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Can EU citizen be in the UK illegally??
Hi
Can someone please advise?
Slovakian mother with 2 children has been living in the UK for 3 years, never worked and never really had a permanent address. Claimed JSA for 1 month only. Her sisters live in the UK too. Mother lives in Belgium.
Children’s Social Care are saying mother is in the UK illegally and has to return back to Slovakia.
At the moment CSC are supporting the family with temporary accommodation and some financial help.
Can someone please advice if mother really is in the UK illegally or whether she has a right to live in the UK?
thank you
[ Edited: 30 Jun 2016 at 03:36 pm by Sue123 ]Don’t think it’s illegal, but they can certainly have no RTR which means no access to funds
If children are in education, she really needs to find a little work, (something lasting a month?) to establish her RTR based on her children in education
Does she have a partner?
Not sure what the current status for CB and CTC is for circumstances like this, can someone please clarify?
I think what social services means is that she has no RTR, Zuzana. There’s often confusion between RTR and having no recourse/being subject to immigration control (which- as things currently stand at least- she isn’t).
She may have a RTR as an ‘extended family member’ of one of her sisters but she’d need to have a residency permit. Otherwise, the only routes I can see is either as a jobseeker (in which case she’ll not be entitled to HB and will only realistically be paid for 3 months) or if she can find work, even if only part time/temporary (she will then either have a RTR as a worker or via her school-age children). As things stand though, I can’t see any obvious route to her having a current RTR.
Hi Zuzana
If the Local Authority is refusing long term (rather than short term) support and offering a ticket to return. They need to see if this would breach your clients Human Rights before they do this.
Its a complicated area…....This doc might help a little but your clients may need more specialist advice.
“A Child in Need and a Human Rights Assessment should be completed on EEA migrants who cannot
support themselves and become destitute to ensure that withholding or withdrawing services or
offering tickets to the parent’s country of origin would not be a breach of their human rights”
Hello
thank you all for your help.
CSC are doing Human rights assessment, I have looked into the link and I believe they would be breaching Article 3 Human Rights Act as family will be destitute back in their original country and will not be able to secure accommodation etc….
Unfortunately there is really no way to establish RTR for this mum, she doesn’t speak English and it might be difficult to find her work. I was thinking she could claim JSA as she’s only had it for 30 days so should be able to get it for another 61 days, however like you said she wouldn’t get HB.
And I think she might even struggle with the looking for work bit with no English.
Her sister’s never worked I think, their partners do.
One more thing - this mother married an Indian man - if by any chance this man acquired British citizenship (probably highly unlikely I guess?) - would mum have right to reside based on the fact that she was married to him although not living with him?
I am just trying any way to find if she could have a right to reside.
Not sure how else I can help her.
Difficult case…... :(
thank you
[ Edited: 1 Jul 2016 at 08:25 pm by Sue123 ]I think what social services means is that she has no RTR, Zuzana. There’s often confusion between RTR and having no recourse/being subject to immigration control (which- as things currently stand at least- she isn’t).
Unfortunately social services don’t know the difference between RTR and No recourse to public funds.
I only today found out that I might have to explain this to them.
I was told yesterday that mum can only legally stay in the UK for 3 months - I am sure this is not correct, I think they are getting confused with the rule around claiming JSA, but I am not sure if there is a guidance that I could show them so they understand that they can’t legally just kick her out of this country?
thank you
This is what I found online
What does Right to Reside mean?
European Economic Area nationals require a right to reside in order to legally remain1 with in
another EEA country. Right to reside means that you have permission or a right to live in the UK
and can also claim benefits. It is also known as legal residence.
EEA nationals may lose their “right to reside” in the UK and therefore no longer qualify for most
benefits or housing assistance. As a result these individuals would be classed as persons from
abroad and as such have no recourse to certain public funds and services.
