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Top Incapacity related benefits topic #4442

Subject: "Dutch National married to UK National refused ESA - no RTR?" First topic | Last topic
nickyswllc
                              

Benefts Caseworker, Kingston & Richmond Law Centre
Member since
24th Jun 2008

Dutch National married to UK National refused ESA - no RTR?
Wed 14-Oct-09 03:54 PM

Can anybody advise/direct me to the relevant regs please...

I have a Dutch National client who has lived in the UK since 1975. In 2001 she married a UK National, separated in 2004 but not divorced. From Oct 2005 to June 2009 she was a full-time student at university. Applied for JSA when she graduated but then claimed ESA due to period of ill health. ESA refused, DWP says no RTR.

As she's married to a UK National I can't argue that she's the family member of an EEA National - does it help at all that she's still married to a UK National?? Or should I just be looking at whether she has a permanent RTR in her own right based on work/student status from 2000 to date? Can I argue that between 2001 and 2004 she had a RTR as she was married to and living with a UK National?

Any advice much appreciated!

  

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Replies to this topic
RE: Dutch National married to UK National refused ESA - no RTR?, Casework team, 15th Oct 2009, #1
RE: Dutch National married to UK National refused ESA - no RTR?, nick nicolson, 15th Oct 2009, #2
      RE: Dutch National married to UK National refused ESA - no RTR?, ariadne2, 15th Oct 2009, #3

Casework team
                              

Legal Casework Officer, RNID London
Member since
17th Aug 2006

RE: Dutch National married to UK National refused ESA - no RTR?
Thu 15-Oct-09 10:36 AM

This area of law is a complex one and not my specific area of expertise, but it appears that EC laws have changed frequently over the years. so From the best of my knowledge, the benefits which are subjected to RTR are:

Income based and income related JSA and ESA, but that judging from your posting may not be the final answer. Because EEA Nats are also considered RTR if employed, therefore 'a worker'. Also if temporarily not working due to ill health, then a possible claim for IB/ESA, but must have been previously employed.

However i think the major factor in this case, is the fact that your client is a family member of an EEA Nat. As you say, "she is still Married".

Good luck

  

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nick nicolson
                              

homelessness officer, southampton city council
Member since
11th Mar 2008

RE: Dutch National married to UK National refused ESA - no RTR?
Thu 15-Oct-09 03:45 PM

Being an EU married to a UK her R2R is dependent upon him. In order to claim benefits in her own right as a single individual she must have a R2R in her own right as a single individual. Either by working or self employed.

She would only have an on going R2R as a family member of an EU national if her husband was an EU national.

UK citizens only become EU citizens if they have ever exercised a treaty right by working in an other EU country.

She can only get benefits if he ever worked in Europe.

  

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ariadne2
                              

Welfare lawyer and social policy collator, Basingstoke CAB
Member since
13th Mar 2007

RE: Dutch National married to UK National refused ESA - no RTR?
Thu 15-Oct-09 06:32 PM

She came in 1975, you say. How old was she then? What was her status - dependent child of a worker? Was she at school? More needed about the period before 2001.

  

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Top Incapacity related benefits topic #4442First topic | Last topic