i have a UK citizen who has lived in the US for 30 years. he has just been deported to the UK--with just a weeks warning--leaving his wife and children behind as they are US citizens. the deportation was due to an offense committed more than 8 years ago for which he served a short sentence and is in line with a new US policy on deportation!

he has now been told he cannot claim any benefits due to habitual residence.

i don't usually deal with british citizens--can anyone tell me if the hab res test applies or did i see something a while ago saying that it didn't apply to UK citiznes. he has family in the UK and can not be resident anywhere else as he wont be readmitted to the states.

thanks

The habitual residence test is applied to UK citiizens. They can avoid it under EEA worker rules, so if he found work he could then claim extra money, or benefit if he lost the job. (Of course he wouldn't need the money so urgently).
I've heard it is also possible to qualify as an EEA worker on the basis of looking for work, but I think that has only worked on appeal.
And of course he can appeal the HRTdecision,he presumably will have to be resident because he will have no right to live anywhere else.
None of which will get him instant benefit, or housing eligibility etc.
The thing I always hate about the HRT is that it always seems particularly hard to prove you are settled because people cannot settle without money, so they do have to live out of suitcases in friends houses etc. Which looks great when the visiting officers come round.

He cannot qualify as an EEA worker unless he has taken advantage of EU law to move to a different member state of the EU to work. It seems like he has only been to America. He could of course go and work in an EU country, for at least 6 months and then come back, under the Swaddling case.

Appeal is the obvious answer, ask for this to be expedited if he has no other source of help. Repeat claims should also annoy the DWP into submission eventually.

Have i missed the point or is he not exempt because he was deported? Check JSA regulation 85(4)(d), IS reg 21(3)(d) etc.

With respect, i don't get the need to go to Europe for a period of 6 months. I do not recall anything in the Swaddling judgment or any other that requires a particular length of residence to either become a worker for Regulation 1612/68 or an insured person for Regulation 1408/71. In fact the imposition of minimum periods of residence by Member States has been disapproved of (Case 39/86 Lair)

26 weeks is the required period of residence for DLA, AA etc but surely what Swaddling gives us is that a person who comes within the personal scope of Regulation 1408/71 can satisfy past residence tests by residence in another EU state.

I agree. i don't think EEA and swaddling have any relevance to this case. i have now checked the regs cited above and i think he is exempt as well.

we now have a new problem however, which is that he owns property in the states-in whihc his wife and children who are US citizens are living. can this be counted as capital? and where do i check that out?

thanks

The property issue would surely be covered by the normal regulations. A property which the claimant no longer occupies as their dwelling is disregarded if a spouse is living in it. I see no reason why the fact the house is in America would make any difference to this rule.

I take your point. All I was saying is that he cannot benefit from EU rules because he has not worked in another EU state. I agree that he is not a returning resident under Swaddling.

The reference to 6 months was not a strict one, but the work in another EU state must be more than marginal and ancillary, so some period of time has to be spent there to ensure that he would be covered on his return to the UK.

sorry should have posted. i wrote a letter with his initial claim going through both issues--hab res/deportation and the home in the US. he has been paid from the date of claim

1. See the ECJ ruling ref Habitual residence in the News section

2. If it's any help, we had a gentleman who jumped ship as a 17 year old in Australia - lived there for fifty odd years basically as an illegal immigrant - wanted to come home to see family and die in this country so gave himself up to the Australian Authorities - they very helpfully deported him, paid for his fare back here, and made it abundantly clear that he wouldn't be welcome back in Australia.

After due consideration, he got I/S and HB after only a few weeks back in the UK.

Commissioner Jacobs has recently issued a new decision on habitual residence, which includes a suggested analysis for Decision Makers and Tribunals to adopt when considering the issue.

He also makes points on several old habitual residence chestnuts, including "viability" and "period of appreciable residence".

See the rightsnet briefcase summary of CIS/4474/2003, which includes a link to the actual decision.