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R2R

 

Benefits Advisor NLC
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Welfare Benefits caseworker Newcastle Law Centre

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I am having a moment where I am questioning myself.

I have a client who is from Algeria, she is on a spouse visa to an EEA national. EEA national has lived and worked in UK since 2006 and has worked since, client only arrived 2014.

She said she is allowed to work on her visa and also there are no ‘recourse to public funds’ restrictions.

They are separating and have a 2 year old, not in a full service UC area.

She has a R2R as spouse of EEA national, can she claim IS on the grounds she is the family member of EEA national with permanent residence?

     
Ruth Knox
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RAISE Benefits Advice Team, Liverpool

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I think she’s got all his rights. They’d better not divorce!

     
Sally63
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Generalist Adviser, Southwark Citizens Advice Bureau

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CPAG welbens pg 1516 says

” If you are not an EEA national but you have a right to reside under EU law ..........ie as the family member of an EEA member, you do not need leave to enter or remain. If this applies to you you cannot be refused benefit on the basis of your immigration status even if, for example, your leave is subject to a condition that you do not have recourse to public funds or subject to a maintenance undertaking”

That seems conclusive but only if the husband is not a British citizen.

She might get problems about her spousal visa if she divorces because they have not lived together permanently for enough time—and applying for benefit as a single person will draw attention to their separation. I haven’t checked that bit because I haven’t got Benefits for Migrants at home. Maybe check before advising her. There is also a Domestic Violence exemption which might help (if she needs it). Don’t divorce is good advice.

     
Graham Summers
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Welfare Rights Officer, Welfare Rights Service, Leicester City Council

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I think you will find that it on CPAG page 1561 she remains his dependant family member until divorce the case law is Diatta v Land Berlin, 267/83 [1985] RCR 00567

 

     
chacha
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Benefits Dept Hertsmere borough Council Herts

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Ruth Knox - 01 September 2017 03:08 PM

I think she’s got all his rights. They’d better not divorce!

Yes, at least till she completes 5 years residence, in 2019.

     
Simon
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Charlotte Keel Welfare Rights, Bristol CAB

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chacha - 04 October 2017 03:06 PM
Ruth Knox - 01 September 2017 03:08 PM

I think she’s got all his rights. They’d better not divorce!

Yes, at least till she completes 5 years residence, in 2019.

Under the citizenship directive (2004/38) the requirement is simply for 3 years of marriage, with 1 of these years spent residing in the UK. However these are rights are not written quite so favourably in the EEA Regs.

     
past caring
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Not written quite so clearly perhaps? I’m not sure what is in Art 13 of the Directive that hasn’t made its way in to reg. 10 of the EEA Regs so as to make the latter less favourable?

     
Simon
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Charlotte Keel Welfare Rights, Bristol CAB

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past caring - 06 October 2017 05:00 PM

Not written quite so clearly perhaps? I’m not sure what is in Art 13 of the Directive that hasn’t made its way in to reg. 10 of the EEA Regs so as to make the latter less favourable?

The difference I was referring to actually concerns nationals of a Member State, which I accept is not relevant to the case under discussion. Para 1 of Article 13 makes a distinction between nationals and non-nationals which isn’t translated in Reg 10.