I think I know the answer to this one already and it doesn't bode well for my client. Just looking for another opinion.

I have a client who is from the Czech Republic. Came to the UK 10 years ago as a student. Met a guy in the UK and married him.

The Husband has always worked in the UK and never exercised a treaty right in another member state.

My client, the wife, has never worked in the UK, never completed the workers registration scheme. She was in receipt of carer's allowance for a couple of years though.

She has 3 kids to her UK husband is pregnant with the 4th. Kids are 5, 4 and 2 years of age. 5 Year old is in school.... does this make a difference?

Anyway, they've split up and she's now in a refuge. She has no income, husband pays nothing. Client has applied for and been declined income support, HB Ctax Ben etc.

Client wants to appeal the decision.

Thing is, I don't think she qualifies for income support and given that she has never completed the 12 WRS my thinking is that she won't even qualify for JSA.

My client can’t afford to apply for Permanent Residence.

I've read through the Ibrahim and Teixeira cases and don’t think they apply to this.

Can anyone offer an opinion?

Would article 12 1612/68 help?

This is something that i've found in a training pack from CPAG that i've kept and appears to cover the children of workers or former workers and the right for their carer to be given right of residence while the child's in education?

The info also quotes Tashaia & Lambeth.

Hope this helps and sorry if i've sent you on a wild goose chase - immigration is not my "thing."

Nicky

Thanks for the reply Nicky. Don't think I can use anything in that though as my client has never worked in the UK.

I'm pretty much sure we''re on a lose / lose with this one!

Clutching at straws here......could the Husband be the worker/former worker or does it have to be the carer?

I dont think it matters but the point is that the husband is not an EU national nor worked in another EU country so will not count as a migrant worker.
One possible avenue is to check what her status was before accession on 01/05/04 - if she was legally in UK and had the right to work at time of accession then she is not subject to WRS anyway - see Accession(Immigration and Worker Registration) Regs 2004 Reg 2.
Apart from that I cannot think of anything and agree it does not look good apart from that she consult a family lawyer for maintenance issues and start work. The Borders Agency will accept work of at least 10 hrs pw for registration and once she has a WRS certificate then she is entitled to IS whilst working for 10 hrs provided her earnings are below her applicable amounts.Provided she is in registered employment then she counts as a person who can claim IS- see Reg 21AA(4)(f)(i) of the Income Support (General) Regulations 1987 (SI 1987/1967).

You might then be able to try arguing that she is still in registered employment whilst on what would be unpaid maternity leave (depending on when baby is due and possible entitlements to SMP and MA) - if her employment is not terminated, or if she registers the work with an agency rather than a specific employer and stays on their books

Self-sufficient as being supported by her husband? The recent cases have thrown the "medical insurance" idea out and her husband as British national didn't need it anyway. Did he work throughout the marriage or have there been periods of benefit depndency?

Nother question. She was a third country national when she came to the UK. What was her immigration status immediately before accession: did she go through the procedure of getting a spouse visa and then indefinite leave to remain? Or was she (shock horror) an overstayer from say leave to enter as a student?

Fri 09-Apr-10 08:15 AM by Jmac

Hi Guys,

Thanks for the replies, all good stuff!

Ariadne2: The husband worked in the UK the UK but had an accident and began claiming Incap Benefit and DLA. She claimed carer's allowance for him!

I don't know what her immigration status was prior to the ascension. I do know that she has never applied for ILR. I'll check this out with my client. Thanks!

presumably she has residence and their dad has contact?

There's a thought in my head that there could be a HRA argument here...(the alternative being that she's forced to go back home and leave her children here with their father, thus depriving her of family life and children of their mother) mmmm

and after the general election, worth involving the MP in the case . ... s/he will be able to help with representations on the immigration front

family lawyer, immigration lawyer

and of course if she's no money, she qualifies for legal aid/legal help