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EEA National no longer self Sufficient
Hi can some one help?
I think i am right but want clarification.
Client is a Dutch national; she has lived in Holland with her husband since 1998. He had his own business in Holland, however the client has never worked, they have two children. Due to a breakdown in marriage the client’s husband fled to Pakistan.
Client came to the UK with her two children aged 7 & 13 in November 2010, client has never worked in the UK or Holland. She has been self sufficient from savings since coming to the UK. Client has found it difficult to find the children schools and they have yet to entre education in the UK.
Client has made a claim for CTC, CHB, HB and CTB. HB and CTB claim has been refused because client is no longer self sufficient.
Sorry so long winded…
Am I right in thinking that the client is not entitled to any means tested benefit in her present situation? She has no family in the UK. If client finds genuine employment (maybe part time) then she can claim in work benefits, for example HB, CTB, CTC, WTC, and CHB?
Difficult one, even if you wanted to go down the route of self-sufficiency she may/will require medical insurance[Some views are that this is not required], and not be a burden on the member state she is in. For me it’s one that is more of a judgement call by the decision maker. You could consider the fact that the EEA national has been in the member state for about 6 months without claiming anything and that she is not a burden at this present time. OR it could be considered that she is actually not exercising treaty rights so can’t have a right of residency. I think the starting point is to register as unemployed, apply for JSA, appeal the HB/CTB refusal and then take it from there. If CTC is awarded check on what basis HMRC considered her right of residency.
I thought that she can only claim JSA in the first three months of being in the UK and as she has never worked she would not have the right to reside?
Our information system states that to have the right to reside she has to be a qualified person and to be a qualified person a person has to be a worker, self employed, self sufficient etc. It does not say ‘work seeker’. Maybe I have missed something?
If she is now relying on benefits then she is no longer self sufficient?
Sorry I am going round in circles!!
Sorry, did not explain properly. There is no right to reside for the first 3 months an EEA is in the UK unless theyr are a “work seeker” on JSA(IB) or a “qualified person”. If the DWP award JSA(IB), they MAY do this based on self-sufficiency as she has been here for over 3 months, then she is passported on to CTB/HB even though she is a “work seeker”. The fact she is claiming benefits, in itself, does not have anything to do with self-sufficiency.
An EEA national cannot claim JSA in the first three months because they usually fail the physical part of the Habitual Resedency Test as they have not been here long enough to establish an intention to settle and remain in the UK.
Thanks guys,
So my client should be entitled to JSA based on self sufficiency in the last 3 months?
I’m getting them all this afternoon…just had another one, which seems to be really complicated!! I have no RTR for months and two come along together!!
German national been here since 2003, never worked in the UK, but worked in Germany for 4 years continuously. However, she was imprisoned because she brought an illegal immigrant into the UK. She was sentenced in 2009 and released in January this year. Client was receiving all benefits before she went to prison. She has non dependants but also a dependant under 7 years.
Client made a claim for IS but been refused, although she is receiving CTC CHB and HB & CTB??? Apparently she has a solicitor dealing with a case, which is threatening to deport her back to Germany…something to do with not exercising her treaty rights??
However, this should not impact on her right to benefits should it?
However, this should not impact on her right to benefits should it?
I’m not quite sure how she has been able to claim CTC, CHB, HB and CTB. Can’t see how she has a right to reside especially as she was in prison for a period because she could not have been exercising treaty rights at that point. There are decisions, immigration caselaw, that have pointed this out.
An EEA national cannot claim JSA in the first three months because they usually fail the physical part of the Habitual Resedency Test as they have not been here long enough to establish an intention to settle and remain in the UK.
I agree it’s only HRT that applies for the first 3 months and not R2R but that’s not a bar to JSA(IB) entitlement. All the claimant needs to show is a genuine chance of being engaged in employment and intenttion to settle.
[ Edited: 18 May 2011 at 06:21 pm by chacha ]Think some further clarification is needed in this discussion.
Article 6 of EC Directive 2004/38 gives all EU nationals an initially right to reside for 3 months, regardless of what they are doing in the member state. However, the individual UK regulations of the means tested benefits to which the HRT applies specifically exclude this from coming within the meaning of having a right to reside for the purposes of establishing habitual residence - for example see IS Regs 21AA(3)(c). As such someone with only a right to reside on this basis cannot claim means tested benefits. However, for CB and CTC the claimant only needs a right to reside, there is no HRT and no exclusion of a right to reside under Article 6 and so these can be claimed during the first 3 months of residence by any EU national.
