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HB and the right to reside
Hi, I’m hoping someone will be able to assist with this one.
My client is Polish.
Timeline:
1995: He came over to the UK and started self employed work.
2003: He has granted indefinite leave to remain by the Home office.
2005: He stopped working as his business became bankrupt. He became ill with alcoholism, depression and became homeless.
2005 or 2006: He claimed JSA and maybe HB (he doesn’t have a clear timeline on his benefits history).
2011: He eventually went onto ESA at about this time. He was placed in the support group.
2017: Failed LCW assessment so lost ESA. He states he rang them and asked to appeal but they ignore this and told him to apply for JSA. He applied for JSA. HB were notified that ESA had stopped so asked him to confirm his income. He advised them that he was on JSA. They ended his claim on the grounds that his only right to reside is as a job seeker. He has appealed this. However he is in rent arrears and his HA landlord has commenced possession proceedings. They are aware of his difficulties with HB.
I’m completely thrown by the 2003 indefinite leave to remain document. Does this mean he is entitled to benefits without the habitual residence test? He doesn’t come under the transitional protection because his benefit claims started after 2004. I think he would have a permanent right to reside but want to make sure I’m arguing the correct area of law.
I’m also supporting him with a late MR on the decision in Feb to end his ESA.
Thanks.
ILR usually trumps any need to establish a right to reside for benefit entitlement. You may need to check the grounds on which it was given as it can be related to sponsorship agreement but even that expires after 5 years, so unless it’s been subsequently revoked, then I think that should be sufficient.
Thanks, I’ll give that a try and see what HB say.
To satisfy benefit conditions, your client will need to show.
Has a legal right to live in the UK and claim benefits. (the so called right to reside)
Has an intention to settle in the UK, Isle of Man, Channel Islands or Ireland and make it his home for the time being. ( habitual residence)
My understanding is that as your client has indefinite leave to remain, he passes the first test (ie the legal right to reside). He will still be subject to the habitual residence test, but if he hasn’t left the country during the last two years presumably would be OK.
they have been thrown by the fact that he is Polish would be my guess and have applied EU regulations/law to him.
But he came before Poland joined the EU and so was originally “a person subject to immigration control”. So when he got settled status he didn’t get permanent residence he got ILR.
so, as was said above if he hasn’t lost his ILR by leaving the country for two years, and he retains habitual residence then he is fine
Thanks all. I’ve written to the council so fingers crossed!