Is this why social services are saying that she cannot legally stay in the UK?? and is this correct?
its about the freedom of movement of workers in the EU
in very brief (there are a lot more wrinkles that i’m not aware of, this is just a general overview).
for so long as we are in the EU, we have a right to go and work anywhere else in it, and EU people can come here and work
but that doesn’t mean that someone can just move to another country for the hell of it and immediately claim benefits, that is not allowed in any EU country, there has to be a connection with the labour market for an undefined period of time (that is down to individual country’s rules so long as they are reasonably within the Treaty/directives) before any such rights will arise.
so if someone comes over, works, and either falls ill/has a workplace accident and so can’t work, that’s fine; if they get made redundant/otherwise lose their job that’s fine as well but not forever. Which is why people have to be able to show by way of documentary evidence/NI contributions that they do/have had a connection with the labour market.
if you are not in the labour market and never will be, you have to be otherwise self sufficient. so for example UK citizens retiring to Spain are allowed to do that even though they won’t be working as they take their pensions with them, and their health care is by way of reciprocal arrangement (the EHIC card). and vice versa.
in your client’s case, it would seem that she has never had any connection with the labour market in the UK; have to say when i first read your post i wondered what she’d been living on?
Overall, i would say that without some evidence of a labour market connection - for instance, the father of her children? - your client is in a difficult position and even the ECJ would not uphold her right to stay here and claim benefits.. So that is why the ECJ recently upheld the UK Governments position on minimum periods
The conversation seems to have moved on but social services are wrong to say that your client must leave. Your client is here illegally in the sense that she has no right to reside but there is nothing directly compelling her to leave.
The Home Office (and not childrens services) may order her removal under r19 Immigration (EEA) Regs (subject to human rights, appeals etc) but (a) they can’t detain her as they could an overstayer/illegal entrant and (b) they can’t stop her from getting on the next plane back from Slovakia and exercising a fresh right of entry and initial residence.
For these reason the idea of forcing EEA nationals out of the country is not normally regarded as worthwhile . Repatriation (encouraging or incentivising return to the home country) is far more common.
It may well be that childrens services are quite forcefully pushing repatriation as it will be far cheaper than any other option open to them. It is possible that refusing will have consequences in terms of the action childrens services will take (not really my area). But as a strict matter of law they can’t force her to leave.
N.B. I don’t know what your arrangements are with the Office of the Immigration Services Commissioner but do be careful when advising about this sort of thing…
[ Edited: 2 Jul 2016 at 10:24 am by Elliot Kent ]Thank you for your answers.
I cannot really advice this mother as i am not in a position to do so. I am simply trying to work out if she could have a right to reside which seems that she does not have.
I am also thinking about mother’s human rights - probably could do with talking to a solicitor.
I am not advising anyone right now - i am just looking into her options - i also find this very interesting so i am trying to educate myself.
Any advice on how to legally proceed would be appreciated - where to ask for advice, where to signpost mother, etc.
Thank you
Zuzana, you say she is married to an Indian man. I suppose there’s no possibility that he is actually an EU citizen? He may be from India originally but it is possible he has at some point acquired another nationality. It’s not uncommon to come across people from the Indian sub-continent who have lived/worked in other parts of the EU and have become German/Dutch/French citizens (for example). Alternatively, if he is a UK citizen is there any possibility that he has worked elsewhere in the EU at some point?
If so, she may have a RTR via him depending on what he is currently doing.
Yeah i was hoping that it could be an option but she has no contact with him so i think it will be difficult to establish. The fact that she is married tho i thought would be taken into consideration and this route would be explored but it hasnt been.
Not sure if there is a chance of finding out somehow what the situation with him is.
yes but she knows his name and the DWP should be able to find out his NICS contributions, if any. she might even have a clue as to where he might be.
on her status re legal residence, clearly an immigration solicitor familiar with EU law is required.
“but (a) they can’t detain her as they could an overstayer/illegal entrant and”
Are you really sure?
“re legal residence, clearly an immigration solicitor familiar with EU law is required.”
Agreed
.
It may well be that childrens services are quite forcefully pushing repatriation as it will be far cheaper than any other option open to them.
If this were an adult with care and support needs, a ticket home would be their only duty if it did not give rise to a breach of convention rights; it wouldn’t surprise me if that were the case for Childrens’ Services as well.
[ Edited: 13 Jul 2016 at 11:59 am by Dan_Manville ]Thank you everyone for your advice, but I am not getting anywhere with social services and really don’t know what to do now.
