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R2R ESA
A EU national client has just been awarded ESA but I am struggling to see how she qualifies for this.
She came to the UK from France in 2005, from this time until 2008 she lived and was financially supported by a non-EU national partner who worked. She did not have health insurance. From 2008 until 2010 she worked part time 20 hours per week, until giving up work to provide child care for her daugher (born in UK in 2007). She was financially supported by her partner(became husband in 2012) again until 2013 when they seperated. From then until the ESA claim she lived from place to place without claiming benefits possibly doing illegal work (unconfirmed).
She claimed ESA for mental health difficulties, she also has pregnancy related health issues. She may have had the mental health issues for a few years.
I understand that to be entitled to ESA she needs to either to have established a permanent right to reside due to 5 year legal residence or through retaining worker status while temporarily incapacitated.
From the info given, I cannot see how she could have established a permanent right to reside through 5 years legal residence, nor could she have established a right to reside through a family member as her partner/then husband was not an EU national.
That leaves retaining worker status while temporarily unemployed. Again she stopped work in 2010, has not worked since, and gave up work to provide child care to daughter. She is unable to work now temporarily due to mental health issues but can this period be linked to her work 5 years ago in order to be entitled to ESA.
If its discovered that her health problems go back to 2010 could this have resulted in her retaining worker status while temporarily sick?
I would imagine the DWP has decided she has a RTR on basis of being the primary carer for her daughter (on presumption the daughter is at school and is with your client). She only needs to have worked at some point in the UK to have a RTR on that basis.
sorry I meant to mention that her ex husband has full custody of the daugher so unfortunately she cannot gain a derivative right to reside.
It is odd then- must admit I’m struggling to see how she has a R2R. I’m sure I’m missing a trick somewhere (usually do with R2R….)
Could she have a right to reside as a family member until she’s divorced?
What is the husband’s nationality? You refer to him as ‘non EU,’ is he a non-EU EEA national?
What is the husband’s nationality? You refer to him as ‘non EU,’ is he a non-EU EEA national?
Along similar lines there is the possibility that husband has dual nationality? As an example we see a fair number of Somali clients who also have Dutch/Swedish passports and as such count as EEA nationals.
Yes, that’s the only other explanation I can think of too. Either that, or the DWP have paid ESA in error (which is most unusual in RTR cases in my experience!)