I wanted some feedback on a Right to Reside case and I was hoping that Tim Samuel if he happens to read this can respond but any views might be helpful.

I have a client who is a Portuguese national. She has lived and worked in the UK since 1999. It appears that under Reg 15(1)(a) I(EEA) Regs 2006 she has a permanent right to reside (since 1st July 04). She has continued to work in the UK. On 19th June 06 she went on her Ordinary Maternity Leave and shortly before this (and her SMP)ran out she made a claim for income support. She was found to have a right to reside for the period of entitlement to SMP but not from 21st December 06.

My client has taken Additional Maternity Leave (AML) and is due to return to work on 16th June 07.

In our appeal to the DWP we argued that she has an entitlement to income support either because she has a permanent R2R in the UK or because she remains a 'worker' and so a qualified person.

The DWP did not change their decision on reconsideration.

I have since spoke to them directly about the matter and to a senior manager at DWP, Wick.

The present position is that they are seeking clarification from their policy team who in turn are seeking advice from the Department's Solicitor and they then hope to give us a full reply. What the office in Wick said, in an e-mail reply, as to the Department's position was "the argument presented in similar cases is that the person would have a right to reside under Regulation 15(1)(a) of the I(EEA) Regs 2000 . However, there is disagreement that a right to residence under reg 15(1) gives access to benefit as Income Support regulations refer to reg 17 not reg 15". Regulation 17 deals with the issue of a residence card.

We hope to get a reply today from the DWP, Wick once they've heard from the Department's Solicitor's/ Policy Team.

In the meantime if anyone does have any further ideas regarding the matter I would be grateful.

Further, my client's child benefit and child tax credit have stopped as the HMRC have taken their lead from the DWP. These decision are now also under appeal but in the meantime my client has been placed in an onerous position which it was never the intention of the R2R rules to create.

Confess reading this made my jaw drop as they have taken a break from reality. This has to be up there with the finest moments of the DWP but unfortunately that doesn't help your client in the interim.

What they seem to be doing is restricting the R2R and consequent entitlement to IS to a very small band of people to the exclusion of many others who may derive a right to reside via another route.

They have missed the point of the regulations which is that all a person has to do to not be a person from abroad and therefore be potentially entitled to IS and other benefits is to have a R2R and satisfy the HRT. They do not have to be in one of the groups in Reg 21AA(4) of the IS regs as amended by the PFA regs 2006/1023. Reg 21AA(4) are not the only ones who have a R2R in the UK, they are merely a selection who the Govt treats as effectively exempt from having to demonstrate they have a R2R and are HRT. The bizarre extension to the logic of their argument is that no one can be habitually resident in the UK unless they come in those groups in 21AA(4).

Their reference to reg 17 is therefore correct in as far as it goes. Those coming into reg 17 have an automatic right to reside for IS but that doesn't mean your client cannot have one.

Your client has lived in accordance with the domestic regulations (i.e. both the 2000 and 2006) for a period in excess of 5 years.
She has therefore a right of permanent residence in the UK. By virtue of Article 16 and Reg 15 (2006/1003), she has an enforceable community right to reside in the UK which cannot be taken away unless she leaves the UK for a period of 2 years or does something to justify removing her from the UK. Given she has a right to reside and is habitually resident, she is not a person from abroad.

More than happy to assist with this one should you need it or if you need a fuller response.

Tim, thanks for your response and offer of assistance.

I'll keep you posted when I hear again from the DWP.

Some good news. The Child Benefit office have confirmed today that they will be reinstating my client's benefit - their reason for doing so is that they accept that she remains a 'worker' during her period of AML. No further discussion as to my client's permanent right of residence.

I have spoken also to Income Support but it appears that they are still waiting to hear from the DWP Solicitor.

Update - The DWP have decided that my client is entitled to income support as a 'worker' and so the issue of whether she had an entitlement on the basis that she had a permanent right of residence remained unresolved.

Hi Cliff

I have nothing to offer but would like to know the answer as in my new job I have several Portugese clients who have R2R issues involving IS/JSA. Perhaps you would let me know via this forum or to [email protected]? Cheers.

Tom