My client returned to UK from Cyprus on 04/10/07. He has been living in Cyprus from 2000 - 2007. Prior to this he had been living in the Uk for a period of 27 years.

He has recently claimed IS + JSA(IB), it was turned down by decision maker as felt he was not habitually resdent in the UK. he is continually signing on for credit purposes.

Prior to going abroad he was in supported employment through Rathbone, an organisation still works towards helping anyone whose needs have not been met by education, or who needs support to overcome their barriers to learning, training or employment.

He has a mild learning disability.

I have suggested an appeal to JSA (IB) on the grounds that he is habitually resident as he has intention to stay and his previous years of residence here. Any other suggestion?

Hi.

You say he claimed IS and JSA but then that he is appealing JSA decision. I think that, as an EU national, he should be pursuing the JSA claim if he is able to work. If he claims IS he will probably fall foul of the "right to reside" rules. As a workseeker claiming JSA he will be automatically considered to have a "right to reside".

As to the habitual residence , I think it's worth arguing that he is a returning resident but you might have trouble with the argument because of the length of time he's been out of the country. It depends on the facts. It would be stronger if he's always thought that his stay in Cyprus was temporary, if he intends to stay here permanantly and if he has retained links with the UK whilst away. CIS/1304/97 sets this all out.

I think you should also argue that he had been here for "an appreciable period of time" when he made the claim, or at least by the time the decision was made. There's no set period but usually one to three months is enough, depending on the strength of his "settled intention". It can be less than a month in some circumstances. R(IS)7/06 is good authority on the whole "appreciable period" thing.

Thanks!

Your reply is very informative and useful. I'm hoping to use this information towards the appeal.

As an EU national the only part of the hab res rules he has to fulfil is the right to reside, so as long as he gets himself into a category of "qualified person" - worker or jobseeker - he will automatically satisfy that rule.

If he really has a mild learning disability, then ensure he is in contact with the DEA at the Jobcentre. He should be able to work in an appropriate sort of job.

Hi Ariadne. Sorry but I don't agree about everyone with right to reside having hab res. For JSA comes under reg 85A and you are only exempt from hab res if you come under one of the categories in para (4). He would be OK if he was a worker, because he'd come under (4)(a), but not as a workseeker. He may come under one of the other exemptions if he's a family member of a worker or something.

Cheers

Ros.