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Retaining the right of residence as a family member of an EEA National and UC
Hi all,
Would be grateful for an opinion on this case.
My client is a Ghanaian national who came to UK in 2007. She divorced her Italian husband in 2015.
In June 2016, she claimed UC and this was awarded pending decision from Home Office as to whether she has retained a right residence.
There was a long delay by Home Office and in March 2018, the DWP made the decision that my client did not have a right to reside and that she had been overpaid UC from June 2016 - March 2018.
She did an MR on her own, this was refused and she left it there deciding to wait for Home Office decision.
In November 2019 the Home Office deemed she retains the right of residence as a family member of an EEA National from 24 March 2016 as long as she a remains a worker, self-employed, or self-sufficient.
Following the Home Office decision, she made a new claim for UC in November 2019 which was awarded but they refused to backdate this to the date of the first claim in June 2016 even though she was entitled at that time and they ended the claim prior to the Home Office decision.
Following a long complaint process, they issued a new MRN this month stating that they agreed that she was entitled to UC from June 2016 to March 2017 but not from March 2017 to March 2018 when they closed the claim so she was still overpaid for this period. This is because she stopped working due to difficult pregnancy. She gave birth in May 2016 and they say her retaining worker status ended 41 weeks later in March 2017. She was looking for work from March 2017 but did not find work until April 2018 and that was agency work.
So for grounds for appeal, is there any argument that she retained worker status until April 2018 as she was getting UC and looking for work? Is SSWP v Elmi relevant here?
Thanks!
I have never heard of a provisional award of UC being made in this manner - that is extraordinary.
My immediate thought is that this lady sounds likely to have obtained permanent residence through five years lawful residence before March 2018 given that she has been in the UK as a family member of an EU national since 2007. What is the history?
I have never heard of a provisional award of UC being made in this manner - that is extraordinary.
My immediate thought is that this lady sounds likely to have obtained permanent residence through five years lawful residence before March 2018 given that she has been in the UK as a family member of an EU national since 2007. What is the history?
Thanks for your response!
Yes, I found that strange as well…..
She came to the UK from Ghana as a student in 2007. She married her EEA national husband in 2011 and they divorced in 2015. MRN states she has not obtained permanent residence as she was not the spouse for 5 continuous years and there is also no evidence to determine that her ex-husband was a qualified person whilst she was residing as being his family member.
If you can prove the ex-husband was a qualifying person during the marriage then you can glue on the period of retention after that and show permanent residence. See Reg 15(1)(f) EEA Regs. There must be some evidence that he had been a qualifying person for some or all of this time otherwise the HO would not have granted a family member card and would not have found she was entitled to retain her rights after the divorce.
If you can prove the ex-husband was a qualifying person during the marriage then you can glue on the period of retention after that and show permanent residence. See Reg 15(1)(f) EEA Regs. There must be some evidence that he had been a qualifying person for some or all of this time otherwise the HO would not have granted a family member card and would not have found she was entitled to retain her rights after the divorce.
Thanks Eliot, I will trying to get more info on the ex-husbands status. Thanks for your help!
Even if cannot argue permanent residence I think it could be argued that the requirement for a TCN retaining status following divorce to be a worker or self employed person (in article 13(2) of Directive 2004/38) includes a person retaining that status - here via the Saint Prix route during pregnancy.
It seems to me that this is clearly arguable.
It is also arguable that this is provided for in Reg 10 I(EEA) Regs on retained rights of residence:
“(6) The condition in this paragraph is that the person—
(a)is not an EEA national but would, if the person were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or
(b)is the family member of a person who falls within paragraph (a).”
Reg 4 defines “worker” as a worker for the purposes of the Treaty.
In Saint Prix the CJEU said simply that the person was still a worker for the purposes of the Treaty when taking time off due to pregnancy see para 40:
The fact that such constraints require a woman to give up work during the period needed for recovery
does not, in principle, deprive her of the status of ‘worker’ within the meaning Article 45 TFEU.
I often come across the standard MRN where they say that “there is no evidence that the claimants partner was a qualified person.
I counteract those responses with a more or less standard submission these days.