Morning

I wonder if someone can help with my query.

I have a 59 year old EEA national client who came to live in England in 1999 and worked up to 2004 when she claimed IB. Has now failed PCA and has Tribunal set for June. In meantime she applied for IS Hardship but was turned down as no right to reside.

I am wondering on what grounds we can challenge this decision in case IB is not awarded at Tribunal. Cosham have told me that they used 6.1 and 6.2 of Immigration Act and advised that she could not retain her R2R as her temporary incapacity is no longer temporary.

Any thoughts on how to tackle this would be greatly appreciated.

she came in 1999, worked til 2004 then claimed IB - social insurance which she qualified for...
shouldn't she have acquired a permanent right to reside after 5 years by being a worker /otherwise satisfying the regs...? reg 15 (1) (a)

probably don't need to worry too much about the no longer temporary incapacity for work argument... i don't think it can fly, not without the SoS contradicting himself...

That looks right so long as she is not an A8 or A2 national or from Malta or Cyprus, ie has been in the UK since before her home country joined the EU. Seems unlikely on your facts I must say.

Mr Comm'r Rowland's hearing a case as to whether reg 15(1) stands without qualfication, i.e. whether you need ot have continually been qualified through the 5 years on 30th May.

Watch this space a it might be an easy fix.

Adding to the above, the issue of reg 15 and the 5 year residency does need to have been under IEEA Regs 2000, and then under 2006 regs.

see- sch 4 para 6 to the 2006 regs.

So if all the while that your claimant has been in UK and has been a "qualified" person, then the fact that IB (not credit and IS) has been paid seems immaterialn as under 2000 and 2006 regs, claimant temporarily has been ill - the fact that the temp illness has been not so temp, is an issue that the DWP needs to sort out amongest themselves!

The only bit that can stop the 5 years being counted backwards, i.e looking at sch 4 -para 6 is if the claimant was in UK for 5 years, but receiving menas tested benefit via transitional protection.

For that see

1- The Court of Appeal in Ismail v Barnet <2006> EWCA Civ 383

2- High Court in Mohamed v Harrow <2005> EWHC 3194.