worked since. She got DLA under special rules in September 08. She did not have enough NI for ICB. He claimed CA in Sept 08 and IS. Claim refused. We reviewed on the basis of 5 years here and partner of long term sick worker. It has just been refused again. I haven't seen the paperwork yet, the client is reluctant to appeal as his partner is now very sick. Does anyone know why they do not have rtr?

Fri 03-Apr-09 10:16 AM by past caring 2

What follows assums that the facts of this case would not give rise to any dispute as to either of this couple actually having self-employed status.

The problem is that on the facts you've given, their situation doesn't fall neatly within one of the categories of people with an automatic RtR - worker, workseeker, worker temporarily incapacitated who retains worker status. Neither, arguably, do either of them remain self-employed persons if they've ceased trading.

If she were single and claiming in her own right, there oughtn't to be a problem. The difficulty is that he is the claimant and has given up work to care for his partenr - there is no specific provision in the 2006 regs that covers this situation and allows someone to remain a "qualified person".

However, there's two potential ways forward.....

1) Art 16 of Directive 2004/38/EC provides for a right of permanent residence for those who have completed 5 years continuous residence. In CIS/4299/2007 it was decided that residence that had occured before the UK's implementation of the directive (on 30/4/06) could count towards that 5 years. On the basis of that decision, your (male) client would have a permanent RtR. However, the Secretary of Sate has appealed on the basis that only residence after the UK's impementation date counts towards the five years. The Court of Appeal has referred that question to the ECJ for a determination. Any appeal run on the same grounds is going to be stayed until the CoA give their decision (ie until after the ECJ give theirs).

2) I would take a look at CIS/408/2006. On the face of it, the "lacuna" in Directive 2004/38/EC identified in that case would apply even more forcibly to the circumstances of your clients as they are both EU citizens and have both completed substantial periods of self-employment in the host country.

I'd run both arguments.

Actually, sorry - forget the 5 years thing - it has to be 5 years whilst exercising treaty rights and as Lithuania didn't join until 1/5/04 any residency prior to that date doesn't count, regardless of the outcome of the appeal in CIS/4299/2007.

Your female client has a RtR under reg 5(3) of the 2006 regs (a self-employed person who ceases activity as a result of permanent incapacity) or under reg 6(2)(a) (temporary incapacity for work).

Your male client then has a RtR as her spouse or civil partner under reg 7(1)(a) - I'm not sure whether for the civil partnership proviso this needs to be a registered civil partnership, but I believe so.

Again, slightly amendment to the above - no requirement that the partnership is registered - evidence that the relationship is an enduring one will suffice.