Hi, I am at a loss wth this client and just want to make sure there isnt something I am missing as it seems so unfair!
Client is German national. Mett and married husband - UK national in 1993 and moved to UK 1994. UK national husband worked in Germany, became unwell and they came back to the UK. They have been here ever since.
Since then German national has never worked. Neither ha UK national husband, he has been unwell and she has looked after him but never claimed CA. They lived on IS and then IRESA as a couple . They came in to some inheritance and stopped claiming benefits. The money has dwindled and they have now made a claim for UC as in a full service area. She has been turned down as she is no an EEA worker, he has been awarded single rate.
I know i need to find out how long they were self sufficient and not reliant on benefits for to see if that would make a difference, but if that was less than 5 years it wouldnt be relevant, i got the impression it was less than this time.
Any other way of getting round this other than her becoming a worker? She is early 60’s and will obviously struggle to find work (by her own admittance). They also have concerns that if he psses away she will be left with no entitlement to anything.
Okay so it sounds as though the wife has little or no chance of establishing a relevant right to reside on her own account. That leaves us asking if she can establish rights through a family member.
The husband is a British citizen so, in general, it would not be possible to establish rights through him - however, the husband may well be in the category of British citizen’s who have EU residence rights, in that he appears to have genuinely resided in Germany as a worker.
At this point, the CPAG book will tell you there is quite a bit of a divergence of EU and UK law.
UK law says that the effect of gaining these rights is simply that the British citizen is treated as an EEA national - so if they have rights as a worker (or whatever), the family member can “mirror” then. This is unhelpful to the wife because the husband would not have any right to reside if he were an EEA national - he is economically inactive so far as the UK is concerned.
However there is an ECJ case called Eind (Case C-291/05) which the UK legislation appears to ignore. The case has similar facts to yours in that it was a Dutch man returning to the Netherlands following a spell of work in the UK which had ended due to illness. He wanted to be joined by his daughter who was a third country national.
The ECJ held that Mr Eind’s economic inactivity on his return to the Netherlands was irrelevant. It was considered to create a deterrent to free movement rights to leave open the possibility that - on return to the home country - the worker would not be able to be accompanied by their family.
As EU law trumps UK law, it would appear that the wife could attempt to dispute the decision on the basis of Eind.
(Here’s hoping that someone else has a simpler route to take)
Mr Eind is mentioned in this case http://www.bailii.org/uk/cases/UKUT/IAC/2017/125.html along with Surinder Singh and wife (who were married and won)
The U Immig Tribunal refers the question of an unmarried partner (not married and therefore unclear) in circs otherwise identical to Surinder Singh to the CJEU
Your couple would seem to be identically placed to Mr and Mrs SS who were deemed to have rights to reside because of working in another member state so the argument might be more straightforward
Thank you both. He was asked for evidence that he worked in Germany but couldnt see why and maybe this is it. I will do some further research to try get my head round it a little more. Thanks.