If someone needs to claim a means tested benefit prior to the end of the initial 3 months right ot reside, they need to be a qualified person (those categories found in Article 7 of EC Directive 2004/38). However, the need to be self-sufficient or the student conditions generally excludes those categories (although there should be some flexibility - see the recent rewording of reg 4 of the EEA regs 2006 by SI 1247/2011) and workers and the self-employed (and their family members) are exempt from the HRT (ie IS regs 21AA(4)(a), (b) & (d)) so can claim from day one. Work/jobseekers aren’t specifically covered in the Directive but are included in the UK Regs (EEA Regs 2006 reg 6) as qualified persons and the Treaty on the Functioning of the EU Article 45 covers the freedom of movement of workers, which caselaw has subsequently clarified. As such, jobseekers have a right to reside if they have a genuine chance of being engaged, need to register as jobseekers to establish this right to reside (ie claim JSA) but through the regs for individual benefits are excluded from claiming all the means tested benefits other than JSA (ie IS Regs 21AA(3)(b) & (d)) and anything that would then passport them to. Further, they are not exempt from the HRT, so additionally need to satisfy it “in fact” - as there is no statutory definition of habitual residence in the legislation it is a question of the individual facts of the case and through caselaw it has been establsihed that factors such as settled intent, length of residence and actual residence are factors, though none necessarily conclusive on their own. However, it has been held that the HRT will usually be satisfied somewhere between 1 and 3 months of taking up residence in the UK (see our handbook p1422-1423). Therefore, on the facts of a case, an EEA national who is seeking work could potentially satisfy the HRT on day one in the UK but is likely to need longer than this to show that they are in fact resident by habit (but not necessarily permanent settled intent) but this should not be a period of residence that is longer than 3 months.
Therefore an EEA jobseeker has a potential right to reside from day one in the UK, but is not necessarily habitually residence. As such, they should be able to claim CB and CTC straight away (or on the basis of an Article 6 right) and may be eligible for JSA from some time between then and 3 months of residence.
Think some further clarification is needed in this discussion.
Article 6 of EC Directive 2004/38 gives all EU nationals an initially right to reside for 3 months, regardless of what they are doing in the member state. However, the individual UK regulations of the means tested benefits to which the HRT applies specifically exclude this from coming within the meaning of having a right to reside for the purposes of establishing habitual residence - for example see IS Regs 21AA(3)(c). As such someone with only a right to reside on this basis cannot claim means tested benefits. However, for CB and CTC the claimant only needs a right to reside, there is no HRT and no exclusion of a right to reside under Article 6 and so these can be claimed during the first 3 months of residence by any EU national.
If someone needs to claim a means tested benefit prior to the end of the initial 3 months right ot reside, they need to be a qualified person (those categories found in Article 7 of EC Directive 2004/38). However, the need to be self-sufficient or the student conditions generally excludes those categories (although there should be some flexibility - see the recent rewording of reg 4 of the EEA regs 2006 by SI 1247/2011) and workers and the self-employed (and their family members) are exempt from the HRT (ie IS regs 21AA(4)(a), (b) & (d)) so can claim from day one. Work/jobseekers aren’t specifically covered in the Directive but are included in the UK Regs (EEA Regs 2006 reg 6) as qualified persons and the Treaty on the Functioning of the EU Article 45 covers the freedom of movement of workers, which caselaw has subsequently clarified. As such, jobseekers have a right to reside if they have a genuine chance of being engaged, need to register as jobseekers to establish this right to reside (ie claim JSA) but through the regs for individual benefits are excluded from claiming all the means tested benefits other than JSA (ie IS Regs 21AA(3)(b) & (d)) and anything that would then passport them to. Further, they are not exempt from the HRT, so additionally need to satisfy it “in fact” - as there is no statutory definition of habitual residence in the legislation it is a question of the individual facts of the case and through caselaw it has been establsihed that factors such as settled intent, length of residence and actual residence are factors, though none necessarily conclusive on their own. However, it has been held that the HRT will usually be satisfied somewhere between 1 and 3 months of taking up residence in the UK (see our handbook p1422-1423). Therefore, on the facts of a case, an EEA national who is seeking work could potentially satisfy the HRT on day one in the UK but is likely to need longer than this to show that they are in fact resident by habit (but not necessarily permanent settled intent) but this should not be a period of residence that is longer than 3 months.
Therefore an EEA jobseeker has a potential right to reside from day one in the UK, but is not necessarily habitually residence. As such, they should be able to claim CB and CTC straight away (or on the basis of an Article 6 right) and may be eligible for JSA from some time between then and 3 months of residence.
Thanks hkrishna!!
However, this should not impact on her right to benefits should it?
I’m not quite sure how she has been able to claim CTC, CHB, HB and CTB. Can’t see how she has a right to reside especially as she was in prison for a period because she could not have been exercising treaty rights at that point. There are decisions, immigration caselaw, that have pointed this out.
An EEA national cannot claim JSA in the first three months because they usually fail the physical part of the Habitual Resedency Test as they have not been here long enough to establish an intention to settle and remain in the UK.
I agree it’s only HRT that applies for the first 3 months and not R2R but that’s not a bar to JSA(IB) entitlement. All the claimant needs to show is a genuine chance of being engaged in employment and intenttion to settle.
Yes her Solicitor said that they are due to go to court next week. They are challenging something about exercising treaty rights and trying to stop her from being deported.
I know nothing of immigration and am very confused! Client is coming back on Monday and I was going challenge the case. She has worked for over 4 years without a break in another EU state and has live here and claimed means tested benefit since living in the UK (2003)…so why not now?
Sorry if I appear to be asking a silly question…