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Pension Credit & R2R
I have a client who is a German National. She has lived permanently in the UK since 1991.
She was diagnosed HIV+ in 1992.
She worked in the UK and was employed by a German charity from April 1991 to March 1999 when she became too ill to continue in employment. The claimant states that she paid income tax in the UK but NI contributions were made to the German state.
The claimant, when she became ill, was treated in Germany for 6 months from May to November 1998 following which she returned to the UK.
The claimant also has an old German passport which has a stamp of Indefinite Leave to Remain (ILR). We asked her to get advice on this from an immigration solicitor and it would appear that this remains valid which might make any questions as to right to reside immaterial.
Ordinarily, I would advise this client that she has a permanent right to reside based on her being in continuous employment for 5 or more years. However, my concern is around the fact that although she worked in the UK for 8 years she paid income tax here and NI in Germany. Although I can’t find anything that might mean that she does not possess a right to reside my concern is that the DWP might argue this is the case because NI was paid to the German State.
Does anyone have any information on this? Is it relevant?
Technically the claimant is also transitionally protected as she has been in receipt of a relevant benefit continuously since 1999 without a break. She gets IR-ESA currently but reaches pension credit age on 6 July 2017 so could come off ESA and claim PC instead. I would like this transition to be as smooth as possible.
It would appear that she could argue for benefit entitlement based on transitional protection or ILR.
Is there anything to stop her arguing that she has a right of permanent residence in the UK on the basis of 5 years employment or some other derivative (for example a worker who has ceased activity).
The claimant also has an old German passport which has a stamp of Indefinite Leave to Remain (ILR). We asked her to get advice on this from an immigration solicitor and it would appear that this remains valid which might make any questions as to right to reside immaterial.
I don’t even think she needs any part of EU law, if she has ILR, she has a right of residence based on UK law, expired passport or not. Probably needs it on a new passport but contacting the Home Office directly, to confirm her ILR should do for now.
Yes there is.
Unfortunately, whilst your client may have been a worker (and achieved worker status) her period of economic activity in the UK was confined to a period before a permanent right of residence (i.e. due to having exercised an EU Treaty right for a prescribed period) even existed as a right/concept in EU law. That right came into being only on 30/4/2006 when EU Directive 38/2004 and the Immigration (EEA) regs 2006 came into force (the regs were the UK govt’s implementation of the directive).
So the problem is whether legal residence (i.e. in exercise of a Treaty right) before that 30/4/2006 date can count towards aquiring a permanent right of residence?
1. In SSWP v Lassal Case C-162-09, the ECJ’s answer was ‘yes’ – such periods of legal residence can count. So a person could potentially have aquired a premanent right to reside on 30/4/2006 – but not before that date (the right did not exist). Lassal is particularly useful for those where the period of residence that you are arguing gives rise to a right of permaananet residence straddles the 30/4/2006 date.
2. The situation is more problematic where that period of residence falls wholly before 30/4/2006 because of the ECJ’s decision (and the UK’s interpretation of the same) in Dias v SSWP Case C-325/09. This said that a Lassal right of residence can be lost once acquired – and not simply by an absence in excess of two years from the host Member State, but also by a period in excess of two years for which there was no legal basis. In other words, although your client was a worker between 1991 and 1999, she was not in this position once she (presumably) claimed Income Support in 1999 and then from that point onward. There would appear to have been no legal basis (i.e. no EU Treaty right being exercised) from 1999 onward….
3. There is an argument to counter this, that Dias only decides that a Lassal right of residence can be lost, not that it is inevitably lost in such cases. In other words, an individual assessment of circumstances is required – see argument at pages 362 – 364 of Volume II of the Social Security Legislation 2015/16.
Although maybe this argument is maybe a little bit pushing the ennvelope/flying a kite, it is one I used in an appeal to the UT in right to reside case that has still to be decided – though in the event we did not end up pursuing that argument (because it turned out that whilst we thought the client in that case had aquired a Lassal right, it turned out she hadn’t – the case was then argued on a different basis) we were nevertheless granted permission by the UT. So the argument is viable.
But I’d be prepared to have to use the transitional protection or ILR routes…..
The permanent right to reside after five years under Article 16 of Directive 2004/38/EC was a new right introduced by that Directive and its retrospective application is limited by the Dias case. However the permanent right to reside under Article 17, in particular ceasing activity after at least two years due to permanent incapacity, is a carry-over from Regulation 1251/70. At the time when your client ceased activity in 1999 it appears she already had a permanent right to reside by virtue of Article 2.1(b) of that Regulation. The way I read it this is unaffected by the remarks in Dias about the five-year rule.
Therefore I think all three arguments will work for your claimant.
ILR appears to be the most straightforward at this stage. But getting an up to date immigration document is not cheap, so if she encounters resistance she might relegate that to Plan C and go with (1) transitional protection from 2004 and (2) permanent right to reside under the pre-existing provisions that were repealed and re-enacted in Article 17 of 2004/38/EC
The permanent right to reside after five years under Article 16 of Directive 2004/38/EC was a new right introduced by that Directive and its retrospective application is limited by the Dias case. However the permanent right to reside under Article 17, in particular ceasing activity after at least two years due to permanent incapacity, is a carry-over from Regulation 1251/70. At the time when your client ceased activity in 1999 it appears she already had a permanent right to reside by virtue of Article 2.1(b) of that Regulation. The way I read it this is unaffected by the remarks in Dias about the five-year rule.
Therefore I think all three arguments will work for your claimant.
ILR appears to be the most straightforward at this stage. But getting an up to date immigration document is not cheap, so if she encounters resistance she might relegate that to Plan C and go with (1) transitional protection from 2004 and (2) permanent right to reside under the pre-existing provisions that were repealed and re-enacted in Article 17 of 2004/38/EC
Yes, your interpretation is in line with our understanding and also in line with advice we’ve given local Age UK I&A services with respect to older EEA nationals, and which was drafted in conjunction with the Aire Centre. That also appears to be CPAG view http://www.cpag.org.uk/content/permanent-residence-settled
Hi all, hence my suggestion of the ILR, albeit unsure when and how ESA(IR) was awarded.
I’m assuming it’s been awarded purely due to the illness mentioned and no particular status has been looked at to make that award (Been here more than 3 months and is ill so wouldn’t necessarily need to retain worker status or if self -employed, still be counted as such) because this may become more complicated if the DWP/LA decide that she was a “German” working in the UK for a “German” company, due to the Nics paid? If it had been paid to the UK then no worries.
Like I said I could be completely off track here, but ILR would be my first option (The DWP Pension Service should have access to check this directly with the HO, as do other DWP departments, which removes the expense), again, could all be moot, depends.
Yes, ILR would be most pragmatic route if it’s still in place, of course.
On the Dias point, I’m now doubting myself again however. Now reading huge screeds of European caselaw…..
Re: HB Anorak’s and Paul’s posts regarding permanent incapacity above - correct, of course, and an oversight on my part. But wouldn’t this require evidence of permanent incapacity at the time that the client ceased work? The evidence can be post-dated, of course/does not need to date from that time - but would there be a problem if icapacity that was considered temporary at the time only became permanent with the benefit of hindsight?
Probably academic if the ILR is a runner anyway…..
All, thanks very much for your informative replies.
Will keep you posted on events as they progress.
If you have any other information that is relevant please lets us know.
I’d certainly be interested to know how you get on, as I suspect we’re going to see more cases over a similar nature over coming months and years.