EU family member estranged due to domestic violence

We have a client who is a Nigerian national, married to an Italian national.  She came to UK in July 2011 to join her husband, who had been here already for one year.  She brought their 3 children with her (aged 10, 6 and 2; all Italian nationals).  She was staying here on EU family permit.  She was recently given 5 years leave to remain. 

The couple recently seperated due to domestic violence.  Charges have been brought and the husband has conditions attached to his bail stopping him from coming to the local area.  Our client claimed IS but failed right to reside as she was unable to provide documentation regarding any work her husband has done (he has worked in the UK).  We are going to appeal and argue that the onus should be on DWP to establish facts due to circs.

The real concern is that our client has no income and is living off social services support.  Has anyone got any tactical advice?  Should our client claim JSA whilst appealing IS as this will be more straightforward?  Could she get interim payments?  CB and CTC are dragging their feet.  Will they be awaiting decision regarding right to reside?

Any help would be much appreciated.

Is your client an EEA national, or a Nigerian national, as her rights to benefit will be different depending on which is the case?

If she is an EEA national, I would advise a claim for JSA pending appeal, as this would confer Right to Reside (as a “workseeker”, under Article 39, EU Treaty) for HB/CTB, Child Ben and Child Tax Credit. Only problem would be that she must meet the JSA qualifying conditions.

As a Nigerian national, her right to claim benefits would depend on her immigration status (ie what type of leave to remain she has).

Our client is a Nigerian national but her immigration status is that she has leave to remain as a family member of EEA national and derives treaty rights from him.  So to be entitled to IS, for example, she has to show that he has worked / been self-employed.

See Kerr v Department for Social Development (HL) 2004 at paras 56-62, particularly 62 which states:

“What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced”.

For instance, request that the DWP contact HMRC.