My client returned to the UK from Spain where she has lived for the last nine years. She was employed for the first three years then gave up work due to childcare responsbilities. The relationship broke down and client returned in August.

She has made three claims for JSA. The last has yet to be decided, but the first two were refused on HRT grounds.

I minded to submit appeals, arguing that client is exempt from HRT on the ground that she is a workseeker. I don't think her UK nationality will bar her from this because she is returning to the UK after having exercised her treaty rights in another EU country. As far as I can tell, she is not, and does not retain the status of, a 'worker', but she can rely on being a workseeker.

Is anyone able to confirm this? Ta muchly,

There are two branches to the HRT. The one we tend to discuss ad nauseam is the rider that was added in 2004, to the effect that no-one is to be treated as habitually resident unless he has a right to reside in the UK. This is what causes all the problems for EU nationals coming to the UK.
Your client doesn't have this problem. She is a British citizen and thus has an unfetterable right to reside in the UK. Whatever she does, she can't be deported and is not ever going to be subject to immigration control.
What she has, as a newly arrived British citizen, is the problem that she has not been living in the UK for what the Dept regards as long enough. You are in Swaddling territory here, but with the difference that she has not been a worker for several years. Quite honestly I'd have thought that even if she had intended to live abroad permanently she would have picked up the threads of her former life by now.
As a work seeker she needs to be actually habitually resident in the UK before she can claim benefits even though she has the right to reside. The deeming provision that a person from the EU has the right to reside and is habitually resident as a worker, and has the right to reside as a work seeker, does not give deemed habitual residence as well to work seekers who still have to satisfy the "reasonable time" provisions.

and after that, it's client's intention. i had a man once who'd been in africa for many years and came back when work dried up. local office accepted he was habitually resident very quickly (other problems caused him to consult me).

Thanks both.

It's difficult for my client to show she's taking up previous HR because she sold her house when she moved (she was single then with no children) and has returned to a different part of the country. In fact, since her return in August she's lived in three different areas. Mostly becuase she and her son are homeless and have no income so they are reliant on charitable friends and circumstances have not been kind.

She has been seriously misadvised by the JC in relation to benefits and tax credits and is now in a very fragile state as a result. I was hoping for an argument to bypass HRT but it looks like that won't happen.

I'm hopeful for a new claim from December as she will have been in the UK for four months by then - longer than the generally accepted 'appreciable period of time', but it looks like appeals on the previous decisions could be worthless.

Thanks again for your contributions.

Wed 10-Feb-10 09:45 AM by ros.white

Hi.

I think it might be worth putting in appeals against the first two decisions, even if you can't say that the client was exempt from the habitual residence test.

In Nessa the House of Lords said that whether someone is habitually resident is a question of fact in each case. The stronger the client's intention to settle in the UK, the shorter the period of residence need be. They also approved another judgment which said that a month could be a sufficient period of residence.

If you have good evidence that your client took strong steps to establish herself as soon as she got here the tribunal might well accept a month's residence. I would say it's worth a go - there's nothing to lose and if you win could be very helpful for other benefits.

Your right, Ros. Thanks. I was being deafeatist.

"but it looks like appeals on the previous decisions could be worthless."

i'd appeal the previous decisions anyway. she clearly had the relevant intention and the fact that she had no fixed abode (due to no income) is not to the point. although the fact of no income will be to the point in showing why no fixed abode.

CJSA/438/2009 will, I imagine, be of assistance. It's in the toolkit.

Thanks Dan.