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HRT Polish national , in UK since 2005

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Diogenes
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Oh——Maybe the UT will be appealed, however I still wonder if its not abit contradictory as I would have to argue client is not Hab res which kind of shoots my case n the foot for the old benefits. cant argue she is for UC but not for the others !!!! I wonder if this circle can be squared .I wonder if HB would go for it anyway ?!?!?!

Elliot Kent
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I think it is (was) perfectly possible to consistently argue that (a) I do in fact have a right to reside but (b) Notwithstanding that, the DWP have concluded that I do not and the issuing of the stop notice was therefore wrong.

However, it is moot unless you propose to get the issue back up to UT/CoA. I am not sure that “hope that the HB department are unaware of an adverse authority and we pull the wool over their eyes” is really a proper basis on which to proceed.

I do have concerns about the SK decision and think that it might be susceptible to further appeal. I am not sure that Judge Jacobs is right that the DWP is entitled to make its ‘determination’ in issuing a stop notice by reference to s4(1)(c) WRA simplex as though it were freestanding and without reference to reg 9 UC Regs. The case referred to by Dan in this thread (https://www.rightsnet.org.uk/forums/viewthread/18307/) provides something of a counter-point to SK because whereas the rules relating to being in the UK are clarified by regulations which exclude some people who appear to meet s4(1)(c), the opposite is true of people over retirement age - some of whom are entitled to claim despite not appearing to meet s4(1)(b). I am not sure how the logic of SK can be coherently applied across each of the basic conditions without simply making a ‘special case’ of s4(1)(c) for reasons of simplicity rather than principle. But it is the law of the land.

It is clearly going to be quicker and easier to have the UC decision overturned (and/or assisting your client access appropriate immigration advice re EUSS) than it would be to push this side issue.

[ Edited: 23 May 2022 at 06:25 pm by Elliot Kent ]
HB Anorak
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But there is the case Charles uploaded in this thread: https://www.rightsnet.org.uk/forums/viewthread/17914/ where Judge Poynter takes a different view about satisfying the basic conditions.  Don’t think it’s on the UT website and for a client who has no money right now it’s going to be more straightforward to dispute the refusal of UC.  But for someone who has the time and is not depending on the outcome for their current award it would be interesting to see what would come out of a comparison of the Jacobs and Poynter decisions - perhaps a panel of UT judges would be convened for an appeal like that.

Diogenes
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Thanks   Elliot and HB A, Yes I am hoping to challenge the UC, client has an application in for settled status , its nearly a year so something has gone wrong there too I suspect as they keep telling her it still being processed.
It is a temptation to let my LA HB unit educate itself as to the law, but i shall resist. 
My main worry is that I have a client who has live din the UK since 2005 and has only worked for about 6 months in that period and who has no family in UK apart from her child who is not a UK citizen ,and my client appears to have lived on DLA and Carer’s Allowance for the past 17 years, the child’s father having left the scene in 2006.

Fitting her into any of the boxes for qualifying looks very difficult, It would have been nice if the JCP had done an MR for her back in February when the first UC refusal was done,  rather than only this week when I took her to them myself to find out what had been going on

Diogenes
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The plot thickens, I was told by DWP JCP office last week that my client’s EUSS claim was still in the application stage from last June, I called the EUSS team today with my client present and was told her claim was refused in Nov 2021 due to her not providing evidence of residence in the UK for 5 years. My client tells me that she has been relying on “the polish bureau” in Birmingham and sending them a fee every month to check her EUSS claim, they have also been telling her for the past 6 months she just has to wait, they did not apparently send in the evidence of her residence which she thought they had sent to the EUSS, so a real mess and new late application now has to be made. Question, should my client make a new UC claim now, her last was refused in April on the HRT grounds

Elliot Kent
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I don’t see why her application to EUSS was refused altogether due to a failure to provide 5 years of evidence. They still need to look at pre-settled status.

At any rate, if it is the case that she neither has pre-settled status or an application to the EUSS, she will be unable to rely on any of the retained EU rights. There would be little point in making a new claim for UC.

It sounds like she rather urgently needs appropriate immigration advice in respect of re-applying to the EUSS with proper evidence.

Once she has made a valid application, she might be able to re-apply for UC. That then puts us back in the position we were in at the start of the thread - trying to find an EU law basis for her presence. As I have suggested above, there seem to be arguments that she does have one through either (1) derivative rights (pinned to her six months of work) or (2) permanent residence through over 5 years of self-sufficiency.

She may also want to:
1) Look at reporting these individuals who have been taking her money to chase a non-existent application to the OISC
2) Seeking assistance from the council children’s services department

Paul_Treloar_AgeUK
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At the last Home Office meeting on settled status applications, we were told that people are now being given 7 days to supply evidence and if this deadline is missed, the application is closed with no further action. So if that’s what has happened here, i.e. the agency alleged to have been acting on her behalf for cash have simply failed to do anything, then it could be the case that this is why they haven’t looked at pre-settled status either.

So yes, it’s that side of things that needs urgent attention.

Mr Jim
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Surely the evidence is there that she has been in the UK for at least the last 17 years if she has been surviving on DLA and CA? Home Office should check i.e. if a claim for EUSS was ever made. They can check benefits records.

Jim

Diogenes
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Thanks all, a new EUSS application is being made today, she has been advised to complain against the “polish bureau” and Jim I did wonder why the home office has not simply checked her NINO and seen that she has been claiming carers allowance for many years, I am asking colleagues who are doing the SS claim to chase up the SS team to see if they should have checked her benefit records She should be bringing in every scrap of paper she has kept over the past 17 years today for us to glean evidence of residence from

[ Edited: 26 May 2022 at 10:07 am by Diogenes ]