WHEREABOUTS OF HUSBAND - REFUSAL OF I/S

Hi can anyone help me?

Client who is Ghanaian, she has two children, 4 & 11 years and another due 27/10/2010.  Client is receiving CTC, CHB, and HB & CTB.

Client married to Italian national in 1996 they lived in Italy for 10 years and then moved to the UK on 12/03/2008.  All children are his.  Client informs me that he has always worked. She has never worked.

The problem is the husband recently began to disappear for 3 months at a time.  Client last see her husband in January 2010 and she has had no communication with him and does not know his whereabouts to date.  Client’s passport is stamped “family member of an EEA national”

Client made a claim for IS in June 2010, however has been refused.  Decision being she does not have the right to reside. They have seen her documents confirming she is a family member of an EEA national. 

However, the decision states that because she does not know his whereabouts, cannot prove his nationality and cannot prove he is working in the UK she does not have the right to reside!?

Can the DWP make this decision simply because the client does not know the above information regarding her husband?

1. It is for the DWP to find his whereabouts or to do everything they can to do so. They cannot defeat her claim simply on basis that she can’t provide the information in a situation where they might be able to find out. See Kerr v Department for Social Development Northern Ireland [2004] UKHL 23 - Baroness Hale at paras 60 to 65.

2. So if client gives them as many details of her husband as possible then they should try and trace him to see if he might be a qualified person.

3. In any event I assume that client has a residence card and this is valid for a 5 year period. It is suggested in para 16 of CIS/2054/2008 (neutral citation- EM & KN v SSWP [2009] UKUT 44 (AAC) ) that such a permit is valid unless Home Office revoke it or it expires and suffices as proof of residence. This is said to be dependent on whether CIS/185/2008 is correctly decided (which the ECJ will consider in Dias.

Hi Martin,

Client does have a residence card which shows she is a family member of an EEA national and the DWP have seen this. 

I assumed that her residence card would be enough as evidence of her right to reside.  I will challenge the decision on both grounds and see what they come back with.

Thank you for your input, you’re always such a fountain of knowledge!! :o)

The residence card should be proof of his nationality at least even if they do not accept it as proof of her right of residence (pending Dias).

You mentioned that there are two kids, is the 11 year old in school? If so, if your client can get some kind of evidence that her spouse has worked at some point in the UK (old pay slips in the house or a letter from an employer etc, or even if the DWP themselves can establish he has worked in the past through NI contributions record) you may have an Ibrahim/Teixeira argument?

Lee42 - 17 September 2010 08:13 AM

The residence card should be proof of his nationality at least even if they do not accept it as proof of her right of residence (pending Dias).

You mentioned that there are two kids, is the 11 year old in school? If so, if your client can get some kind of evidence that her spouse has worked at some point in the UK (old pay slips in the house or a letter from an employer etc, or even if the DWP themselves can establish he has worked in the past through NI contributions record) you may have an Ibrahim/Teixeira argument?

Thanks Lee,

That was my thoughts too.  I will wait for a response to our appeal and then go from there.

Nikki