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Right To Reside And Habitual Residence Test For EU National
I have got a client who is a Portuguese national. She has never worked in the UK. She has been living here since 2010. First She applied for JSA. The claimed was refused and due to old age she was told to apply for Pension Credit. She did but was refused as she never worked in the UK. So what next for this poor old lady? I need help on this matter colleagues. Thank you
Two very important questions:
- how has she supported herself since 2010?
- does she have any family in the UK? If so what relationship, what is their nationality and economic circumstances?
Thank you for the two important questions.
1 The client has been supporting herself through friends and family.
2 She has got a Son and daughter in law here in the UK. However, she left their Home in March 2012 as she was not getting on with daughter in law. The Son and daughter in law are on benefits. Currently, the client is living with a friend.
Thank you
Hi,
Just a few more questions!
When was she on JSA?
When did PC refuse her application?
Are the son and daughter in law EU nationals ( I presume the son is )?
What benefit is the son on? Has he ever worked in the UK?
Is your client entitled to or receiving any pension/ benefit from Portugal?
Hi PCLC,
Thank you for your questions. here are the answers;
1 The client has never been on JSA when she applied she was referred to PC
2July 2012 that is when she was refused PC
3Yes the Son and Daughter in Law are EU nationals
4 The Son is on JSA but they no longer live together. She now lives with friends
5 She is not getting PC from Portugal no.
Is she getting any benefit from Portugal E.G. occupational pension, equivalent of our state pension?
Also did son or daughter-in-law work in UK before getting JSA? If so when and for how long?
Sorry, that’s the last of the questions I think!
I think this is a no hoper I am afraid. Her only right to reside would be as a self sufficient person, but the fact is she was dependent on her son and daughter-in-law rather than truly self sufficient. Also she would need comprehensive sickness insurance, see CPAG P. 1602.
Also she is out of time to appeal the refusal in July 2012 so she would have to claim again. And now there is an issue over whether she is dependent on her son/ daughter-in-law, not so much due to the fact that she has had to leave, but it would be difficult to argue that they contribute to the basic necessities of life for her if they are on benefits them selves. Also they were providing accommodation, which could be a big factor for dependency, but this is no longer the case
The main UT decision on dependency is here;
http://www.rightsnet.org.uk/briefcase/summary/Right-to-reside-whether-claimant-dependent-on-son-
Plus you have the problem that son is no longer working - it could be that he retains his worker status through previous work in UK so not necessarily a deal breaker but just an added complication.
If client is able to work I would suggest she does so, even for a few hours pw to achieve worker status (though work must not be marginal and ancillary) - EU does not lay down a minimum number of hours pw to achieve worker status.
See here for further info on achieving worker status (done in 2009 so may need updating);
http://www.gardencourtchambers.co.uk/imageUpload/File/Worker Status.pdf
So if she can achieve worker status her right to PC to top up her earnings will be clear cut.
Dear PCLC,
Many thanks for your help. It has really been useful for now and the future clients. Many thanks also for the links with caselaws.
If client is able to work I would suggest she does so, even for a few hours pw to achieve worker status (though work must not be marginal and ancillary) - EU does not lay down a minimum number of hours pw to achieve worker status.
See here for further info on achieving worker status (done in 2009 so may need updating);
http://www.gardencourtchambers.co.uk/imageUpload/File/Worker Status.pdf
So if she can achieve worker status her right to PC to top up her earnings will be clear cut.
Alternatively/better still, if she is capable of a few hours work p/w then why not set up as self-employed? Dog-walking, domestic cleaning, light household chores etc…..register with HMRC (not required, but convincing evidence with the Pensions Service), advertise with local newsagents (card in the window) and on Gumtree - a person counts as self-employed whilst setting up in self-employment (i.e. before generating any income or turning a profit) and so would have a right of residence for PC purposes….