Non EEA national with Pre-Settled Status

Another case of a non EEA national with PSS. This client (aged 21) acquired her PSS in early 2020 as the spouse of a French national. They have since separated but are still legally married.

Client now lives on her own in private rented property and works full time. Her husband may or may not be currently working - she doesn’t have good enough contact with him to find out. He has lived in the UK for long enough to have acquired a permanent right to reside, but client has no way of proving that he does have such a right.

Client has now become seriously unwell and will be unfit for work for some months while she goes through chemotherapy.  She is getting SSP, and is in the course of applying for PIP - although she may not be ill for long enough to qualify, and in any event a PIP decision won’t be made for months.

Client’s UC application has been turned down on the grounds that she failed the HRT. The decision has been notified to her via a brief note on her journal, with a statement to the effect that her case worker will contact her next month with an explanation. It’s pretty clear from the speed of the decision that no investigation has been made into whether the client’s husband has a qualifying right to reside, even though the client did provide his NINO.

Would be very grateful for thoughts about the best way to proceed from a practical point of view.

Her two main arguments seem to be:

(a) The SSWP should consider, and if necessary disclose, the husband’s NI records with a view to establishing whether he is a qualified person or permanent resident from whom she can draw a status as under the investigative duty from Kerr. It would also be worth considering the extent to which she can prove her husband’s status. She should be able to give an account of his work insofar as the period they were together. Her immigration applications are likely to provide further evidence and she should be able to obtain these from the Home Office - they would have wanted evidence of his work for that purpose.

(b) alternatively, going down the CG rabbit hole with a view to establishing that the refusal of UC amounts to interference with her fundamental rights. The fact that she is ill and cannot work is helpful in this regard. The receipt of SSP (and probably nsESA and PIP in due course) and the likely limited duration of the illness less so.

There is not much I can suggest practically. It is probably not worth waiting a month(!) for the case manager’s ‘explanation’ of the decision before pressing ahead to MR.