Right to Reside for returning UK national.

Client is British born UK citizen who was in receipt of JSA (ib), HB and Council Tax Support until leaving UK to care for sick relative in Somalia on 30/10/2013. Prior to leaving he enquired with JCP about benefit implications and was advised (correctly at the time) that he could reclaim on return provided he waited a week or so after arrival.

Client arrived back in UK on 30/01/2014, and his subsequent claim for JSA has been refused under the changes to HRT from 01/01/2014. Client has decision letter dated 12/02/2014 advising he cannot be considered habitually resident until 30/04/2014. (Interestingly the decision letter does not mention appeal rights AT ALL).

Client now has no income, cannot pay his rent and is likely to lose his home. He has managed to get £150.00 from the local Welfare Provision Scheme, but that is hardly going to last until May 1st.

Has anyone out there any ideas for options to challenge this decision, as I am at a loss other than to refer client to his MP.

Decision certainly carries a right of appeal;

1. Request mandatory review - grounds are, effectively, as you have already outlined - client was habitually resident up to date of his departure. As absence was only ever intended to be temporary, he never lost UK hab residence and certainly did not become hab resident in Somalia.

2. The new regs and the 3 month period do not change any of the above - they are about how a person might become habitually resident and simply do not apply in circumstances where a person is already habitually resident.

3. I suspect that what has happened would not have happened had you assisted client through new claims process - pointing out the exact circumstances of how cl came to leave the UK and circs of new claim ought to be enough to sort this.

4. Chuck in protective new claim - fully explaining circs in covering letter from you - just in case.

Totally agree with the above.  To assert that you lose HR after years of residence for a temporary absence of a mere two months caring for a sick relative (providing of course he didn’t ‘pack up’ his life here) is simply going too far.

Oh, and also bung in separate HB claim if this hasn’t already happened. HB aren’t obliged to follow DWP decision. Will he be claiming HB on the same property? If the landlord happened to be a social landlord and was made aware of the temporary absence before it occurred then this might enable them to offer good evidence re habitual residence and the new HB claim.

I have a case on very similar facts, the lady is a Lithuanian national and was out of the UK for a shorter time. She ended her JSA claim late November to return to Lithuania for her sister’s funeral. She had to stay in Lithuania longer than she expected as her sister had a young daughter who needed looked after for a while before being placed in the care of another family member in Lithuania. There was then some problem with her return ticket and she wasn’t allowed to fly on 23 December. Our client returned early January, re-claimed JSA and was refused on the basis that she had not been living in the CTA for three months.

I’m not sure about point 2 in SHowells post. Do you guys see the new 3 month “living in” test as simply being a formalisation of the approach that you must be actually habitually resident for 3 months or is “living in” a separate test. I know I’ve read guidance somewhere that suggests the latter as DMs were instructed to first consider whether the person was living in the UK, then go on to consider habitual residence. Admittedly, given the existing case law on actual hab res, it’s unlikely that a person living in the UK for three months will not also be actually habitually resident but certainly the DWP approach appears to be that it is two separate tests.

So you could have a person, and this appears to have been the decision in my case, who is actually habitually resident but has not been “living in” the CTA for three months (in the same way you could have a person who is actually habitually resident but doesn’t have a right to reside and so would still fail the hab res test)? There’s no doubt that leaving the UK for a temporary period for a specific event (funeral of a sister where the lady retained her tenancy here, her children all stayed here, etc) would not affect actual habitual residence.

The “living in” test is presumably not a physical presence test as temporary absences from the CTA are permitted according to the DWP guidance. So “living in” lies somewhere above simple continuous physical presence in the CTA for three months but below an absence which would be sufficient to no longer be actually habitually resident (which depending on the facts can be a substantial period of time). Despite the fact that it appears to be a distinct test from the actual habitual residence test, it’s hard not to see the same factors being taken into account when determining if someone was living here.

It’s just that I’m trying to write an appeal for the client in this case today and I’m having difficulty trying to understand what “living in” means in practical terms. In my view, this lady was clearly “living in” the CTA during her absence despite the fact that for the 3 month period, she wasn’t physically here for about half of that time.

On the “living in” point, I’d be arguing that the term was legally synonymous with the term “ordinarily resident” rather than, as you say, actual physical presence.

hi lee -

DMG Memo 28/13 - discusses meaning of ‘living in’ -

‘This expression is not defined in the regulations and as such should be given its
ordinary everyday meaning taking into account the context. The New Oxford English
Dictionary says that to “live” somewhere means to “makes one’s home in a particular
place” The Shorter Oxford English Dictionary says that “living” means dwelling in a
specified place. “Dwelling” is defined as the action of residing living or having one’s
home.
Temporary Absences
If, during the three month period the claimant has spent some time outside the CTA,
the DM will have to make a judgement as to whether that claimant ceased to be
“living in” the CTA during that absence.
It is not possible in this Memo to deal with all the circumstances in which a temporary
absence from the CTA will mean that a person has or has not ceased to be living in
the CTA. DMs should take a common sense approach by applying the normal
everyday meaning of “living in”’

then goes on to give examples - takes into account things like whether keep accommodation on here, reason for visit, etc. certainly isn’t a test of physical presence in UK and seems to be same as test of whether hab res.

here’s a link -

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/269505/m-28-13.pdf

i think your client has good case, as you say. if you can show that kept on accommodation here, kept belongings, bank account etc, and reason for visit was always temporary then surely should be ok. if not, could be lead case at UT…..

cheers ros

Thanks for the responses guys. I’ve drafted the appeal and I’m running three grounds. The first is on the “living in” test and I referred to the guidance above in Ros’s post. I’ve also thrown in a reference to Shah and the test for ordinary residence (thanks for that Nevip!). Second ground is that, on the facts of this case and if she is found to not satisfy the living in test, then the test is disproportionate in this case and I’ve relied on the ECJ decision in Collins. She shouldn’t need to satisfy a three month residence requirement on her return to the UK in order to demonstrate a genuine link to the UK labour market. There’s also issues about obstacles to free movement since the loss of her benefit is directly linked to the fact that she moved within the Union to return home for a period of time. Finally, I’ve raised an argument that as she retained worker status (she had previously worked in the UK for two years and then claimed JSA), she shouldn’t lose worker status for as a result of a brief return home where again on her return to UK she has immediately re-established her link to the UK labour market. If she retains worker status, the 3 month rule won’t apply to her. (She’ll also be able to get HB after the amendments come into affect).

