Habitual residence test for EU citizens and their rights to social assistance scheme!!!

What nationality is his wife?

His wife and daughter - both Italian nationality

I think the council is relying their decision on the DWP HRT failure.

The client has been here 1 year and plus - therefore the new rule (jan 2014) about the HB and CTR should not be applied, unless the transition period does not cover them? Yet again client has had no disruption on his HB and CTR claim.

Confused on what grounds to challenge the decision so we can prove his right to reside and habitual residence test!!

I expect the LA has simply followed the DWP negative ESA decision.

The most obvious route to arguing your client has a right to reside (for both ESA & HB purposes) is as the primary carer of a child in education. He’s been a worker in the UK so as long as he can evidence that and that his daughter is at school here it should be fine as far as I can see.

I’d get a letter from the daughter’s school (best get that sorted out quickly before they break up) and supply that along with wage slips/P45/contract of employment or anything else he has to confirm he was a worker and ask the LA to revise the decision.

He will have been adjudged not to have a right to reside.  His appeal will be based on the right to reside arising from a temporary incapacity for work, provided he can show that he has not broken his link with the labour market.  In the meantime his wife (if she is the primary carer of their child) could claim JSA based on the child’s right to education, following the ECJ’s judgement in Teixeira.  She should also claim HB.

Nevip, couldn’t the dad argue he is the primary carer of the daughter and have a RTR to ESA & HB via that route?

1964 - 07 July 2014 02:04 PM

Nevip, couldn’t the dad argue he is the primary carer of the daughter and have a RTR to ESA & HB via that route?

I thought about that.  To be honest, I don’t know what the ECJ in Teixeira had in mind when talking about “primary carer”.  Did it construe the term narrowly to mean only one parent with whom the child was living, or did it mean either parent with whom the child was living?

I’ve yet to have it challenged when I’ve argued that both parents can be treated as primary carers but I suppose there’s always a first time!

nevip - 07 July 2014 01:56 PM

He will have been adjudged not to have a right to reside.  His appeal will be based on the right to reside arising from a temporary incapacity for work, provided he can show that he has not broken his link with the labour market.  In the meantime his wife (if she is the primary carer of their child) could claim JSA based on the child’s right to education, following the ECJ’s judgement in Teixeira.  She should also claim HB.

Wouldn’t a JSA claim fail a HB claim? as under the new rule if there is a break on the benefits even if an EU national receives JSA would not be entitled of HB? also how can he prove he has not broken the link with the labour market??

So far we have provided the daughter’s link to full time education and that he was working - sent in p45 p60. they still maintaining their decision.

Confused.com really!!

By the way many thanks for the replies! Much appreciated!!!

I suggested that his wife claims JSA and HB.  Her right to reside will have nothing to do with her husband’s current status under EC Directive 2004/38.  It is based solely on her child’s right not to be discriminated against with regard to her right to education under article 12 of EC Regulation 1612/68, after being installed with her father while he was exercising his right as a migrant worker, or following the exercise of that right. 

If the father has claimed ESA immediately after signing on and looking for work then he won’t have broken his link with the labour market at that point.  A break in benefits is not the same as breaking the link with the labour market.  The act of looking for work can maintain the link, if properly evidenced. And, as 1964 has suggested, you could also argue that he has the same right as his wife, that of a primary carer of a child in education.

There was a NI case where a husband was found to have derivative R2R where his wife was the primary carer. Can’t find the reference where I am at the moment but someone might come up with it. Reg 15A off the 2006 regs allows being primary carer to be shared with some limitations: have a look at para (7) to (8).

Yes, both members of a couple can have a derivative right to reside under Reg 15A.  But there is another possible difficulty - depends how pedantically you read Reg 15A.

I know mosts contributors on here are quite scornful about the Immigration (EEA) Regs 2006 - people view those Regs as a necessary ritual formality which is required in order to adopt Directive 2004/38/EC and some more recent European Court decisions.  The prevailing opinion seems to be that we shouldn’t get too hung up on the fine detail in the 2006 Regs and in particular appellants should not be discouraged by the restrictions on job seekers that have been implemented this year: the Directive and decisoins will always trump the Regs.

But just assuming for one moment that the Regs do indeed apply as they stand until a court says otherwise, there is a (pretty obscure) problem in the way Reg 15A is drafted: a person only has a derivative right to reside as a Teixeira carer if they do not have any other right to reside.  Now obviously the intention here is that they don’t need a Teixeira right to reside if they have another one already.  But it does create a technical difficulty if the wife in this case claims JSA because in doing so will she not by definition be exercising her right to reside as an Italian jobseeker and therefore will not need to rely on her underlying Teixeira right?  That in turn would mean she cannot get HB, nor could her husband if he only had a right to reside as the spouse of a jobseeker.

