I'm getting really confused and wonder if anyone knows....my client is a UK citizen, her husband is an A8 national. He is unable to work due to deafness, he has tried to claim benefits based on incapacity for work but has been refused on the usual basis, A8 no r2r,etc. She was claiming Income Support just for herself (she has recently had a baby) and has been told she must be available for work as the baby is now over 15 weeks old. She isn't classed as a single parent because of her husband. She has now claimed ESA and the claim is being processed. She has claimed for her husband but I'm expecting that part of the claim to be refused. My query is - if she is the claimant does the normal stuff about r2r apply? does she/he have to do anything to get him recognised as her spouse? I may be jumbling up old recollections of immigration law and work permits and goodness knows what else??? but it feels as though she should be able to claim for him but I can't think on what basis. Appreciate any help or just to clarify his position.
(Just as an added extra their marriage may not be considered legal in this country but haven't had the strength to follow that bit up yet...)

Ihe 2006 Immigration regs specifically excludes UK nationals from the EEA right to reside regs. I don't have the reference here with me, sorry. But this means that the spouse of an EEA UK national cannot benefit from the EEA 'family member of eligible person' rules.

Sorry, I can't answer the rest of your query but hope this helps a bit.

OK, this is a rather simple reply but these cases can vary in their circumstances. Ordinarily, a UK citizen will have a right to reside. There might be habitual residence issues if he is returning to the UK but that is another (although connected) matter. If he has a right to reside he has a right to claim IS/JSA/ESA if he satisfies the ordinary conditions of entitlement.

Only the claimant has to pass the right to reside test and not his partner. The marital status is irrelevant. The question is are they a couple. If so he claims for them both.

EEA nationals do not usually have public funds restrictions ouside the right to reside test so benefit should be paid at the couple rate.

I agree with Suzannem. The Immigration (European Economic Area) Regulations 2006 SI 2006/1003 at Reg 2(1) say that "EEA national" means a national of an EEA State other than the United Kingdom.

So, as CPAG handbook p1376 says, this couple would get paid single person rate of JSA only. But that is subject to overriding rights under EC Treaty and Directive 2004/38. Without knowing more about the EEA national, how long he’s been here, his incapacity, etc, it’s hard to see any rights here. Especially considering what is in the thread at http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=103&topic_id=5924&mesg_id=5929 from which I’ve copied this:

“McCarthy v S of S for the Home Dept <2008> ECWA Civ 641, Court of Appeal, confirmed that rights to reside are wider than those in the 2006 Regs, the Court also held that 'resided legally' in Art 16 means 'in compliance with the conditions laid down in this Directive'. The right to reside by virtue of being married to a Brit.Cit isn't provided by the Directive … CPAG also think that EEA nationals married to Brit.Cits are not covered by Directive in the way spouses of other EEA nationals who are residing in UK are covered.”

Robbie

In my post references to "he" should have been "she". Sorry for the confusion. So, that said, the 2006 regulations are not relevant. She as a British citizen should have a right to reside. To reiterate, the right to reside test ony applies to the claimant and not the partner.

And as an A8 national he should not be "a person from abroad" and so should not have a public funds restriction outside the right to reside test. So the couple rate should apply.

Thanks to nevip for replying. I checked the ref at CPAG handbook p1376 about when couples get paid single person rate of JSA only. EEA nationals do not fall within the definition of ‘person subject to immigration control’ in Immigration and Asylum Act 1999 s115 so I now agree with nevip that the couple rate should apply.

Mon 23-Nov-09 11:22 AM by nevip

Hi Robbie

The relevant pages in CPAG for this are pp1449-1450.

Regards
Paul

Thank you for all the replies. I feel more confident now for the inevitable argument with you know who...