Hi,

I would be grateful for some help with this matter (if Martin Williams or Tim Samuel happen to read this posting I would be grateful of your comments).

My client is a Polish national. She has one child (DOB: 25/08/04) who is a British National. She has made a claim for income support which has yet to be determined.

The claimant first came to the UK in Feb 2000 for a short visit. She stayed with her cousin - who is her only relative (apart from her son) in the UK.

The claimant returned to the UK in January 2001. On this occasion she came as a student and had the appropriate visa. The course lasted 2 years until Feb 2003. During her period of study she was supported by her family in Poland.

Whilst studying the claimant met her future husband. They married in December 2003.

After her course finished the claimant returned to Poland for a few months but came back to the UK on 26th August 2003. We have not confirmed what her status was at this time.

The claimant after her marriage went back to Poland where she applied to enter the UK as a spouse. The application was allowed and she was allowed entry from 20th April 04.

It appears that the claimant has never worked in the UK.

The claimant's husband is originally from Iran. He was an asylum seeker, granted refugee status and became a British national in 2006.

On 27th July 2007, the claimant was issued with a 'residence permit'. The type of permit is described as 'settlement' and it is stated that the claimant has 'Indefinite Leave to Remain in the UK'.

On 31st August 07 the claimant's husband left her. He is in full-time employment.

Does the issue of a residence permit with a stamp of 'indefinite leave to remain' result in the claimant having an absolute right to reside without any restrictions on her right to claim benefit? Can the residence permit be withdrawn by the Home Office given her circumstances?

If the claimant does not have a right to claim benefit by virtue of the grant of ILR can she establish a right to reside by any other route or are there any other arguments that she can use to successfully claim benefit?

Her right of entry as a spouse was given to her before Poland joined the EU (May 2004) under British immigration law. That would have been for 2 years in the first instance. She could then apply (still under British domestic law) for indefinite leave to remain on the grounds of being a spouse (= settled status). I don't think that anything described in the terms you state has anything much to do with residence permits in EU law - it would be the same for anybody given leave to enter for settlement on the grounds of marriage to a British resident who has indefinite leave or the right of abode.

Problems only arise if the marriage breaks down within the 2 year period. In domestic law once someone has indefinite leave to remain/settled status it would be unusual for it to be withdrawn (I don't say impossible), though it would be lost if she left the UK for a period of 2 years or more.

This looks like one of those cases where the fact that she is now an EU national obscures the fact that her rights have been determined under British domestic law. EU law cannot derogate from rights arising independently under national law.

A person with indefinite leave to remain is not a person from abroad and not subject to immigration control unless the leave has the express "no recourse to public funds" condition. It would say on the certificate / letter giving her indefinite leave if that condition was attached, and it would be unusual for a spouse.

She should have no legal difficulty in claiming benefits on the back of her right to reside, but if she does my guess would be that DWP will get hung up on the fact she is now an EU national. They are always not good at recognising other forms of rights of residence, and may have to appeal to get it sorted out.

Ariadne,

Thanks for that - my concern was that as from 1st May 04 that she no longer required to seek leave to enter/remain that any application for ILR may not have been relevant or issued correctly and that she would be subject to the I(EEA) Regs 2006 and the A(I & WR Regs) 2004.

However, from what you're saying this should not be a problem.

Thanks again.

Cliff