PC & discretionary leave to remain

Hi again

I have a Romanian client who has discretionary leave to remain from April 2012 (Home Office docs and passport are NOT stamped or include NRPF) but his PC has been refused stating that he has no R2R & is not habitually resident.

Can anyone advise what the Regs are to get this decision overturned?  He has been in the UK since 97, was employed in UK but the UKBA said that his employment was illegal and had his registration revoked.  He appealed and this was allowed in his favour (Jan 12).  He has all his wage slips, references from his employer etc etc which he sent to PC.

He has had no income since his registration was revoked and we have managed in the last 2 months to get him DLA HRC.  This is all he has been living on.  Surely the decision is wrong!

Many thanks

I’ve been looking hard and can’t see that this is wrong.
You do have a right to reside if:
- you are a refugee (ie, made a successful claim for asylum);
- you have “exceptional leave to remain outside the Immigration Rules”: a category that could not be created since 2002, and was an alternative to asylum in special circumstances; or
- you have “humanitarian protection”, which is what replaced exceptional leave in 2002.
The category of discretionary leave was also created then, but seems not to create any automeatic right to reside.
This is from reg 2(4)(h) and (hh) of the State Pension Credit Regs which sets out the full list of people who have a right to reside.

CPAG (pg 1444) states that if someone has discretionary leave that they are exempt from the HRT.

I agree - and I would say that his DLR trumps his EU status and therefore he does have HRT and is not subject to R2R.

I have not had any problems getting clients with DLR full access to benefits.

I have had ridiculous decisions from the Pensions Service though - an ex-Gurkha with ILR was refused under HRT (he was of course exempt) -we went for a review thinking it was relatively straightforward - after a complaint due to delay the review was refused and we had to appeal. We did then put further pressure to have the appeal heard quickly - they finally changeD the decision but it took 5 months from start to finish - ridiculous.

So don’t trust the Pensions Service with issues around immigration status.

I was not entirely clear though from your post if you have proof that the client has DLR?

While may have rights under EU law, does not mean that does not continue to have rights under domestic law which may exceed those granted under EU law. As such, his DLR is relevant if it gives him greater rights than those derived from his status as an EEA national.

Try this on the Pension Service.

DMG:
“071202 The HO may refer to
1.
limited leave given to refugees or
2.
exceptional leave to remain or
3.
leave to remain on an exceptional basis or
4.
humanitarian protection or
5.
discretionary leave.

A claimant given one of the above is not a person from abroad (or a person not treated as in GB for SPC purposes) for as long as the leave lasts, including periods when he/she has applied in time for an extension of leave.”

As discretionary and humanitarian leave replaced exceptional leave as leave granted outside the immigration rules, using the Interpretaion Act references to exceptional leave should be read as humanitarian or discretionary leave.

Thank you - I had thought that I was loosing my marbles!  The Pension Service have both his passport and Home Office dcs that clearly state his DLR.

I have just run this past our immigration worker, who was very suprised that your client was given DLR as this is not normally given to EU nationals at all - I had in the past come across the odd A8 national who had some sort of leave to remain in the UK prior to accession, who was then not subject to RTR after accession but this was rare. However post accession, leave to remain was not required so I have never come across anyone who was given leave after their country joined the EU!

However it could be that if your client was not self employed, had no family member rights etc and no worker aurhorisation, he could technically have been removed, so perhaps the DLR was given because of that?

If you are absolutely sure (which seems to be the case as you have proof) that he has DLR he will not be subject to RTR. Did he have the assistance of an immigration lawyer to get his leave? You could check with them to clarify why this was given, or contact UKBA..but it might be better not to rock the boat in an unusual case such as this!

Hi again

Just had a call from PC advising that they are stumped and have sent an email to the Home Office to find out why the claimant has been given DLR when he is a Romanian National…

There is nothing as far as I am aware that prevents the SSHD from granting leave to remain outside the immigration rules to an EEA national.

Of course, in this particular case it may be that the leave to remain was granted prior to Romania joining the EU.

I have to say that if the DWP accept the client do have ELR then they need to decide the case and award benefit- it is not for them to check with the Home Office why leave was granted (although they could check if the leave is as stated which is a different matter).

The SPC Regs at Reg 2(4)(h) make it clear that someone with ELR cannot be a person not in GB- regardless of what state they have come from.

Hi Martin

Can you ring me?

I think the normal immigration rules are not applied to EU nationals because of s 7(1) of the Immigration Act 1988:

“7 Persons exercising Community rights and nationals of member States.

(1)A person shall not under the principal Act require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable Community right or of any provision made under section 2(2) of the European Communities Act 1972.”

Presumably if you are not exercising community rights you can be subject to the usual rules and granted leave to remain.

Damian-

I agree that the effect of section 7 of the 1988 Act is that an EEA national does not need leave to enter or remain -if they have a right of residence. I think they do if they do not have such a right (ie if they do not have an enforceable community right).

In any event whether or not there are situations where an EEA national might require leave (note they can never be person’s subject to immigration control in any event because that is all about non EEA nationals), the issue is that section 7 certainly does not prevent them from seeking it or prevent the SSHD from granting it (whether or not they already have a right of residence)- it just says they don’t need it.

Lots of people get things they don’t need all the time!

EEA nationals getting leave is a favourite theme of Judge Rowland (R(IS)6/08 and Secretary of State for Work and Pensions v SW (IS) [2011] UKUT 508 (AAC) both make the point that EEA nationals can (and in some cases would be well advised to) get leave (I have to say I think the latter of those cases is wrongly decided for a range of reasons but at least on the point about the ability of an EEA national to get leave from the SSHD it is ok).

Martin

Thank you everyone and I will let you know what happens!