HI everyone, this case is really baffling me. I have a 65 years old Polish lady who moved here from Poland in 2005. SHe came here with her daughter and her 7 children. From what i know she does not work but her Husband who i think is English does. The lady met someone in 2006 and married. The relationship became very abuisve and she was removed from her husband's home and back to her daughter's. She applied to sheltered housing and was offered a tenancy which she aceppted in Jan 08. Her claim for PC has been disallowed on the grounds she is not "Habitual resident" and is not entitled to PC under section 6 of the immigration act. I am suprised as this lady is continusly lived in the UK from 05 which i can easliy prove but i thought family members of A8 nationals are exempted from the HRT test?
PLease could anyone direct me to appropraite case law which may help my case!!

Some of the above is a little unclear. For example,

"SHe came here with her daughter and her 7 children. From what i know she does not work but her Husband who i think is English does."

Does this mean it is the daughter's English husband that is working? Or are we talking about your client's husband?

Neither A8 nationals nor their family members are exempted from the HRT and they are not exempted from the right to reside rules. A8 nationals have a right to enter and live in the UK, but remember, a right to reside is for benefit purposes and is something different.

An A8 national might have their own right to reside as a worker, a workseeker (but only after completing 12 months registered work) or a former worker. On the info provided, your client falls into none of these categories - workseekers are specifically excluded from having a right to reside for the purposes of PC.

It is the case that an A8 national (or other EU national) might have a right to reside as a family member of someone with a right to reside, but they would need to show they were dependant (in the country of origin) on that relative. The relative - in this case, daughter - would also need to be someone who has themselves has a right to reside as a worker or workseeker. If daughter does not come into one of these categories (and her English husband's work doesn't bring her in - only her own work or workseeking) then mother - your client - cannot use her to get a RtR.

Of course, if I've misunderstood the facts.....

no you are right that is what i thought. I am going to interview the family properly tommorow but this was just the overview given to me by the Housing group. The lady is in substanial arrears and may be evicted. I don't think her daughter works and is solely dependent on her English husband. I don't know if she is getting benefits or not. Do you think i should ask? If she is getting benefit will this help her mother's case?
Also can i ask is she refered to a EEA national or a A8 national. I think it is the second one. As there is something that say "If you are a EEA national and you have retired under article 17 of EC directive 2004/38 you will be exempted from the HRT test. Also living continusly for over 3 years does that not count? Again i don't normally deal with these types of cases so i am struggling, any help will be much appriecatied.
thanks

She is an EEA national but also an A8 national. A8 nationals have additional conditions to meet for the purposes of RtR - must register their work within one month of commencement, but are then entitled to in-work benefits such CB, WTC, CTB whilst they are workers. They do not aquire a RtR as a workseeker until they have completed 12 months registered work. A break in work of more than 30 days will mean the 12 months has to start again.

In respect of retired people, or as the regs term it a "worker or self-employed person who has ceased activity", at least some work must have been done in the UK to take advantage of this provision - the amount of work required will vary depending upon which part of reg. 5 of the 2006 regs you're trying to rely on. If she's done no work in the UK, this door is closed.

Whether the daughter is getting benefit or not is a bit of a red herring. The question to ask is, "Is daughter a 'qualified person'?" - ie what treaty right is she exercising? ie is she a worker, a workseeker or self-employed ? I cannot see anything that is going to help from the info you've given about daughter.....