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ESA and Habitual Residence
My client is Polish. She came to the UK 06/11/2005. She has been working/claiming JSA since then. Her JSA claim stopped in February - not sure why. She may have failed to keep jobseeking conditions. She claimed ESA and was refused as she failed the habitual residence test. She appealled the decision on the grounds, she should be habitually resident as she has been in the UK for 7 years. She has been refused because although she has lived in the UK for over 5 years she did not register with the Workers Registration Scheme and then in the 4 years following this she was not in continuous work. I cannot find merits in the appeal and have advised her to reclaim JSA. Also her 15 year old daughter joined her this month. My client’s only source of income is CB. I don’t understand why she is receiving this and whether she can claim CTC in her current predicament.
All else aside, if 15 year old daughter is with her and in education client should have route to ESA via the daughter (child in ‘primary education’) as long as client has legally worked in the UK at some point (sounds like she has- even when she was subject to WRS she would not have had to register her jobs for the 1st month) so she may have grounds to appeal on that basis. I agree- in the short term/in tandem with appeal claim JSA (and CTC- she should have current RTR as a jobseeker).
The decision under appeal is 06/06/2012. Her daughter did not join her until 15/09/12, so I’m not sure how this will help with the appeal. Do you mean she could make a fresh claim for ESA, rather than claim JSA? I’m sorry. I really am as confused as I sound!
All else aside, if 15 year old daughter is with her and in education client should have route to ESA via the daughter (child in ‘primary education’) as long as client has legally worked in the UK at some point (sounds like she has- even when she was subject to WRS she would not have had to register her jobs for the 1st month) so she may have grounds to appeal on that basis. I agree- in the short term/in tandem with appeal claim JSA (and CTC- she should have current RTR as a jobseeker).
I understood that the child must be in the UK while the parent was a worker, for the primary carer to qualify under this provision (Teixeira/ Ibrahim). Therefore I don’t think this can run.
Also as she did not register the initial work, the subsequent work did not count as “lawful residence” in order to qualify under permanent residence.
But please correct me if I’ve got this wrong.
She will need to claim JSA to pass the right to reside test as a jobseeker, but I’m not immediately aware of any arguments re the appeal.
I’ve now found out that she did register with WRS. Her card was issued 27/04/06, but she doesn’t seem to have any Workers Registration certificates. This will not make any difference to the decision or am I missing something?
Has the daughter been in the UK all along or has she only just arrived? I think I misunderstood the first post. If daughter has only just arrived in UK I agree with Domino- I don’t think that argument can run. Presumably, client was therefore receiving CB via the coordination rules?
If client registered any of the jobs under WRS the Borders Agency should have a record of it.
It’s looking more and more like JSA is the only way forward though.
The CB is also a nightmare. The child was in Poland with her father and client said she came to UK 15/09/12. However, I have a copy of her bank statement for August and September, which shows CB was paid for both months. Client was unable to clarify this. She has also left me a CB overpayment notification dated 23/03/12 - £444.80. Periods of overpayment - 10/09/07 - 04/11/07, 16/03/09 - 29/03/09, 18/05/09 - 12/07/09, 05/10/09 to 18/10/09, 23/10/09 - 28/03/10 and 15/08/11 - 13/11/1. Reason given is that she was no longer an employed person, so the child cannot be treated as residing in the UK.