EU Citizen, Right to Reside and Cancer

Clt is an EU Roma national has been here for 15 years, worked for 13 and half of them and then fallen ill with cancer. Made claim for ESA and DLA. DLA accepted and in payment. ESA claim denied on R2R and HRT grounds. I am seeing a lot of Roma being denied on R2R & HRT grounds even when it is blatantly incorrect to do so.

Have sent all evidence of work, child in school, wife in part time work, but DM still says no set out the necessary directives, Regs, but DM still says no,no,no. Have applied for a MR.

Clt received texts stating your ESA payments will begin on X date and then never materialised, this happened on three occasions, all the time Clt had cancer and was receiving chemo. I am at the end of my tether regarding this case, as DWP have misapplied the rules and cruelly led client to believe something which was patently untrue.

Any advice welcome.

I think all you’ve got is the complaint/MP/DWP liasion options. If you’re lucky the MR DM will be on the ball and get it sorted out.

As an aside, be careful about confusing Romanians (ie nationals of Romania) with Roma (an ethnic group). Lots of Roma are nationals of Turkey and ex-Yugoslav states that are not EU.

If he is an EEA national, has 5 years of unbroken work under the EC Directive (including meeting any registration requirements), his child was installed with him while he or his wife were working here and then went into education, and, his wife’s work is more than marginal and ancillary the he has hit the right to reside trifecta.

The quarfecta if you include article 17(b) - stopped work after 2 years due to a permanent incapacity to work.

Does he not meet the contributory ESA conditions irrespective of any R2R issues?

Bryan - raising concerns via the JCP District Manager based in Maidstone may well get things moving - we find that complaints team there very helpful - steve . murphy AT . kent . co . uk if you need contact details.

If he is Romanian (I assume that’s the case, please specify correct nationality if not) and he left work before 1/1/14 there’s a risk that he was not working legally and that he has therefore neither retained worker status nor permanent residence. But iif he has been working since before A2 accession it is less likely he worked illegally and he might even have pre-accession ILR

No Clt is EU National - Czech.

In that case there still a slight risk that he cannot rely on work done during the accession period, but there has been a longer window since it ended and in particular if he worked for at least two years from 1/5/11 before becoming either temporarily or permanently incapable of work he would definitely have a right to reside now: either permanent or retained worker status, he’s covered either way you slice it.  So if he was still working in May 2013 he should have R2R now.

The same comments abour pre-accession LTR apply here as they would if he were Romanian: if he was working legally under the terms of his UK visa immediately before A8 accession in 2004 he didn’t need to register his work; and if he already had ILR that’s for keeps - his country of nationality joining the EU doesn’t change that.

It seems overwhelmingly likely this client has a right to reside, but it is equally lilely that the DWP has not even begun to think about any of this: it really does seem to be “computer says no” at the moment if an EU national is not signing on for JSA.