A8 national failed right to reside test for IS claim

hi there

i am working with a young girl from Lithuania. She came to UK in Jan 2012 (age 17), and originally lived with 2 men (states no relationship). She came to the attention of my service when she was approx 36 weeks EDC and by that point living alone. A claim to IS was made- this ended up being for a 3 week period only as her boyfriend moved in with her and he was a worker also from Lithuania

The claim for IS has just been refused (taken from June to October to make decision) on grounds she has failed right to reside test using the following regs:

Reg 21 AA(1) and (2) of IS Gen Regs 1987

Reg 6 of Immigration (European Economic Area) Regs 2006

Once partner moved in a claim for HB/CTB/CHB and CTC was made - he was working 18 hours only and she is studying at college- doing full time ESOL course.

He has now ended his work (states was sacked?) and a claim for JSA has been made.

My queries are:

Can anyone see any grounds for this appeal regarding IS? Ive read something about Article 12 of the EC but dont fully understand it!

Should I expect the same refusal on same grounds for the other benefits too?

Does anyone know of an argument i can use to get some form of interim payment of benefits whilst the appeal is being heard as im expecting it to take quite a while and they are really struggling financially. They have had some assistance from social services but this will not be frequent or continuous i believe.

thanks

Natalie

On its face article 12 has no application for the IS appeal.  He cannot get CHB and CTC for her if he is her partner.  When did his recent period of work begin?  You can only get an interim payment while waiting for a claim to be decided and then only if it is likely that the claim will succeed.  Has she any family and if so where are they?

his period of working started he states in June 2012 and ended roughly 3 weeks ago. He is very vague about the date he came into the UK, would that make any difference?

Her family are all in Lithuania but it doesnt sound like they are contact at all due to a breakdown in relationship.

What would you suggest doing/trying then as it is the first time ive had a situation like this?

thanks

The JSA should be fine - A8 nationals no longer have to do the 12 months registered work and the partner is a workseeker and so should have a RTR. This should passport the partner to full HB/CTB. I’m assuming that the CTC/CB claims are for your client’s new baby. Your client should be able to claim for CB in her own name as it does not have a HRT. Her partner should be able to claim the TCs for the couple in his name.

One thing that I am not sure about is whether the JSA will be paid at the single person rate or the couple rate? My view is that as your client is not married, she does not have any RTR of her own unless she can be issued with the documentation to confirm that she is an extended family member (partner of EEA national and in durable relationship). I’m not sure what happens with joint claims where only one member has RTR - I know that in comparable situations where one member of the couple does not have immigration status they only get the single rate.

So pursue these claims. Maybe apply for one Crisis Loan to get the family through the wait for JSA (note that the Social Fund may initially reject this application as JSA not processed and they state no RTR - appeal this as entitlement to JSA is not a requirement of being treated as a Jobseeker - just the strongest and simplest evidence available). Keep the other two CL applications in hand for emergencies and look at solutions outside the benefits system such as Social Services assistance, educational grants, loans from friends. Otherwise they are going to have to try and make the JSA last between them and wait for the CB and CTCs (which will be backdated remember).

The IS claim looks a no-goer on the info you’ve given. The only possible solutions I can think of would be if she was working before she claimed and either stayed on the companies books on unpaid maternity leave or had to leave work because of a pregnancy related illness.

She moight be ok for a right of residence, and thus to be included in his claim, under article 3 of the EC Directive as his partner if they are “in a durable relationship, duly attested”.  The problem as Sam says could be with documentation.  For JSA there are going to be issues around sanctions if he was sacked for misconduct.

just received a letter from clients partner stating he was not being paid a living wage (think it equates to £4.80 per hour and he is over 25), plus his boss was being awful to him so he chose to leave instead which of course will bring up a whole host of other problems with the JSA!

the client has never worked in this country, there was a query if she had been brought over here to try to get her involved in unsavoury acts but this has never been proven one way or another by social services and she wont disclose anything except she was being funded to live by two men from Jan to June 2012…

thanks for your help in this!