Right to reside after 12 years residence

I can’t help thinking I’m missing something obvious here, any thoughts are welcome. My client is a Polish national who has lived in the UK since 2002. She has left her long term partner and father of her two children due to domestic violence. She has been refused income support on the grounds she does not have right to reside.
She originally came to work as an au pair, for two years. She then met a British man and formed a long term relationship and had two children, now age 3 and 6. She worked for another short period in 2005 but has not worked at all since the children were born. Her partner was self employed, and she believes they claimed no benefits apart from child benefit until 2010, when tax credits were claimed. In September 2013, she left due to domestic violence. She claimed income support as a lone parent with a child under 5, but was refused on the grounds she does not have right to reside. DWP have said that because she has not worked since the children were born she has not completed the necessary 5 years of residence exercising treaty rights (i.e. as a worker) and cannot derive any rights as a carer of a child in school.  She hasn’t completed 12 months registered employment since Poland became an accession state in 2004. She has had to claim Jobseekers allowance. We have appealed the income support refusal, but she seems to be falling through every gap in the regulations. I have submitted that she has acquired the right to reside as a self sufficient person for more than 5 years, because she was not claiming benefits but DWP have rejected this without explaining their reason.  Anyone have any suggestions?

Even though they are estranged, if they are still married she could have RTR as his wife.
Contact the AIRE centre who are particularly interested in DV cases and EU migrants.
I would also be asking for a statement of reasons why they refused on the self sufficiency thing.

They were never married, that’s part of the problem. It’s at the appeal submission stage at present, we’re just waiting for the hearing date. I will contact the Aire centre, unless anyone can point out something really obvious I’ve missed.
Thanks

Even if they were married it probably wouldn’t help because the EC Directive demands that she is a family member of an EEA national other than a British national unless he has exercised Treaty rights.  Self suffiency also requires comprehensive sickness insurance.  CPAG suggests it’s arguable that this could simply mean access to NHS care under the EC co-ordination rules.  I think you need to do a lot of digging into the jurispudence of the ECJ on this one.

Yes, I’ve done a fair amount of digging already and my client seems to be falling outside every provision. She seems to have even less protection than a non EEA national would have in similar circumstances. There is a precedent about the comprehensive sickness insurance being covered by having an E111, one of my colleagues managed to argue that successfully at UT.

“is a precedent about the comprehensive sickness insurance being covered by having an E111, one of my colleagues managed to argue that successfully at UT”.

Yes, that’s been posted on here recently.  Was it you?

It was my colleague Kurt. The case was CH 15 2009

Is it possible for to claim permanent residence as she has been here for more than five years? That way entitlement should be established, shouldn’t it?

Judge Ward, the author of CH/15/2009, has recently revisited the issue of self sufficiency and sickness insurance in an absolute monster of a decision, CJSA/3172/2012 VP v SSWP.  It weights in at 115 paragraphs/39 pages and so far I have only had a chance to skim read and pick out the highlights, but it appears the Judge isn’t having NHS treatment as comprehensive sickness cover (In CH/15/2009 the issue was slightly different as the competent state for the cost of medical treatment was not the UK - in those circumstances NHS care at another state’s expense counted as comp sickness cover).

I have often thought that the widowed or estranged European ex-partner of a British national is in the most unfortunate position.  While there is nothing in principle to stop them from applying for leave to remain under domestic immigration law, there isn’t any recognised procedure and the Home Office would find it incomprehensible if an EU national did so.  Yet a non-EU spouse in identical circumstances would have public funds restrictions lifted in the short term uner the DV concession and a good chance of ILR in the long term.

I suppose the official response would be that if an EU national wants to stay in the UK, there’s nothing stopping them - just join the job market and claim JSA. Which this client has done, even though she belongs to a client group that is excused from job seeking conditionality when the claimant is British or Irish.

VP May not be the last word on CSI. It may not even be Judge Ward’s last word on the issue…..watch this space.

past caring - 24 February 2014 11:00 AM

VP May not be the last word on CSI. It may not even be Judge Ward’s last word on the issue…..watch this space.

Eee that sounds dramatic - like a trailer for CSI, maybe the latest in the franchise is CSI Brixton. Well if youve managed to persuade Judge Ward that hes been going wrong on this all this time I’m well impressed - cant wait to see how you won him over

It’s not quite that - and we haven’t won yet.

I’ve currently got a case with Judge Ward that deals with similar issues to VP but (with respect to the AIRE Centre) with much better facts. We were due to have our decision published before VP but the SoS asked for an extension of time to respond to the Judge’s directions on a couple of issues that came up after the oral hearing - one of these was CSI. We may be going back for a further oral hearing on this.

[Oh - and I really need to do something about my details - I’ve not been at Brixton for the last two years. Am now at LB Camden welfare rights. Ros? Shawn? How do I sort this?]

hi simon

you’ll need to complete a new registration with your current work details -

http://www.rightsnet.org.uk/register

cheers ros

Hi Ros - I am trying to register but I don’t seem able to. I am getting a ‘user name not available’ message regardless of what variation on past caring I try (even ‘past/caring’ doesn’t work and I’ve definitely not had that one in the past) - in fact I cannot even register with my proper name and I’ve never used that before. I did initially try with using the subscription code that Elora sent me, but that wasn’t working either, so then I just tried for the forum. Am using Firefox - any thoughts?

hi again - elora will contact you tomorrow to sort it out - cheers ros

Sorted, cheers. Would have preferred a little more anonymity, but I guess from Shawn’s point of view this is probably a good way of keeping me in line. ;)