I have a pregnant 23 year old who is half dutch and half british lived here since a baby but has a dutch passport. Dont think she has ever worked but was supported by family. She is now housed by the council and has housing benefit and council tax benefit.

She has now applied for IS and baby due 19/11/07 so she submitted medical certificates stating she could not work.

IS have come back stating that she does not have a right to reside as she is not habitually resident even though she has been here 22 years? She has provided her fathers passport and NI details too he works and mum now deceased.

My head is spinning looking at the regs as i dont know why they are saying this, there is no contact number for the team making the decision and just says contact your local office (yeah like they are going to know)

The regs they have used are 6(1) or (2) or (3) of the immigration (EEA) regulations 2006 and Reg 21AA(1) and (2) of the income support (general) regulations 2006.

Any help with interpretation would be grateful, my last Dutch client had no problems but she was claiming in a couple and her partner is british so claim in his name.

I would suggest working through the CPAG briefing on right to reside issues - this is available at:

www.cpag.org.uk/cro/Briefings/RightToReside0707.pdf

It is 52 pages long but very thorough.

It does look as thought your customer would have difficulties with this test. Under the old habitual residence test she clearly would have had no difficulties as she is settled here. Under the right to reside amendment added to this anyone who is not a jobseeker, worker, self employed person, self sufficient person, student, temporarily off sick worker or retired (or permanently incapable of work) person would seem to have difficulties.

It is difficult to see any sense to what this amendment sought to achieve as it bears absolutely no relation to having 'right to reside' in any common sense manner and would actually (as far as I can see) discriminate against a settled EEA national over a settled national from a non EEA country. So much for joined up thinking and not putting children into poverty. Your customer is being penalised for doing something useful like bringing up children and it is difficult to see how the removal of funds and support from a single parent who has lived here nearly all her life and her children is in keeping with any policy intention.

I would strongly suggest that she writes to her MP and would welcome any suggestions that anyone else could make about her situation. I hope you can achieve some sensible resolution to the pointless and draconian decision soon.

I need to add as an amendment that your customer might have an argument if she can establish that she has right of abode in the UK. The CPAG guide suggests that those with a permanent right of residence may be unaffected by the rules - see pages 11 to 13 of their guide. See also Regulation 15 of The Immigration (EEA) Regulations 2006 for more details.

She has been living here as the family member of an EEA national who is a worker for well over 5 years. Why doesn't she have a permanent right of residence under Article 16 of EC Directive 2004/38? Once you qualify that way you can only lose it by leaving the country for at least 2 years.
Also, once you have it you don't need to worry about whether you come under any other category. It's the forgotten right to reside (mainly by decision makers and submission writers).

ariadne2,

I am probably being daft but could you please clarify something for me as its not clear from the CPAG briefing re the 'permanent right of residence under Article 16 of EC Directive 2004/38':

Is this something people actually have to actively apply for, or is it a right of residence that we should expect DM's to look for based on the information in a benefits application?

Thanks in advance.

It just happens with, as the delightful legal phrase is, "the effluxion of time". Yes DMs ought to pick it up but you know what? They never ever do.

I don't suppose she's got dual nationality, having one British parent? If she has British nationality, then she the best sort of right to reside there is.

Thanks for the help.

Reading the case, I wonder why if the client is half British and half Ducth, her R2R can not be established be virtue of her being a British. We are not sure whether her deceased mother or her father is the British subject, because if her mother was the British National, then she is British. However, if her dad is the British parent, then her mother would have to have been married to the father for her to be British...
You may not need to consider this aspect as it seems daft that she has no R2R though she's been here throughout her life. However, if there is a chance that she can be British then she can bypass the R2R test.

Seem to remember a Dutch contact telling me a long time ago that Holland doesn't do dual nationality, and a person entitled to another nationality would have to give up Dutch nationality if they opted for the other one.

Don't think it prevents this person being British, but she might have to take active steps to give up Dutch nationality first. But this isn't my area and anyway it could have changed - but worth checking the current Dutch position on dual nationality?

I do recall being told that when my cousin was born in the Netherlands about 50 years ago, both parents being British, his birth had to be registered in some way with the British Embassy in the Hague so he could have British nationality. But then British nationality law has changed dramatically in the last 50 years so Dutch could have too.

Thanks for the info we are trying to go down the route that dad (who is dutch) (deceased mum was british) should give details of work etc so that she can have a right to reside this way. However dad a bit reluctant as self employed and he spends alot of time in Australia now and no-one seems to know what he does do. I am concerned if he doesnt do this or avoids doing this as buiness a bit shady then may have to look at giving up dutch nationality for british if possible.

your client may need specialist advice on her nationality (see CPAG's Migration & Social Security Handbook) as a number of factors may mean she is British. Britain allows duel nationality so from a British perspective she does not have to renounce her Dutch nationality in order to also be British - it is possible to be a national of several states at once!

If she is British the bigger problem may be getting DWP to accept this without some proof (which she does not actually require under UK nationality law!). We have frequent problems with DWP not accepting that a British national is British if they also have nationality of another state and chose to travel on a passport issued by that state.

Under UK law if you'r British you are British and you are not required to obtain or carry any evidence (yet) to prove it - but DWP staff don't seem able to understand this basic legal concept!

Had a case recently where she was English by birth and had her birth certificate, but because she enered the UK on a South African passport with a tourist visa they refused to pay JSA. They made her apply for a UK passport.