right to reside - 24 years in UK, not worked now separating and moving out with kids

I am hoping someone can help me out. I am not good on r2r and think this client misses out at each turn but hoping to be told I am as bad as i think…

French national has been in UK 24 years, living with partner but not married.

She worked very briefly during this time and signed on for a short time in 1991/2 but essentially has been maintained by her working partner. They are now separating and she needs in particular to claim HB and CTC.

She is primary carer now for their 2 children age 9 and 12 who are French nationals.

I have looked at permanent residency obviously but the only one that seems possible is self-sufficiency but health insurance, not even a bit of BUPA, they were registered with GP in the normal way.

She can’t get it as worker as she hasn’t been?

Am I right in thinking she can’t get it as a family member because they weren’t married?

It seems to me she only has a derivative right as primary carer, which as things stand doesnt help her for HB and CTC?

I have advised her she needs to work once they separate and though self-employment is her intention, its not immediately possible. Can anyone think if there is anything else or confirm if this is about right? She is moving out of the former home and into rented accommodation with the children in August, so needs to be acble to claim HB asap, so not interested in something that needs battling through the courts!

Also, if getting a job is the answer, I assume it needs to be 16 hours pw?

Thanks in anticipation

Does she have an EEA family permit, residence card or registration certificate? If so, she would count as a family member (not sure if partner has to be exercising Treaty rights as well) and would have perm RTR.

I take it the work was carried out also in ‘91/‘92? i.e. before her kids were born?

As for starting work/self-employed activity, it does not have to be 16 hours to classify as ‘genuine and effective’ for EU law purposes. The CJEU has held that the number of hours, the amount you earn and the fact that you would not be able to survive on your wage alone are not determinative. It’s whether your work is more than marginal and ancillary. In one case, a piano teacher who worked something like 10 hours per week and supplemented his income with benefits was enough and there was another where 5.5 hours work was held to potentially be enough.

The LA/HMRC may try and apply the governments guidance (‘threshold’) on assessing whether the work is genuine and effective, i.e. £153 per week for the last 3 months, but they should not turn your client away just because they don’t earn this. There has been no change in the law on this. I’m not sure what the authorities are doing yet but I’ve heard some are granting a HB and asking claimants to supply earning details for 3 months.

Finally, there is an argument to be made that you don’t need private health insurance to get the self-sufficiency RTR but that won’t be an easy one.

And just FYI - it’s only Zambrano carers who are excluded from benefits. Other derived RTRs are still good. Your client cannot be a Zambrano carer as she would not be required to leave the EU. If her kids had been resident here at a point whilst she was working, she would be a Teixiera / Ibrahim carer which would give her the necessary RTR.

I think you’re right though that starting self-employment would be the way forward for her. Just need to make it clear that her work is genuine and effective as I don’t know how DMs are going to react to the government’s ‘threshold’.

Has anyone else seen any cases affected by this?

Matt

Thanks for your reply Matt. She slips through everything, so it seems some work is the only way to get the HB, but thanks for reminder it isn’t set at 16 hours. She has various points in her favour for arguing less work can be genuine and effective as aiming to become self employed, will receive child maintenance so not reliant on benefit etc.

She is understandably surprised she probably won’t get HB without a fuss after all these years, which is her worry moving into private rented accommodation.

Ellie

For the avopidance of doubt, Matthew is saying (correctly) that she can claim HB and CTC if her only right to reside is a derivative right based on her children being at school.  To have such a right she needs the children’s father to have been an EEA worker in the UK at some point during their lifetime.  Is that the case - is he French as well?

No, he is British

ellie - 06 August 2014 10:55 AM

No, he is British

if father is british, and children are born here (which is implied) are you absolutely sure the children are French?

whilst I’m no sort of expert and it’s not my field, that doesn’t sound right, really

It’s quite likely that the children are British and French, but that’s not going to assist her: the European parent of a British child has no derived rights through the children.

So I think you have ruled out all the possible options for her having a right to reside based on her history, therefore she is going to have to get a job or start a self-employed business by the look of things