If anyone has any knowledge on human rights or could point me in a direction, I would really appreciate it.
thank you
You need to refer to an solicitor who knows about immigration/social care. The reason being is that social care will normally consult with their own legal department on the HRA.
Most European countries have organisations that do a similar function to the local social care department. It is quite common for the social worker to contact this organisation as well as any family relatives in the country of origin, to check what arrangements will be made if and on any return, both to check against a breach of HRA and to ensure the safety of children.
Your client really needs independent specialist help.
HI Zuzana
This area is a perennial problem. We have dealt with a number of cases like this and also of non eu ‘overstayers’ with children who are in the UK. It invariably ends up withe client opting to take up the option of us issuing JR proceedings. We are in the fortunate position of having Immigration Law specialists and Community Care law specialists and thus access to the courts and Legal Aid contracts in both areas. Invariably, once proceedings are issued the Children’s Social Services dept generally back down and deal with the relevant pieces of legislation correctly (or in a couple of cases we have dealt with, continue to argue it and then get landed with a costs order). The standard and quality of the Local Authority’s legal teams is also variable in this area of work. Without knowing the detail, she is potentially deport-able as she might be deemed a burden on the state assuming she hasn’t made herself a qualified person. However, Given it appears the children in school it is unlikely the Home office will take action.
Its difficult to say much more without knowing the case (eg nationality of children, whether has exercised treaty rights somewhere else), but certainly, as other posters have said needs access to somewhere that has the ability to access the courts should Social Services try to stop supporting or try to send them back to Slovakia.
These cases are tricky!
Rich
Thank you everyone for your advice, but I am not getting anywhere with social services and really don’t know what to do now.
If anyone has any knowledge on human rights or could point me in a direction, I would really appreciate it.thank you
there are surely immigration specialists in your area with legal aid contracts? that, really, is probably the best place to send her for relevant advice. as others have said, - see in particular Rich’s post - once that side is sorted you and she will have a much better idea of where she is on other issues.
You can find a regulated immigration adviser Find an immigration adviser here
Thank you everyone for your advice, but I am not getting anywhere with social services and really don’t know what to do now.
If anyone has any knowledge on human rights or could point me in a direction, I would really appreciate it.thank you
there are surely immigration specialists in your area with legal aid contracts? that, really, is probably the best place to send her for relevant advice. as others have said, - see in particular Rich’s post - once that side is sorted you and she will have a much better idea of where she is on other issues.
Hi
Thats a good start , but sadly, on the face it of it, this type of enquiry is generally out of scope of the Immigration Legal Aid scheme (unless there is some DV or trafficking)- and in all honesty it doesnt look like there is much of a dispute with the UKBA/Home office . The dispute is with Social Services as it stands- thus the suggestion would be to go somewhere with a Community Care legal Aid contract. If they have immigration specialists as well, then that would definitely of benefit as the Com Care bod is likely to go an ask the immigration person for 5-10 mins of their time . We have both under the auspices of our Social Welfare law services and happy to pick it up- however there maybe similar providers more locally that are easier to access.
Also look back at Elliot from Darlington CAB’s answer. Spot on.
These people as the biz http://www.childrenslegalcentre.com/index.php?page=advice for this kind of thing but I am not sure they can actually ‘do’ the case. They worth a go though and will I am sure point you in the right direction.
Please get this enquiry moved on if you can
Rich
[ Edited: 13 Jul 2016 at 10:55 am by Rich ]On deportation, see Articles 27 and 28 of EC Directive 2004/38. An EEA national cannot be deported on financial grounds alone, as long as we are are still in the EU of course.
On deportation, see Articles 27 and 28 of EC Directive 2004/38. An EEA national cannot be deported on financial grounds alone, as long as we are are still in the EU of course.
Yep thats spot on and as Elliot says much earlier if i did end up being deported there is absolutely nothing stopping them coming back in
Also on deportations see this Home Office guidance on EEA administrative removals which could be useful to help point out the errors of the LA approach - page 8 for guidance on the approach to ‘no right to reside cases’ and p19 for the approach to proportionality.