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Forum Home  →  Discussion  →  Residence issues  →  Thread

Pre settled status following maternity leave.

HarlowAC
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Hi All

My client is Italian, has pre-settled status and is a worker. Her husband is not an EU citizen and has pre-settled status, and a right to reside presumably as her family member.
She would like to have another baby. From what I can tell she would retain worker status for the period of maternity leave and their UC could continue.
However, I think she’d like to be not working for longer than this.
I understand she could potentially move to ‘involuntarily unemployed’  after mat leave and retain worker status if she was genuinely job seeking.
I have two concerns with this route;
1. If she is entitled to her job back after mat leave and she chooses not to go back, could her unemployment be deemed ‘involuntary’?
2. She would need to demonstrate job seeking when what she really wants is to have more time at home with the children.
Have I missed any other avenues available to her? Any thoughts welcome.

davidsmithp1000
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I presume the eldest child is not school age? - though I don’t know how this would effect her attaining settled status.

HarlowAC
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No, eldest is 2 1/2

Vonny
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how long will she have been in the UK once she has had the baby and her maternity leave?  It would be important for her to know that after being here for 5 fives she can then apply to settled status and does not have to wait until her pre-settled status ends

HarlowAC
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Vonny - 27 May 2022 11:48 AM

how long will she have been in the UK once she has had the baby and her maternity leave?  It would be important for her to know that after being here for 5 fives she can then apply to settled status and does not have to wait until her pre-settled status ends

Genius! She’s been here since 2018, so this could work.

Mr Jim
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Is there anything preventing her husband getting a job?

Jim

HarlowAC
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Is there anything preventing her husband getting a job?

He does have a job but he’s not an EU citizen so derives his right to reside from her. Not sure if this would help?

Mr Jim
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HarlowAC,

If her husband has pre-settled status and is working he can be the claimant for means-tested benefits.

They both have pre-settled status so both are still subject to the I(EEA)Regs 2016 and the claimant has to have a right to reside in order to claim UC. His right to reside is as a worker. He will not be subject to NRPF if he has pre-settled status.

It would be worth checking their current UC claim to see if the couple rate of the personal allowance is in payment. If it is then is doesn’t matter if she gives up work as long as he works enough hours to avoid sanctions and the benefit cap. Also, if she is entitled to SMP this is not counted as income for UC and is ignored but SMA is and is deducted pound for pound.

Jim

[ Edited: 31 May 2022 at 09:30 am by Mr Jim ]
Elliot Kent
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Mr Jim - 31 May 2022 08:41 AM

HarlowAC,

If her husband has pre-settled status and is working he can be the claimant for means-tested benefits.

They both have pre-settled status so both are still subject to the I(EEA)Regs 2016 and the claimant has to have a right to reside in order to claim UC. His right to reside is as a worker. He will not be subject to NRPF if he has pre-settled status.

Jim

This doesn’t work I’m afraid.

Mr has a domestic right to reside because of his pre-settled status, however this is excluded from consideration for UC entitlement.

He does not have any EU law right to reside other than that which he can mirror from his EEA family member. As he is relying on the wife in order to mirror a status, his EU law rights will simply follow hers and we are just cycling back round to the same questions.

HarlowAC
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Hi

NRPF Network say

A person with pre-settled status will only be eligible for Universal Credit (and other means-tested benefits), if they are exercising a qualifying right to reside, such as. Examples of when a person will have a qualifying right to reside include:

An EEA national who is working, self-employed, or recently stopped working, or the family member of an EEA worker/self-employed person
A family member who has a retained right to reside
The primary carer of a child, who is in education and whose parent is an EEA national who has worked in the UK.

My understanding is that the husband of my client gets his qualifying right to reside from my client who is a worker. If she ceases to be a worker (or retained worker) he ceases to benefit from her right to reside.  Although he would be a worker, he is not an EU citizen, so does not come into the first point above.

I’m a bit confused by happy to be wrong!

Sorry, overlapped with Elliot

Ruth Knox
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We have to look at 3 different issues:
(1)  Settled status - she will achieve that after 5 year’s continuous residence in the UK regardless as to whether she has been a worker or one of the other categories.  So this sounds like it would happen in 2023. 

(2) Whilst she is pre-settled status (i.e. up to 2023) she will only receive a means-tested benefit if she can be classified as a worker (or one of the other categories).  She is a worker whilst she is working.  She is a worker for up to a year whilst she is absent on Maternity Leave. 

(3) Her husband’s status.  If it is dependent on being her family member, then his working won’t entitle him to means-tested benefits - that will have to come through her. 

But it does sound that your client should be able to make it to Settled Status pretty easily unless there is something I have overlooked.

Ruth Knox
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And a further point, I have come across another client who didn’t realise she could apply for settled status until her five years’ pre-settled status had run. Like this client, she had actually been in the UK since 2018, so I am wondering if this is going to be a common problem.