Hello,

I am looking for some help and assistance...

I have a EEA national (Greek), who has been residing in the UK, and has recently been awarded Pension Credit. From what is known, the DWP have not undertaken any assessment of the 'Rights of Residence Directive'.

As a pensioner, I think that his right to remain in the UK, is subject to Directive 90/365/EEC (rights of pensioners to reside in other EU member states).

The HB Guidance Manual (Chapter 7, annexe c), refers to a form to be sent to the Home Office to clarify the position of the person claiming benefits. For obvious reasons I am hesitant to do this, without knowing more about the consequences.

Can anyone say whether or not CTB is payable, (HB is not an issue, as the person is an owner-occupier).

Many Thanks

As far as I am aware, The State Pension Credit Regs (SI2003/325) added State Pension Credit recipients to those who are exempt from the PFA rules (reg 14)

After 20 years here, i would not have thought an EEA national would have a problem with the right to reside test - but i guess there are no guarantees.

the reason for thinking this is:

1) the right to reside test is only supposed to be triggered if someone has been outside the Common Travel Area in the two years prior to the claim.

However if it is triggered

2) does such a pensioner have other EU rights? - for example does he have a right to reside because of Regulation 1251/70 or EC Directive 75/34 - rights of residence for retired workers and retired self-employed?

3) even if his only right to reside is based on Article 18 and he is subject to Directive 90/365/EEC all is not lost. As long as the years of residence have been lawful, and depending on the facts of the case, he should either gain a right to reside:
a) arguing that such long term lawful residence puts his case on all fours with the Maria Sala case and that ECSMA provides him with a right of residence (though of no direct effect the ECJ in Maria Sala seemed to imply that ECSMA was one basis for their decision)
b) under the long residence concessions in the immigration rules
c) otherwise arguing that this is a case where solidarity to another State's national should apply (see earlier postings on case law re right to reside)