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right to reside - a new low - probably not, but it will entertain!
EU national who has worked in UK since 2004 inc. periods on ESA/JSA. Now receiving UC. It appears (still need to confirm) he was in receipt of LSUC since 2016 and has recently been ‘migrated’ to FSUC and had to attend a R2R interview as part of that ‘new’ UC claim. Now found not to have a R2R because he is a ‘jobseeker’ and therefore not a ‘qualified person’.
Local JCP (via MP) confirm a decision was made in 2016 that client was found to have a permenant right to reside for ESA purposes.
In UC MR (17 pages!) DM states (amongst other arguments) on advice of DWP Legal Group - that that (previous decision) was not a determination that the SSWP can make under the I(EEA)regs but a determination for the SSHO to make.
We have assisted many claimants with R2R decision / appeals over the years. We have yet to see a benefit decision where the decision under I(EEA)Regs was made by the SSHO rather than the SSWP!
The UC DM further argues - in the earlier decision the DM was satisfied the claimant has a permeneant R2R but I am not prepared to accept that earlier evidence and decision.
screams!
Site Safety & Health Officer?
Sec of State Home Office (for those without a tongue in their cheek)
What’s the bets that you don’t even receive an appeal bundle as the Appeals officers will review the case in the client’s favour! The last 5 R2R cases that I have had to appeal for migrants have all fallen that way. The UC Decision Makers in respect of R2R are deplorable. Even simple things like understanding derivative right to reside is shambolic, most recent one they decided the letter the client had provided regarding attending school wasn’t acceptable and instead of coming back and telling the client precisely what they wanted they gave decision that they had no R2R and immediately closed claim!
Sec of State Home Office (for those without a tongue in their cheek)
ohh the SSHD
You’d think they’d try and get that right at least
https://www.gov.uk/government/ministers/secretary-of-state-for-the-home-department
Certainly an odd one.
It begs the question as to why the DWP hire entire teams of EU law decision makers if they aren’t actually allowed to make decisions about EU law.
Is the implication of this that no EU national can access benefits unless a decision on their status has been made by the Home Office? Or does it apply only to permanent residence decisions or only to UC decisions and if so why?>
Obviously totally impractical but also surely against all EU law as it implicitly assumes no free movement of workers?
This decision makes no sense. The I(EEA)regs, as I read them, confer rights if certain conditions are met. The Secretary of State’s role under the regs is to issue documents effectively confirming that the conditions are met, but the key point is that the conditions have been met. That’s an objective test. The EEA national doesn’t have to have the SoS’s endorsement of his/her status, though no doubt it’s helpful if he/she does.
The SoS also has various powers to exclude people who otherwise would have a right to reside. The regs do not specify which department in practice performs these duties and exercises these powers. In any event it’s a basic constitutional rule that the office of Secretary of State is a single office so any Secretary of State can exercise the powers and perform the duties of any other Secretary of State.
screams!
Having been sat in a room with Judge Rowland lamenting the fact that the Social Security jurisidiction was doing the SSHD’s job for him in EU matters, my only reaction can be:
me/ facepalm
It often occurs to me that many of those people tasked with applying the law of the land have nothing more than a passing acquaintance with it. Do they not think anyone is watching?
screams!
Having been sat in a room with Judge Rowland lamenting the fact that the Social Security jurisidiction was doing the SSHD’s job for him in EU matters, my only reaction can be:
me/ facepalm
It often occurs to me that many of those people tasked with applying the law of the land have nothing more than a passing acquaintance with it. Do they not think anyone is watching?
What is most interesting in the decision is that the reasoning is based on advice the DM sought from DWP Legal Group - who ssem to have provided an ‘interesting’ approach to the application of I(EEA)Regs and other aspects of the decision making process in a case where there has been a previous R2R decision that the claiamnt has a permeneant R2R (but is now ‘downgraded’ to ‘jobseeker’ status only).
[ Edited: 5 Sep 2018 at 12:40 pm by Peter Turville ]are we looking at what’s to come post-Brexit?
At that point I can’t see that the SSWP would be the person to make relevant decisions on residency status.
Is the plan rolled out ahead of time?
It often occurs to me that many of those people tasked with applying the law of the land have nothing more than a passing acquaintance with it. Do they not think anyone is watching?
it’s like the home office losing all those immigration appeals and trying to pretend they haven’t….
Understanding of EU rights of residence has always been appalling in the DWP, at least outside of Wick - but it’s certainly got worse with UC. Recent examples in my cases, all at least at MR stage, have included…...
- we accept that you had a right of residence as a self-employed person and retained that when temporarily incapable of work. But you then failed the WCA so cannot now retain it.
- we accept that a decision was made that you had a permanent right to reside when claiming ESA, but the test for UC is ‘different’ - without specifying how.
- the work you (i.e. an A8 national) did before 1/5/2011 cannot count - including the work between 1/5/2009 - 30/4/2011 - cannot count because it was not registered work.
- you are not a 3rd country national who can retain a right of residence because although all of the other conditions are met, your EEA husband stopped being a qualified person before the marriage was terminated (this is not what Art 13(2) of the directive says - it requires the spouse to have been a qualified person at the date divorce proceedings were initiated) but then on appeal, you do have a right of residence because you have a 5 year EU family permit that hasn’t expired!!!
Am reviiving this old thread as it is the closest I could find to my issue regarding a potential overpayment for past period Including per 2004.
Before Brexit, could the SSWP or a tribunal ever make decisions on right to reside for a 3rd country national spouse of of an EEA national, when the 3rd country national has no leave to remain in UK at all (never applied to HO as family member of EEA national, no other type of leave stamped in their passport/no BRP either, not even some kind of leave with NRPF).
Or does there have lawful presence in the country before any EU rights could be considered by a DWP decision maker or a tribunal?
Same as EEA nationals generally: residence documents for family members were not compulsory and were of merely declaratory effect if the person took up the option of obtaining one. They could come in handy as evidence, but the person had the right to prove their status by other means.
s7 of the Immigration Act 1988 absolved family members of the requirement to have leave to enter or remain in the same way it did for EEA nationals themselves, just so long as they were exercising EEA rights.
So yes, benefits decision makers and Tribunals could and frequently did make those decisions - there are dozens of UT decisions doing exactly that.