GPoW and Polish woman fleeing DV

Tenant came to UK in mid 2008 with partner and 2 children. 3rd child born later in 2008 in the UK. Fled partner earlier this year due to DV and claimed JSA, CTC and HB in her own right.  JSA (and therefore CTC and HB)  has just stopped after 3 months as DWP say no genuine prospect of work. As far as I know her partner is still working. She has worked in the past but I don’t as yet now for how long.

It’s ages since I have dealt with this sort of case but my initial thoughts are that as she has been in UK over 5 years she has permanent residence and therefore the issue of GPOW shouldn’t apply? She should get JSA and other benefits with no restrictions?

Any thoughts or suggestions for what further details I need to check would be gratefully received.

Is she married?
Is/was the partner a worker (employee) as distinct from self-employed?
And presumably at least one kid still school age?

It’s not just presence in the UK for 5 years or more that she needs for a right of permanent residence, but five years whilst exercising some sort of EU Treaty right - i..e. worker, jobseeker, family member of someone exercising a EU Treaty right.

Short of that, it looks like from the age of the youngest child she should at least of a right to reside as the primary carer of a child in education. That isn’t going to mean that she could claim IS rather than JSA, but it does mean that the GPoW test shouldn’t apply.

I don’t think she was married. All 3 children at school in UK. I think he has always worked and she has on and off over last 8 years
but need to check.

Thanks

The first problem is to stabilise the situation. Such clients in these situation face the worst with agencies simply refusing to give any ground leading to no income and potential eviction despite the threat hey face. It is criminal

However your client should try to change her status to self-employed or employed as this would bring her within I(EEA) Regulations as a qualified person and she could make new claims. Any work does not have to be FT just not marginal and ancillary. There is discussion on this at page 1538-1539 in CPAG.

They seem to be saying she is a Jobseeker so you need to try and identify other arguments and grounds to argue she is a qualified person with another status under I(EEA) Act.

You can challenge the decision to refuse your client JSA. Whatever status you can argue the difficulty will be evidence to support the MR/appeal particularly from a violent ex-partner. This will not be easy but some suggestions could be to

Get the department/HMRC to check its records of client and ex-partner under

• Kerr (AP) v Dept of Social Development Northern Ireland where it was reported at paragraph 15 that stated a claim was a fact finding mission to which both the claimant and the Dept must contribute and make enquiries to supplement the information submitted. 

• If they refuse to help you can argue that your client can side step the evidence requirement for claims under SS (CP) Regulations 1987 reg 4 (1B)

If your client worked as an A8 EEA National but did not register with the Worker Registration Scheme and she has proof of at least month paid work she will have a derived right to reside as a primary carer of a workers child in education under DJ v SSWP [2013] UKUT 113 (AAC).

She can also apply for assistance to the LA for assistance under the Children’s Act but they should take advice first.

None of the above is easy and any appeal will be protracted.

Good Luck

If no other rtr can be establish such that GPOW show not apply (eg no primary carer or permanent rtr), then take a look at these:

http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=4931
http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=4880

Basically saying that ‘compelling evidence’ can mean no more than ‘balance of probabilities’. Means GPOW guidance too narrow and that while the passage of time might be a factor it does not mean in or of itself someone doesn’t have a genuine chance of finding work.