Permanent R2R

I have been referred a client, an Italian national who came to this country in 1995.  It looks as though he worked until 2006 and then was diagnosed with Schizophrenia, at this point he claimed Income Support and then in the last two years DLA.  He was in prison briefly and on his release in July he claimed ESA however he was turned down stating he does not have a right to reside.  Could he qualify for permanent right to reside due to the length of time he has been in the country (I think you have to be legally present for 5 years) or does he still have to satisfy the right to reside rules? If he does have to satisfy the right to reside then I am assuming they will only allow him to claim ESA if his illness is seen as temporary?

hi

on permanent right to reside point - see this thread on recent ecj advocate general’s opinion saying that periods of residence lawful under national law should count towards 5 years -

http://www.rightsnet.org.uk/forums/viewthread/1974/

however, i think dwp will continue to contest any appeal on that basis and so, even if you win at tribunal, may well go on to upper tribunal etc, etc.

maybe better to argue temporary incapacity - here’s link to briefcase summary for CIS/3890/2005 which says that permanent condition doesn’t necessarily mean permanent incapacity -

http://www.rightsnet.org.uk/briefcase/summary/Right-to-reside-and-temporary-incapacity-for-work/

is there any chance he could claim jsa while appeal goes on to be on safe side?

cheers ros

Ros is of course right on the incapacity point, but I think you should run the permanent R2R as well.

My understanding of recent ECJ law is that someone can only claim a permanent R2R after 30/04/06, when 38/2004 was introduced - however,  “lawful” periods of residence prior to 30/04/06 can count, so if your client has 5 clear years as a worker prior to 30/04/06 he would have acquired a permanent R2R even though he is not claiming it until now. Periods of residence that are not strictly “lawful” after his 5 years as a worker would not remove his permanent R2R- this can only be lost by 2 years absence from UK.

Do others agree, or am I just barking up the wrong tree (or just barking…)

I think to advise clearly on whether there is a permanent right of residence under law on this as currently declared in the UK would need to know nationality of the claimant.

If he is an EU national and always has been since 1995 (ie not an A8 or A2 national) then if has done 5 years work (as you suggest is the case) this is an uncontroversial basis on which right to reside can be asserted and which I would have thought DWP would accept (subject to the evidence of work history being accepted).

The Ziolkowski case discussed elsewhere is relevant only to periods where there was no EU law right of residence (or at least no such right under the Directive 2004/38 or one of the instruments it replaced) rather than in a case where there may be a clear EU law right of residence as a worker for a considerable period.

Martin.

fair enough!

Thanks for your responses, Martin - he is an Italian national so would come under the EEA rules.

I now have further information though which I think will affect his appeal, his work history prior to his mental health dignosis is much patchier than I thought, he mostly did low paid, cash in hand work and therefore will not have the NI history as proof of employment.  He was also in prison for 3 years from 1997-2000.  Although he was claiming benefits for the last 6 years I think I have read that just being in receipt of benefits for a period of time does not count as being lawfully present here therefore based on all of this it does not look like he is going to be able to show a permanent right to reside? 

Therefore would he need to argue that although his schizophrenia diagnosis is not a temporary illness his inability to work is temporary so he can still be considered a worker and therefore has a right to reside?