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Jobseeker status preventing a derivative right to reside

Ruth Knox
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Has anyone come across this situation?  Our clients are Polish, married couple with children, have been in the UK for several years, but on current patchy record no permanent R2R.  A year ago, the husband claimed and was awarded JSA on the basis of “primary carer” of a worker’s child in education, so no GPOW, and entitled to Housing Benefit.  He found work then lost it.  His partner has now claimed and is being paid JSA for the couple, but no right to Housing Benefit.  She has a R2R as a jobseeker, and is therefore an “exempt person”. So she can’t derive a right as a primary carer nor can he as he shares equally the responsibility for the child with someone who is an exempt person.  (Reg 15A (7) of Immigration Regs.  The result is that they are receiving JSA and Child tax credits, but no Housing Benefit, and face eviction.

So there are the following possibilities:  (a) She waits until her GPOW, which she will likely fail.  She then reclaims JSA and HB on the basis of her derivative rights. and is not subject to GPOW because she is not a jobseeker

(b) She ends her JSA and either one of them claims JSA and HB on the basis of their derivative rights (but surely the one who does it becomes a jobseeker as soon as they meet the criteria for claiming JSA?)

(c) She gives up her JSA and her husband, who has a medical condition, claims ESA on the basis of derivative rights.

There may be other options (for instance we might argue her husband’s right to ESA or JSA on the basis of retained worker’s status, ifthe gap between his last work and his claim is not too long) but this may well involve an argument with DWP and the Local Authority and an appeal.

Have I interpreted the rules correctly and what do people think is the best and simplest approach?

Elliot Kent
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Well for starters, appeal the HB refusal. The DWP line is that the claimant must exhaust all non-derivative rights to reside in order to rely on derivative rights but they are yet to provide any vaguely convincing argument for why that view would be correct in EU law. The LA is obliged to reach its own decision on the claimant’s RTR (see EP v SSWP [2016] UKUT 445 (AAC) so you can raise your retained worker points and the correctness of your client’s exclusion from a derivative right in that context without needing to involve the DWP. Depending on the facts, it might even be possible to argue that the wife is not actually a jobseeker at all - for example if she has already used up her 91 days or if she has poor work prospects - but there are certain risks in that approach.

In practical terms, the quickest way to get HB in payment might well be for the husband to claim ESA if you think that is viable. Your clients would need to bear in mind that its possible that ESA would take a different view on RTR which would leave them in a worse situation than they are in now and its also possible that they might get get chucked off ESA down the line on LCW.

Ruth Knox
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Thanks Elliot, that is useful.  We’ll look at both those options. It looks as if his illness might be quite serious, and if we could get a backdated sickness note then that might mean there isn’t a long gap since his last work - it’s a colleague’s case so I’ll have to check those details.  Ruth

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I’ve come across this issue in one of my cases. 

DWP seem to have decided that, because my client has supposedly not exhausted their potential (!) rights to reside (by exhausting entitlement to JSA), they cannot go on to decide that she has a derivative right to reside as the primary carer of a child of a European worker.  They have stuck by this throughout the original decision and MR but I’m also surprised to see this asserted in DWP’s submission for the appeal (see attached).

I’m so surprised they are sticking by this I thought I’d put this on here to check whether anyone thinks I might have overlooked or misunderstood something here?

If I’m reading this right then it seems like DWP would appear to be misreading regulation 16 (1) (a) of the Immigration (EEA) Regulations 2016 which state that a person has a derivative right to reside during any period in which they are not an ‘exempt person’ (i.e. has an alternative right to reside or is covered by the other provisions of regulation 16 (7)). 

Or more likely, they are misreading their guidance.  Guidance can be found at 073383 and 073387 here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/690047/dmgch0703.pdf

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Elliot Kent
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Oh dear Owen, that’s not quite right is it…

Daphne
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Have sent this one up via stakeholders…

Ruth Knox
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In our case the situation was resolved quite quickly as they considered his wife had status as a jobseeker and also had derivative rights. Being pragmatic we didn’t then explore further but it seems as if the DWP are not acting inn a consistent way on this issue.  Ruth

Chris Hollinrake
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I currently have a MR Notice for ESA in front of me with the very same issue, it seems to be policy.

