I am currently appealing the refusal of a pension credits payment for my client's mother. It was refused on the basis that she is "subject to immigration control" and is not habitually resident. I dispute this but I need advice.

She is a Sudanese national but entered the UK as the family member of an EEA citizen who was exercising his treaty rights. She remains dependent on the family. She has a residence permit valid until August this year. They say that this does not fit into their definition of people who are not subject to immigration control, and that she is not habitually resident primarily because she is a foreign passport holder.

Hi Silverwood. You posted quite a while ago, so maybe the case is now concluded.

Anyway, various points:

1. Habitual Residence and being Subject to Immigtration Control are two entirely different concepts in social security law that are often confused.

2. Whether or not your client is subject to immigration control depends on whether or not any of the following apply to her:

a) She requires leave to be in the UK but does not have it (not the case as she has leave in form of residence permit).

b) She has leave to enter but only on condition she does not recourse to public funds (this should not be the case if she applied as a family member of an EEA citizen- these people should not have a funds restriction).

c) She only have leave to enter as a result of an undertaking (the decision to grant leave was on basis of her joining an EU worker so no undertaking was required).

d) She only has leave as a result of an appeal etc. (this does not appear to be the case).

(the above are the exhaustive definition of a Person Subject to Immigration control found in sec 115(9) of the Immigration and Asylum Act 1999).

So that would mean your client is not subject to immigration control.

On the issue of Habitual Residence. If your client is a family member of an EU worker then she cannot be subjected to the habitual residence test (she has a right to install herself in UK under Article 10 of EC reg 1612/68 and is a person who has residence pursuant to Council Directive 68/360/EEC- so exempt habitual residence test under Reg 21(3)(a) of Income Support Regs 1987.

Let us know how you get on.

Martin.