Hopefully at least one of these will get a result for the client. Of course, she’s currently stuck with no income and no HB until early April when she’ll have been back for 3 months and it’s unlikely the appeal will have been heard by then.

Hi all but particularly Lee42 - have you had an outcome on this case yet? Any progress since your last post?

I am a welfare rights adviser working for an actor’s/entertainers union.

I have a returning UK national (entertainer) who worked abroad in various locations in Spain for 6 months before coming back to do a Panto at xmas (2013).  She has lived and worked in the UK for the majority of her life (29 yrs)- she did not settle in Spain. Her correspondence address was in the UK although she did not have her own flat to return to (gave up in order to go work abroad).  She claimed JSA on 4th Jan 2014 and was only paid on the 26th as DWP deemed her to be HR from that point (3 months after her return).  They will not accept that either a) she is exempt from the test as someone who has retained worker status or b) that she was habitually resident as of her claim for JSA. 

HOWEVER they did initially accept the HRT argument on MR and overturned their decision (I have this is writing), however I then received a call from a decision maker 1 week later saying that the policy department had told her to retract.  I have received another MR which doesn’t accept either argument a) or b) and I don’t really understand why (I may be able to post the documents if the client (member) gives me permission).  We have registered an appeal and it is due to be heard soon.

Any comments gratefully received.

DWP just published this freedom of information response saying -

‘UK nationals who have worked in another EU country are not treated as EEA jobseekers when they return to the UK. They are treated as returning UK nationals.’

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/315350/foi-1863-2014.pdf

Thanks for this Ros.  In my opinion it is a poor response from the DWP which doesn’t acknowledge the key EU legislation which I believe would be engaged, however I am taking further advice and will keep the forum updated on progress.

Hi - wondered whether Lee42 had a result on the JSA (HRT test reg. 85A) case yet?  My first tier tribunal is next week (weds 20th).

Thanks.

UPDATE ON JSA(HRT) APPEAL

FACTS: To recap, the claimant was a British National who occasionally travels outside the common travel area for her work (entertainment).  She worked in Spain April-October 2013, returned to the UK to work on a Panto and then claimed JSA (IB) in the January.  The DWP accepted that she was habitually resident in the UK, but maintained that regulations 85 A (2) (a) of the JSA regulations 1996 only allowed them to apply this after an initial 3 month period of residence.

We argued that the case of Swaddling (Swaddling v. Adjudication Officer C_90/97 ECJ, reported at R (IS) 6/99) established that a purposive approach must be taken when establishing habitual residence otherwise the regulations would be incompatible with EU Regulations (883/04 and 987/09); therefore a literal interpretation of ‘living in’ (during the first 3 months of return to the UK) would not be appropriate.  We argued that the DWPs own guidance on the regs allows for a claimant to be foudn to be living in the UK in the event of a temporary absence during the 3 month period.

We also argued that the effect of the regulation has meant that returning UK national workers (who cannot be deemed to be EEA nationals in accordance with the Immigration (EEA) regulations 2006) are effectively penalised as an EEA worker who fits the eligibility for the exempt group of the JSA regs, and who may not have as significant ties to the UK as the British national, may be able to access IB JSA straight away.  This would be contrary to the apparent policy intention.

The DWP presenting officer did not accept that Swaddling applied; she said that Mr Swaddling had lived in france for a significant period of time and settled there, whereas our member had not settled in Spain.  She agreed that there appeared to be a conflict with the policy intention. She also made it clear that she had instructions from the DWP policy team to maintain that ‘living in’ requires a “physical presence” in the UK for the entire 3 months before the date of claim. No more detail was given.

THE DECISION:-
1) The judge accepted that our member had attempted to make a claim before the relevant regs came in (on 31/12/14), therefore her claim should be treated as made from that date.
2) In any event she continued to be living in the UK (despite not having a fixed abode) as she had only travelled out of the UK to work on a fixed term contract and had intention to return to the UK. She also retained ‘connections’ to the UK.

The decision will almost certainly be appealed by the DWP. I will keep this discussion forum updated.

For the record our member’s connections to the UK were: the majority of her personal possessions in the UK. She kept a UK bank account, Equity membership; UK based professional subscriptions and was registered with a UK General Practitioner.  She continued to be registered for UK tax and NI on a self-employment basis.  She would have kept her UK home rental address were it not for financial difficulties (2 months into the contract she had to give it up – she is only 30 yrs old and still trying to establish herself). Her friends and family remained in the UK.

Let me know if you want any more detail. Our member is happy for us to publicise the decision - which I attach for reference.

Best wishes,

Emma Cotton

Sorry guys - the decision isn’t attached as the post wouldn’t accept it (too much data I expect).

hi emma ... sorry, there’s a maximum file limit for attachments ..... do you want to email it to us and we can upload this end?

... .(JavaScript must be enabled to view this email address)

cheers - shawn

Thanks Shawn - going to wait till the 21 days are up for the appeal to lapse (hopefully) then we will send you a copy.

Thanks.