HRT/Right to reside and ESA

I would be grateful for some advice on the following:

Client came to Britain from Lithuania prior to April 2004.  She was married to a UK national from 2003 until 2007 and they then divorced.  She claimed and was in receipt of JSA for two years until recently stopped as unfit for work. She applied for ESA but has failed a HRT which she wants help appealing.

My understanding is that unless she had a continuous entitlement to means tested benefits since prior to April 2004 until now which would give her transitional protection;  she would have to satisfy the worker registration scheme and then retain worker status after that in order to have a right to reside and claim benefits.  Is this correct? 

However I believe I read somewhere that as she was married to a British national she may retain a right to reside even thought they are divorced?

Hi

If she came to the UK prior to april 2004 she would have come on a visa.  This may give her exemption from the registation requirement if it meets the criteria set out in the Accession regs.  If is doesn’t then you would need to show 12 months registered work i suspect.

She has been getting JSA. why has this been paid.  Has she in fact completed the 12 months registered work, or is she exempt or have JC+ got it wrong?

I note she has been here for over 5 years therefore if you can show 5 years ‘lawful’ residence the she would have permant residence.

If she does not have the Permant residence but was retaining her status as a ‘worker’ under the regultaion/directive then I cannot see why she has been turned done for ESA as you are allowed to retain your status for temporary (and also permanat) periods of incapacity for work.

Hope this helps

CHC - 14 December 2010 05:22 PM

However I believe I read somewhere that as she was married to a British national she may retain a right to reside even thought they are divorced?

I agree with Matthew and would just add, in order for her to have a right to reside she would have needed to pursue a right to reside in her own right, by applying to UKBA for a right of residency/abode based on the marraige.

But I suspect, very much, that the DWP have got this wrong and she has a right to reside in some way, but I can’t tell from the details in your post if that’s the case. She *may* have a permanent right of residency and/or is exempt from having to complete 12 months registered work.