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a8 national and income support ...
Have a cl who came to uk 02/02/06 and they have copmpleted 12 months registered work. They married their British husband 18/04/09 and they have a child aged 1 1/2.
Cl in receipt of maternity allowance between 05/07/09 - 03/04/10.
However, the cl was in an abusive marriage and on 14/06/11 they entered a womens refuge and claimed IS but this has been refused because they do not have a right to reside.
A short while ago a person sent me a similar case re : a Turkish national who had gained a right to reside after leaving an abusive marriage and I’m wondering if this rule applies for EEA nationals ...
Any thoughts, thank you.
On the face of it, as child is not yet of school age your client would need to be a work seeker (ie- claim JSA instead of IS) in order to retain her RTR. She can’t rely on being a family member of her ex as he is a UK citizen (unless he has worked elsewhere in the EU at some point).
However, as she has been here since 2006 she may have established a permanent right of residence now. She’ll need to demonstrate she’s had a RTR throughout (worker, work seeker, self sufficient, period of temporary incapacity, etc).
Alternately, the Zambrano case may help her (though I have to say I’ve not yet got my head around it in any detail).
Anyhow, there’s some RTR gurus out there whom I am sure will contribute.
A short while ago a person sent me a similar case re : a Turkish national who had gained a right to reside after leaving an abusive marriage and I’m wondering if this rule applies for EEA nationals ...Any thoughts, thank you.
Article 13 of DIRECTIVE 2004/38/EC is in similar lines but is for an EEA national family member which she is not, unless as 1964 pointed out the UK national hs previously worked in another member state, and if that’s the case she would be fine but I suspect not.
I think the best thing to do is to see if permanent residency can be acheived with the information at hand as suggested by 1964.
if not, I think Zambrano would be of use. As an aside, Poland do not recognise dual nationality so it wouldn’t aid if it was the other way round but the UK does. As long as the child is British..
If all else fails then you might want to look at CIS/184/2008. As stated, at para 5 “the question of law arising on this appeal is whether the tribunal was right to hold that on these facts the claimant had taken sufficient steps to preserve her status as a worker for the purposes of Article 7(3)(c) of the Directive” in a case where the person registered herself as in duly recorded involuntary unemployment with the jobcentre but then claimed IS instead of JSA.
The tribunal of commissioners, by a majority, found that on the facts of this case that was sufficient to found a right to reside under the directive and it was not necessary to actually claim JSA. But, at para 39, the commissioners issued the caveat that “the intention to seek work must be genuine and the extent of the work sought must be sufficient.”
However this decision is currently under appeal to the court of appeal, known as Secretary of State for Work and Pensions v Elmi, and any appeals relying solely on this will be stayed pending the court’s decision.
Decision in Elmi now in. The DWP lost.