claimant Polish, in UK since 26.9.05 partner Algerian, in UK since 12.12.08
worked from 29.9.05 to 3.10.06 for employer 1, registered this on 5.4.06
employer 2 from 4.10.06 28.2.07, registered 21.11.06
issued with UK residence documentation for an national of an EEA state on 10.1.07
worked for employer 3 p/t from 17/3/07 to 19/4/07 –not registered as she had received blue card by then
employer 4 10/4/07 29/2/08 –not registered
worked for employer 5 since 3.3.08 still unemployed on maternity leave
HMRC refuse to pay child benefit on the grounds that client does not have the right to reside because she has not completed 12 months under the registration scheme. They say that the residence card should not have been issued and does not help her for claiming CHB. They are quoting SSCBA 1992 s 146(2),(3) and 147(1), and the ChBen Regs re 23(4), and the Accession (Immigration and Worker Registration) Regs 2004
This is going to a tribunal now. The Child Benefit regs say that a person should be treated as not being in GB where the person does not have the right to reside.
I was going to argue that (prematurely or not) the residence permit has been issued, is valid and gives her the right to reside as a worker, which she is, as she is still employed (although on maternity leave). There is no evidence that the Home Office have said that the permit should not have been issued, or that they are trying to revoke it.
IMO, it is not for HMRC to decide whether a residence permit should or should not have been granted, and I don't think they should look behind Home Office decisions, otherwise they might as well start checking grants of refugee status, indefinitely leave or whatever. As far as I know, the appellants in the CDs holding that the 12 registration requirement must be complied with did not have the blue card
What do you think - can she rely on the permit? And am I right in assuming that someone still employed but on maternity leave still counts as worker?
Thanks for any comments
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