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Forum Home  →  Discussion  →  Residence issues  →  Thread

Non EEA Family member but EEA person now left UK - entitled to HB?

GHE
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HB, Bolton Council

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Total Posts: 25

Joined: 4 January 2011

Hi,
We have a Non EEA client and her non eea child, who entered the Uk in March 2020. Her ID shows she is a family member. The expiry date on the card is August 2022.

The family member is her father who was the EEA National. We have no evidence if he was exercising his treaty rights and he has returned to Italy. The client has pre settled status and has now started work.
Is she eligible to claim housing benefit as she has been placed in temporary accommodation?

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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Total Posts: 2895

Joined: 12 March 2013

Reg 10(3) & (4) of the I(EEA) Regs 2016, which transposes Article 12 of Directive 2004/38/EC, provides for retention of family member status following the principal EEA national’s departure from the UK.  The right to reside as a family member is only retained by a non-EEA national if that non-EEA national is, or has custody of, a direct descendant of the EEA national who is in education.

You therefore need your claimant to be the person who has custody of a child in school (or maybe a grandchild) of the Italian.

In addition, the Italian needs to have had a right to reside in some capacity (other than pre-settled status) immediately before they left: your claimant can only “retain” something they had to start with.

The non-EEA national’s own economic status is irrelevant (it would be different if the EEA national had died or divorced them, but in the case of departure from the host state the remaining non-EEA national cannot obtain a right to reside through being a worker etc).

GHE
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HB, Bolton Council

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Total Posts: 25

Joined: 4 January 2011

Thanks !