Another problem with Mrs claiming JSA is that DWP will undoubtedly notify the Council she has been awarded JSA as a jobseeker irrespective of her derivative R2R and the Council will initially refuse her HB claim even if you subsequently succeed in persuading them she has a derivative right to reside as a primary carer.

So I think the more straightforward route for this couple in terms of HB is for Mr to be the HB claimant: either he retains his worker status, having gone from working to signing on to being sick with no significant gaps in between; or he is a Teixeira carer in any case.  I realise that doesn’t deal with the problem of having no money for living costs pending DWP’s MR, but it is the best way to protect the HB claim I think.

That’s a good point.  I think that if there was a real risk of the child’s right to education being frustrated by HB not being payable, tribunals and courts in the UK would fall back on Teixeira reasoning (EC regulations have direct effect and are binding on member states –“regulations operate to confer rights on individuals which the national courts have a duty to protect”, Munoz, para 27) but yes, that might not help in the short term.

Agree that he should pitch for derivative right of residence status but he also appears to have retained worker status so should be exempt from HRT.

Looks like he worked less than a year so he retains worker status until he has been signing on 6 months. Appears he claimed ESA just under the 6 months so hadn’t shifted to jobseeker status when he claimed ESA. As a retained worker there should be no problem moving between groups (CIS/4304/2007) signing on to temporary illness. He retains worker status as long as he remains temporarily ill and can claim ESA and HB/CTred without problem.

I think the route problem is that decision makers (and so many others who come into contact with this) can’t be bothered and assume jobseekers allowance means jobseeker status simply because they use the same word.

The NI case in which the husband whose wife was the primary carer of the child in education was found to have r2r was MA v DSD (JSA) [2011] NICom 205, C2/11-12 (JSA) in old money.

Thank you very much for your help- I will be lodging an appeal to the HB team on grounds of ‘client should be exempt of HRT because r2r derives from daughter being in fulltime education’ and also will try the worker status too as client has had no breaks in the labour market neither in benefits - transitional period should cover him.
Will let you guys know whatever the decision is - I might need further assistance 😊
Many thanks!!!!!

Hi There!

LA responded to our appeal and they are arguing that because client has never been an employed earned in the UK the Teixeria judgment does not give him right of residence - as the judgment doe snot apply to self employed earners (client was self employed).

Thus they are arguing that he does not pass the right to reside test because there is no evidence that he was ever an employed earner. They arguing that self employed persons do not retain their status whilst in duly recorded involuntarily unemployment.

They are further arguing that: ‘Client previously received HB whilst he received IB JSA because at that point EEA nationals in receipt of IB JSA bypassed the right to reside test. As his claim ended on the 15th Apr 2014 because he made an ESA claim, he failed the tight to reside test because he is not a worker or self employed and he lost his status of self employed as soon as he became unemployed. He is now economically inactive and can not receive HB unless he has a private medical insurance and sufficient means to support his family without being a burden on the stated. Client’s income is considerably below the applicable amount for his family so he can not be deemed to be self-sufficient.’

The LA will be considering to revise their decision only if client can provide documentary evidence that him, or his partner has been an employed earned in genuine and effective employment, the nature of which is not marginal or ancillary, whilst resident in the UK, and whilst being the primary carer of his daughter.

Unfortunately, client has been a self employed, and can not provide the above requested docs.

Anyone knows any other routes we can argue against their decision????????

If he was self-employed then as the law stands he and his children do not have the same rights as if he had been a worker.

It does sound as if the Council is correct: after he was self-employed he entered the job market as a work seeker.  That is a completely new economic status and because he went sick before he found work as a worker he has lost that right to reside.  He left the job market before he had properly joined it in other words.  He cannot rely on having a Teixeira right of residence because that only applies to the children of workers as the law stands.  Children of people in other economic spheres do have some protection under the Directive but only in the event of the principal EEA national’s death, divorce or departure from the country leaviong them stranded.  None of those seems to apply here.

So it seems the only way they can get anything at all is for the wife to seek work, which will enable her to claim JSA and CTC immediately, but not HB: she will just have to hope that she finds work pretty quickly, either enough to live without claiming HB or at least effective and genuine so that she can get HB as a worker.

Czop (ECJ) para’40:

“Article 12 of Regulation No 1612/68 must be interpreted as conferring on the person who is the primary carer of a migrant worker’s or former migrant worker’s child who is attending educational courses in the host Member State a right of residence in that State, although that provision cannot be interpreted as conferring such a right on the person who is the primary carer of the child of a person who is self-employed”.

Thus he needs to argue on appeal that “he retains his worker status, having gone from working to signing on to being sick with no significant gaps in between” (HB Anorak, above).