Polish married couple, the claimant’s wife has poor health and he, whilst a little better than he was, is still not fit for work.

DWP initially argued that neither can be a primary carer as they provide joint care, I have thankfully got them to concede that at MR stage, but still the decision is unfavourable.

They are now relying on the following (edited for brevity):

‘It is confirmed that you do not have any other right to reside but your wife may have entitlement and may wish to claim JSA for 91 days as a Jobseeker…she cannot have a derivative right to reside under Regulation 16 until she exhausts her right to reside as a Jobseeker…Your child would still be able to continue their education because the other carer would still be present in the UK’.

I found the following submission excerpt in another thread from user Dan Manville (I hope if you are reading Dan that you don’t mind):

“requiring the appellant to have exhausted all potential rights to reside before being able to utilise a derived right pursuant to regulation 15A of the Immigration (European Economic Area) regulations 2004 is erroneous. Regulation 15A(6)(c) of those regulations makes a person an “exempt person” where they already have a right to reside but does not contemplate the potential to acquire such a status.”

I’m about to appeal this. I guess I will have to cross my fingers that a DM may see sense, otherwise I will need to let a tribunal decide. Any other suggestions welcome!

Elliot Kent
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Chris - I don’t think it is necessarily helpful to put too much stock in what is written in the MR notice. The EU appeals team tend to take a fresh look at the case and it is not unusual for this sort of nonsense to be summarily abandoned on appeal without explanation. I would probably stick to just explaining why your client has a right to reside as clearly as you can in the SSCS1 rather than getting into arguments which the Tribunal is probably not even going to need to decide.

On the MRN though, the DWP view is that the effect of Regs 6 and 16 of the Immigration (EEA) Regulations 2016 is that an individual who is a “jobseeker” is an “exempt person” who cannot rely on derivative rights (despite being excluded from most benefits). Whether that view is correct in terms of EU law remains to be seen.

But even on those terms, it simply isn’t correct to say - oh well you could render yourself a jobseeker, so that’s good enough for us. You could start a job, or start a degree or apply to the Home Office for British nationality. So what? The legislation does not on any view say that someone who could obtain an alternative right to reside is an “exempt person”.

Another point which is potentially significant is the date of the decision. With effect from 24 July, the I(EEA) Regulations were amended so that it is no longer necessary to consider whether the non-claimant carer is an “exempt person” or not.
http://www.legislation.gov.uk/uksi/2018/801/made

If the decision was made on or after that date then even if the DWP are right about the “exempt person” argument and even if it is somehow possible to have regard to a “possible” rather than actual alternative right to reside - then the decision is still wrong because the fact that the wife is an exempt person is of no relevance to anything.

Chris Hollinrake
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Thanks for this Elliot.

In this case it took a complaint and 100 days to get a response to the MR request, as such I do want to address the points as fully as possible to lead the DM.

Regards decision date, the original decision date pre-dates the date you have mentioned, but the MR decision post- dates it. I imagine it’s the original claim decision that is relevant…but I may chuck this in anyway.

I’ll try to remember to update when I know any results.

Elliot Kent
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Chris Hollinrake - 06 September 2018 10:01 AM

Regards decision date, the original decision date pre-dates the date you have mentioned, but the MR decision post- dates it. I imagine it’s the original claim decision that is relevant…but I may chuck this in anyway.

Could be worth a new claim (if ESA still exists for your postcode) to take advantage of the more favourable regs.

Its the decision date that counts.

Chris Hollinrake
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I did think about this as I was packing up yesterday - it would be UC now.

I’ll hopefully be visiting the chap with the SSC1 today so will discuss that and assist if necessary.

Cheers Elliot.