3 month living in UK for CTC/Child Ben
British mum lived in Spain for 10 years, worked there. Separated from partner and returns to UK with young baby. After 10 weeks in UK she goes back to Spain for 2 weeks, primarily to enable contact between ex and baby (no contact orders). Is told on return to UK that she will have to live in the UK for another 3 months in order to receive CTC/ChB.
I’m not exactly sure where the 3 months rule is found in the legislation (EDIT below) but the CPAG R2R training notes I have refer to “living in the UK for the past 3 months” rather than ‘being present in the UK for the last 3 months’ which may be significant.
Also, some guidance here (which admittedly does refer to HMRC and common sense in the same paragraph) https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/325629/migrants_3_months.pdf and says:
6. What happens if someone has recently arrived in the UK but has to leave for a short period of time and then returns? Does the period of living in the UK before their departure count towards calculating the 3 month period?
HM Revenue & Customs will make a judgement on whether the claimant ceased to be living in the UK during their absence. A common sense approach will be applied to the normal everyday meaning of ‘living in’ and all the facts and circumstances of the case will be looked at, including the reason for the departure and the length of time absent from the UK
My (rather dated) R2R notes also say that the Euro Commission had asked the CJEU to declare the test incompatible with co-ordination rules C-308/14. Anyone know the outcome of that?
Any thoughts/help appreciated.
EDIT Relevant Regs are The Child Benefit (General) and the Tax Credits (Residence) (Amendment) Regulations 2014[ Edited: 16 May 2017 at 05:15 pm by Billy Durrant ]
Periods of residence in another EEA state could be used to satisfy the test by the aggregation principle. This is mentioned in further HMRC guidance https://www.gov.uk/hmrc-internal-manuals/tax-credits-technical-manual/tctm02035 but only accepted in relation to Croatia, Cyprus, Denmark and Hungary due to a qualifying period of residence being required as part of their entitlement conditions for one or more of their family benefits. Arguably this is overly restrictive.
More generally the only caselaw I’ve seen on challenging the “living in” test for JSA so far is a NI case AEKM-v-Department for Social Development (JSA)  NICom80 http://iaccess.communities-ni.gov.uk/NIDOC/users/internetsearchpage.aspx C11/14-15(JSA)
which found the test does not contravene EU law provided other factors connecting the claimant with the CTA are taken into account but also said ‘the expression “living in” can and should be afforded a broad construction which is capable of admitting and assessing evidence of the connection of the claimant with the CTA.’ (para 61)
The specific case C308-14 was on the right to reside test http://curia.europa.eu/juris/document/document.jsf?text=&docid=180083&pageIndex=0&doclang=en&mode=req&dir;=&occ=first&part=1&cid=341242
Many thanks Mark. Looks like it aint gonna be an easy one…