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Permanent right to reside

Anne Higgins
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Welfare rights officer - North Lanarkshire Council

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Client has been in UK for over 12 years.  Has worked or claimed benefits in the past but became pregnant.  She has a gap of 2 weeks due to failing work capability test.  She did not appeal and created the gap.
She had her child in the UK in 2016 and is getting Child benefit and tax credits.  Would she qualify for right to reside because of her child as if she does not get Income Support she will have to leave the Country.  She cannot work as she has nobody to look after child

Elliot Kent
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I mean there are quite a number of questions arising. For starters, I am assuming that this lady is an EEA national? If she is, then she would have a permanent right to reside if there is a period of 5 years in which she was residing in the UK in accordance with Directive 2004/38/EC - e.g. if she worked for 2 years, was temporarily sick for a year and then went back to work for another 2 years.

Whether there is a gap in her benefits claim history really doesn’t count for much. Whether she passes or fails the WCA is not the same question as whether she was temporarily sick for the purposes of EU law.

As to the position with her child, I would really focus on permanent residence first. Being responsible for a child does not give you an automatic right to reside even if they would need to leave the UK if the right of residence was refused.

But yeah, we really need more information to tell you anything useful.

 

Rehousing Advice.
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Yes.

You seem to be talking about a Zambrano carer? 

A Zambrano carer is the non-EEA national primary carer of a British citizen who is residing in the UK, and who has a right to reside if their removal from the UK would require the British citizen child to leave the UK and the EU.

Difficult to know…..

Anne Higgins
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Welfare rights officer - North Lanarkshire Council

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She is an EEA National.  She has been refused Income Support as she cannot prove continuous 5 years working. her records of employment show a lot of gaps with no finishing dates etc

Elliot Kent
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I would start by taking a history from her. When was she working, why did her jobs stop, what did she do when she was out of work etc. etc. Also worth asking about whether she had any family in the UK during any of this time and what they were up to.

The DWP certainly like to make a point about claimants being unable to give precise start and end dates for their work, but you can usually overcome this at appeal by giving a thorough enough account of what happened to the claimant’s best recollection.

past caring
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Welfare Rights Adviser - Southwark Law Centre, Peckham

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Also - “her records of employment”? What precisely do you mean by this? Is it, as Eliot suggests, her history or something more concrete? What I am finding these days is that HMRC are happy to provide quite detailed employment history records (start date, end date, pay, tax, NI contributions) on the strength of a telephone request - and that the response is quite rapid.

Of course, the records may not show what you want them to show, but that’s always a risk.

 

Paul_Treloar_AgeUK
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Information and advice resources - Age UK

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Intermittent work histories aren’t, in and of themselves, a bar to establishing a permanent right to reside.  I had one client with a very chequered work history, lots of cash-in-hand jobs and short-term positions, who was able to argue at tribunal that he could be treated as having reached the five year’s necessary. As above, get records from HMRC and see where that gets you.

Timothy Seaside
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In answer to the question about whether she can derive a right of residence from her child:-
She is an EEA national, so not a Zambrano carer.
Her child is not old enough for full-time education so she can’t use the Ibrahim/Teixeira route.
She can only derive a Chen right if the child is financially self-sufficient (and would have to leave the UK if she did).

So it’s probably no.

As other people have said, your best bet is to get a complete work history from her. And don’t forget that being off work because of pregnancy and maternity can still count as lawful residence when building up the five years for permanent residence. I’ve found HMRC really helpful with getting a list of employment.

Timothy Seaside
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The Settled Status trials are over, and the system is now live!

From today, an EU citizen can apply for Settled Status if they’ve got a passport (and can prove they’ve been here for at least six months in every year for a continuous period of five years). Then they’ll have Indefinite Leave to Remain, and won’t have to worry about deriving a right from anybody else as they will have their own right of residence.

This should tidy things up for a lot of people.

Vonny
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Welfare rights adviser - Social Inclusion Unit, Swansea

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Will this give a right to means tested benefits - especially UC?

Damian
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Welfare rights officer - Salford Welfare Rights Service

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There doesn’t seem to be a limitation preventing this as far as I can tell - they would need to amend reg 9. Presumably the same for pre settled status.

Rebecca Lough
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Welfare rights - Greenwich Council

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I have attached a settled status letter. It does not suggest automatic entitlement to benefits. Question is whether that is correct…

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Elliot Kent
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To qualify for (say) UC you need to be habitually resident in the UK per reg 9 of the UC Regs. You cannot be treated as habitually resident unless you have a “right to reside” in one of those places - reg 9(2). Certain rights to reside are excluded - reg 9(3).

Your client has a right to reside because - as the letter states - they have “Indefinite Leave to Remain” and the “right to stay in the UK”.

There is nothing in Reg 9(3) (as of right now) to say that leave granted under Appendix EU does not count. So on the face of it, and unless and until something changes, your client would have a right to reside for UC purposes.

I would just say to treat it with caution as we have no assurances that this is going to remain the position.

chacha
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Benefits dept - Hertsmere Borough Council

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This, from free movement, expands more on it. This isn’t really new, EU citizens have always had the same rights as 3rd country nationals in relation to leave to remain (Under national immigration law), but it just so happens that they also have an EU right of residency (European law).

https://www.freemovement.org.uk/how-to-apply-for-settled-status-temporary-status-brexit/


Yes, they will have access to welfare benefits.