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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

ESA and RTR

Andrew Dutton
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Welfare rights service - Derbyshire County Council

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Total Posts: 1955

Joined: 12 October 2012

In endless years of doing WR work I have never had many cases of RTR etc to deal with, and so I don’t know how to manage this query.

The basics are below: can anybody give guidance on what further questions need to be asked to fill in any gaps, what regs should I be looking at????

Client is a German national.

Married to a British citizen for 10 years, resident in UK 9 years but has had to move to a refuge owing to DV. One child age 5 with her (British Citizen).

Met husband when he was working in Germany but they did not live together there.

Has no income. Has applied for ESA but has been refused on HRT/RTR grounds. Told she can’t get HB as not a EEA worker.

Has not worked during time in UK. Did not come to the UK on a spouse visa, told that for this reason she cannot apply for residency.

Told that she can’t satisfy’ 5 years of self-sufficiency’ as she has used NHS, no private health insurance.

She apparently can’t satisfy ‘primary carer of a child in education’ as she isn’t and hasn’t been a worker.

1964
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Deputy Manager, Reading Community Welfare Rights Unit

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One thing which immediately occured to me is that whilst her husband is a UK citizen he has worked in another EEA member state (Germany). If that can be evidenced I think she should have a RTR as his family member.

AdviceShop
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Advice shop - West Lothian Council

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Hi Andrew.

Could she not qualify as a family member under Reg 7(1)(a) of the EEA Regs:

7.  (1)  Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person—
(a)his spouse or his civil partner;

Even though she is in a refuge you still mention “husband”. If they are still married, (regardless of whether they are separated or not) then as far as I read it, she is his spose so has a right to reside!

1964
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Deputy Manager, Reading Community Welfare Rights Unit

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Yes, but only if her spouse is also an EEA national (or has worked in another member state). He’s a UK citizen (so that only applies if he has definitely worked in Germany or another EEA state in the past).

Andrew Dutton
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Welfare rights service - Derbyshire County Council

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Total Posts: 1955

Joined: 12 October 2012

P1544 of CPAG indicates that they must have lived together in the other EEA state, is this a fatal objection????

1964
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Deputy Manager, Reading Community Welfare Rights Unit

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Total Posts: 1711

Joined: 16 June 2010

I think it is still worth a punt. CPAG has a reference to an ECJ decision that conflicts with the EEA regs on that point. As there is a child involved, I wonder if CPAG would consider taking it on? Worth contacting them I think.

Realistically, the short-term solution is for her to claim JSA and limit her availability around her health/childcare issues.