RtR / Hab Res

Hello
I am hoping one (?or more) of you will be able to provide a link to the regs relating to victims of Domestic Violence (DV) claiming benefit as sole parent after leaving a violent partner.

My client is an Austrian citizen, she has never worked and was dependant on her husband who beat her. She left him after their child was born and went into refuge accomodation where she claimed child benefit etc and income support.

Her health deteriorated and her children were taken off her - they are now subject to a care order and live with foster carers. She has not been given any indication as to when they may be returned.

She was sectioned earlier this year and after discharge applied for ESA. She desperatly wants her kids back and is able to provide the love etc they need - her health is much better.

ESA was refused - regs used
Reg 70 (1) of 2008 ESA Regs and Reg 6 (1) of Immigration Regs 2006 (hab res and RTR) and whether she is a qualified person.

I have appealed - giving as much of her life storey / history about the children but I want to know where the regs / legislation is regarding DV / children in care etc so I can check everything possible for my client.

Any thoughts welcomed.

Yasmin

Sorry- before digging out any references would help to know:

1. Is your client still married (even is separated)?

2. What nationality her (ex) husband has?

Martin

Yes, still married but not in contact she thinks he is a ??security guard

He also has Austrian citizenship.

Thanks you for your response

Ok-

So your client has a right of residence as the family member of an Austrian worker.

1. A person remains a family member of a worker so long as they are still married. They do not have to live with them (Diatta v Land Berlin Case C-267/83).

2. Her difficulty is proving that he is a worker. Obviously she is not in a position to obtain this evidence due to the domestic violence.

3. However, if she provides as much detail as possible about his name, date of birth, NI number, last known address and place of work then the DWP should obtain the information- see Kerr v DSDNI [2004] UKHL 23 at paras 60 to 65. Basically where the DWP can establish the facts and the claimant cannot then the DWP must do all they can to establish those facts and if they fail to do this the client wins on burden of proof. Put this case and the information about his details to the DWP and tell them to sort it out.

here’s a link to kerr -

http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040506/kerr-1.htm

Thanks so much. Yasmin Green