Permanent right to reside

Looking for some views please.

I’m looking into whether one of the people I’m working with has an argument for a permanent right to reside.  She is an EEA national who has worked in the UK since 2009.  She had a child in 2012 and gave up work earlier in 2015 to look after the child who was sick, in the belief that she would be able to receive Income Support on the ground that the child was under 5.

Usually this wouldn’t be a problem apart from the fact that her belief comes from a previous period when she received Income Support after she left her child’s father.  It looks like she got this because she was a worker at that time as well.  She only earned about £1500 for that tax year which is my concern, although writing this I’m starting to convince myself that she was either a worker for that period or she wasn’t - and it seems that she was.  I wouldn’t have any worries if it had been the previous tax year because that would have tied in with a period of maternity leave, but in that tax year she earned nearly £7000.

Does anyone more knowledgeable in these matters think that her low level of earnings for that tax year will throw up any issues?

Mairi

I’m no expert where RTR is concerned but I can’t see why it should do. In EU law (Genk is the case that always springs to mind) it’s been established that even work of only a few hours per week can count as ‘genuine & effective’.

Thanks for the quick reply.

She may not meet the minimum earnings threshold, but she should have the normal test applied under the tier 2 assessment. Earnings are only one of the factors under consideration when establishing whether work was “genuine and effective”. Are you worried Jobcentre Plus will change its mind about her being a worker at the time she was in receipt of Income Support?

There are some factors that will likely have more sway than others: duration, hours, regularity and earnings. These aren’t exhaustive and the DM/Tribunal will have to consider all the facts to decide what is true.

I’d look at C-53/81 Levin [1982] ECR 1035 and C-413/01 Ninni-Orasche [2003] ECR 1-0000 (13 hours per week for 5 weeks, £35pw earnings) for the detail on this.

the fact that she was awarded IS should be proof enough that she had RTR

they may dispute that she has permanent RTR but as I keep telling everyone, providing you have loads of paperwork, payslips et al documenting 5 years you’ll be OK

shame though when it goes to tribunal, when really a quick positive outcome is what’s needed

we won a case on the back of national insurance contributions,—that’s also a useful document to get hold of

Thanks again all.  Will be re-visiting this when we receive the submission from DWP.  A nice idea about the NI contributions but my concern is that she didn’t earn enough in that tax year to be liable to pay these or income tax.  Earnings were about £1500 for the tax year, bolstered by Income Support.

Mairi

Just an update.

As it turned out, the level of earnings issue was never brought up by DWP and the claimant has now been advised she has a permanent right to reside.

Mairi