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Right to Reside for ESA
Hello
I have a client who has been turned down for ESA, as she has failed the right to reside test. Her situation is as follows:
She is originally from Morocco but has a Dutch passport and has lived in the UK since 1999. She married a British citizen (who worked), but they divorced approxmately 4 years ago. She suffers with mental health problems and has never done any paid work. She has 2 dependents and receives Child Benefit and Child Tax Credit and has been receiving Housing Benefit and Council Tax Support since 2011 - she was very unwell and hospitalised after her divorce, so did not claim Housing Benefit and Council Tax Benefit prior to that. She has made a claim for ESA and been refused, as DWP state that she does not have a right to reside in the UK.
I have checked the rules and cannot find anything which might help us to challenge the decision, as she has not recevied a particular benefit (such as HB, CTB, IS, PC or JSA) since April 2004 and she does not qualify as a worker (as she has never done paid work).
I thought the fact that she has 2 children (ages 19 and 14) and gets Child Benefit and Child Tax Credit and the fact that Housing Benefit and Council Tax Support is still being paid (even though they are aware of the ESA decision) would help, but I cannot find any rules which may help us challenge it.
I would be grateful of any advice please.
Thanks.
Dave
Had the husband every worked in another EU country?
What nationality are the children?
She is originally from Morocco but has a Dutch passport and has lived in the UK since 1999.
Did she have some sort of leave, to enter or remain, when she first came to the UK?
I thought the fact that she has 2 children (ages 19 and 14) and gets Child Benefit and Child Tax Credit and the fact that Housing Benefit and Council Tax Support is still being paid (even though they are aware of the ESA decision) would help, but I cannot find any rules which may help us challenge it.
On what right of residency have the LA based her entitlement to benefit?
She may have gained permanent right to reside but alot dependent on the facts and circumstances.
There is often a lot of discrepency between benefit paying bodies such as DWP/LA/HMRC when it comes to right to reside. It is possible that the Local Authority may have done a rtr assessment in 2011 and thats why she is getting benefit. Danger you have, is if you seek confirmation of this rtr you may trigger that benefit to be suspended or stopped.
Given her length of stay, she may be eligible to apply for British Nationality, if so that would alleviate all concerns over rtr and would ensure all other benefit entitlement without risk of overpayment.
If they were married for 5 years or more after he had worked in Holland then she’s spent 5 years as the spouse of a migrant worker (if he’s worked in Holland he’s a worker same as everyone else) thus she’s got a permanent R2R.
UK nationals become EU nationals once they’ve exercised treaty rights i.e. by working in another member state.
Also, did she come in on a spouse visa, when did she get her Dutch passport? If she had leave to remain for 12 months immediately before 1/5/2004 she might have transitional protection. ( I am wooly on that but there’s certainly something to look at if she was here on a visa ‘99 to 2004)
Thank you Dan.
My client married her ex husband in Holland in 1995, they then came to the UK in 1998 and divorced in 2011. (She said she also worked in Holland from approximately 1990-1998 - not sure if this is relevant)? From your information, this presumably meets the Right to Reside requirement? If so, do you know which Regulation I need to challenge the decision?
She said did not have a ‘spouse visa’ when she came to the UK, as she was allowed to enter with her Dutch passport and the fact that her husband was a UK citizen.
Thanks again.
Dave
we need hubby’s work history but it’s looking promising. At a push if you’ve got his NINo you can mount a Kerr argument that JCP should disclose his NIC record which should confirm whether he was working or receiving credits which will be enough to show worker/ retained worker status and get your client over the hill.
Thanks for the continued advice Dan.
Not good news though - I have spoken to my client and she informs me that her ex husband now lives abroad and does not want anything to do with her, so we cannot obtain details of his work history or NINO unfortunately. The other slight problem I have is that the ESA decision was dated 14th May, which means we are over the 1 month time limit. I have been in contact with DWP Complaints about this, as we have never actually received the decision despite it apparently being sent twice. DWP complaints said that I can email a copy of my Mandatory Reconsideration to them explaining that it was their fault for the delays etc., so it should not be a problem. However, I am wondering if I need to get the challenge to the decision in now, while still assessing the situation?
Dave
Subject Access Request to HMRC. The Tax Credit award will have been joint so if she’s lucky you might find his NINo buried in their records. Then you’re on to request his NIC history.
Get the recon in arguing permanent right; you needn’t provide any evidence, just keep the challenge live. HMRC should reply within 8 weeks and you won’t have hit an appeal hearing by then. It’s late but by the sound of it that’s their fault so no worries there.