I think the OP is saying he was self-employed, not a worker, isn’t she?

HB Anorak - 28 July 2014 01:55 PM

I think the OP is saying he was self-employed, not a worker, isn’t she?

Yes, sorry scrap that last bit.  Been re-reading too many ECJ decisions this morning and missed the blindingly obvious.

Czop and Punakova do not decide that there is no right of residence accruing to the primary carer of the children of a formerly self employed person.

Judge Jacobs said as much when he gave judgment in those cases following the CJEU decision (Secretary of State for Work and Pensions v Lucja Czop [2012] UKUT 351 (AAC); [2013] AACR 6 (so a reported decision)):

4. In the event, the Court did not need to answer my questions, because Ms Czop had a right to reside under subsequent caselaw. The Court decided that a self-employed person was not a worker for the purposes of Article 12 of Regulation 1612/68/EEC. [....]

C. The questions referred to the Court of Justice of the European Union
7. The court did not answer the questions I summarised in paragraph 3 above. The issue whether a primary carer may have a right to reside of a formerly self-employed primary carer will have to be decided in an appropriate case.
8. I note that the Court directed oral argument on, among other matters, ‘the question whether the refusal to grant income support constitutes discrimination within the meaning of Article 18 TFEU. In the event, it did not refer to that issue in its judgment. It does not appear to be covered by regulation 15A of the Immigration (European Economic Area) Regulations 2006 (SI No 1003), inserted by paragraph 9 of Schedule 1 to the Immigration (European Economic Area) (Amendment) Regulations 2012 (SI No 1547).

So if this really is the only potentially arguable right to reside the FtT could make a referral (note that some other cases were potentially going to be referred with the same question but as far as I know they were decided in favour of the claimant for other reasons- no doubt as soon as a referral is suggested in the present case the SSWP (if joined) would bend over backwards to find a right of residence elsewhere as he did in Czop).

So this remains live then Martin.

http://www.cpag.org.uk/content/‘baumbast’-residence-rights-more-questions-answers

Martin Williams - 28 July 2014 04:39 PM

- no doubt as soon as a referral is suggested in the present case the SSWP (if joined) would bend over backwards to find a right of residence elsewhere as he did in Czop).

I wonder why!!

I have always said the self-employed should have the same derivative right as an EU worker, and as is mostly the case (The St prix case being an example) the Govt/SoS/DWP will take it to the wire all the time. The recent DWP UC FOI case springs to mind.

So, I guess the self-employed just have to bide their time till a case is referred, even then, I may be wrong but I would prefer a case that says so.

nevip - 28 July 2014 04:57 PM

So this remains live then Martin.

http://www.cpag.org.uk/content/‘baumbast’-residence-rights-more-questions-answers

Hmmm.. haven’t gone through all the points that Graham made to check current status. I guess what I could say quickly is that the rights of children in education of formerly self employed people and of the primary carers of such children remains live.

We were involved in a further case before UTJ Jacobs which collapsed as had other right to reside. Looks to me like there will be a referral eventually.

Strange day today.

Cl is Czech National, has eight year old daughter
Cl has Chronic Degenerative Disease diagnosed in 2013
Cl worked from 2009 registered on Home Office WRS
Cl worked to late 2012 and then went onto SSP, this ran out and she claimed ESA and DLA Successfully
Cl now wish to gain permanent right to reside

Will EEA Regs assist, I seem to think not as her illness did not arise from her occupation, is there anything I am missing?

As an aside if EEA national loses Jobseeker Satus and HB and have children doesn’t S17 of the Children’s Act kick in, which means LA has a duty of care, if they have duty of care but can’t pay HB, then how can they be paid? Or am I missing something again

If the claimant’s incapacity for work is permanent (indefinite, not temporary) she has a permanent right to reside irrespective of how the condition arose: the industrial illness condition is only required where the person had been legally resident for less than two years at the point when s/he gave up work.

And for this purpose it does not matter whether she was a worker or self-employed person: both are covered by this rule

HB Anorak, Cl is on DLA and will have to be reassessed, is that indefinite? Or is that temporary ie between two fixed dates she is entitled, then reassessed at date X if found entitled then claim continues, if not entitlement ends

I think it comes down more to an assessment of whether there is any realistic likelihood she will be capable of work again in the foreseeable future - even if her DLA/PIP gets reviewed from time to time, that is just one factor to take into account.  Although it is not compulsory, it might be advantageous in her case to apply for a permanent residence card because that will be unanswerable in any future dealings with DWP or local authority in which R2R is at stake.

From the way you described it, it sounds like:

- her condition is bad enough now to make her unfit for work, and
- it is only going to get worse, not better

That sounds like a permanent R2R to me.  Do you know more about the diagnosis - is it something people recover from?