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Habitual Residency

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Edna
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Hi
Does anyone have any advice re. habitual residency. A German woman who has lived here for 16 years, and who is caring for her disabled partner, has just been told that she fails the habitual residency test as she hasn’t worked for 5 consecutive years in the UK. She has worked for about 4.5 years consecutively , and for a further 2-3 years, but had to give up her work in order to care for her partner - and due to her own ill health. She is suffering from depression and anxiety (treated by her G.P). Are people exempt from the actual habitual residency test if a) they are too unwell to work or b) they have been made involuntarily unemployed because they were a carer? Whether she is exempt from the test or not, does anybody know who might be able to help? She is not entitled to claim benefits and she and her partner have lost their housing benefit because of this (as they made a joint claim).

chacha
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Hi, where is the partner from?

Was he working, if not from the UK?

How long has she been claiming HB? Or any other benefits? (Or has the partner, as the case may be)

ClairemHodgson
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also, one can be habitually resident (which is a question of fact) without necessarily having a formal right to reside.

Edna
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chacha - 18 September 2017 03:05 PM

Hi, where is the partner from?

Was he working, if not from the UK?

How long has she been claiming HB? Or any other benefits? (Or has the partner, as the case may be)


He’s from the UK and has worked here but not for some time because of his disability. They’ve been claiming benefits for about 10 years.

Edna
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ClairemHodgson - 18 September 2017 05:08 PM

also, one can be habitually resident (which is a question of fact) without necessarily having a formal right to reside.

As I understand it, she has the right to reside but they’re questioning her habitual residency (on work grounds) and therefore her entitlement to any benefits.

Simon
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Edna - 18 September 2017 05:45 PM
ClairemHodgson - 18 September 2017 05:08 PM

also, one can be habitually resident (which is a question of fact) without necessarily having a formal right to reside.

As I understand it, she has the right to reside but they’re questioning her habitual residency (on work grounds) and therefore her entitlement to any benefits.

The issue will almost certainly be concerning her right to reside rather than whether she is habitual resident in fact (which from the information provided is beyond dispute), the confusion comes from DWP talk, which views the right to reside rest as part of the habitual residency test.

What was her activity inbetween the 2 spells of employment? & which benefit has she been turned down for? As a British national her husband will have an automatic right to reside (although this right to reside will not be auomatically conferred to your client) and should thus be able to claim HB and ESA (for example), given for these benefits the HRT only applies to the claimant.

Whether your client has a permanent right to reside will (most likley) depend on their activity inbetween her 2 spells of employment. If she was caring for her partner and not seeking employment, it may be that she lost her right to reside due to no longer ‘legally residing’ as per Article 7 of Directive 2004/38/EC. However recent caselaw (OB v Secretary of State for Work and Pensions (ESA) [2017] UKUT 0255 (AAC) suggest that gaps in this 5 year test are not necessarily fatal.

ClairemHodgson
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That’s what i was thinking Simon.

and given the Home Office’s propensity for getting EU citizen’s rights wrong at every available opportunity, it’s not surprising the DWP get it wrong too

so concentrate on the RTR stuff; habitual residency is, as i said, a factual situation, and different from whether one has a right to.

Elliot Kent
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Right to reside is notoriously complicated and this isn’t a simple case. I would suggest referring to someone with more experience in this area.

However the key point I think is that because the partner is British and therefore has a right to reside, ongoing entitlement can be secured simply by switching claimants.

Edna
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Simon - 19 September 2017 10:40 AM
Edna - 18 September 2017 05:45 PM
ClairemHodgson - 18 September 2017 05:08 PM

also, one can be habitually resident (which is a question of fact) without necessarily having a formal right to reside.

As I understand it, she has the right to reside but they’re questioning her habitual residency (on work grounds) and therefore her entitlement to any benefits.

The issue will almost certainly be concerning her right to reside rather than whether she is habitual resident in fact (which from the information provided is beyond dispute), the confusion comes from DWP talk, which views the right to reside rest as part of the habitual residency test.

What was her activity inbetween the 2 spells of employment? & which benefit has she been turned down for? As a British national her husband will have an automatic right to reside (although this right to reside will not be auomatically conferred to your client) and should thus be able to claim HB and ESA (for example), given for these benefits the HRT only applies to the claimant.

Whether your client has a permanent right to reside will (most likley) depend on their activity inbetween her 2 spells of employment. If she was caring for her partner and not seeking employment, it may be that she lost her right to reside due to no longer ‘legally residing’ as per Article 7 of Directive 2004/38/EC. However recent caselaw (OB v Secretary of State for Work and Pensions (ESA) [2017] UKUT 0255 (AAC) suggest that gaps in this 5 year test are not necessarily fatal.

Thanks! I think the small gaps in her employment were due to her own ill health (partly as a result of caring and trying to work). Might she still have qualified as having a right to reside if it was more to do with her own ill health?The case law you quote looks really useful.

Edna
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Elliot Kent - 19 September 2017 01:31 PM

Right to reside is notoriously complicated and this isn’t a simple case. I would suggest referring to someone with more experience in this area.

However the key point I think is that because the partner is British and therefore has a right to reside, ongoing entitlement can be secured simply by switching claimants.

We are currently trying to get some free legal advice. The partner has been worried about claiming for ESA as they have had so many terrible experiences with the system that he fears they will incorrectly decide that he is fit for work. Citizen’s Advice have advised him to claim though, so it is a possibility.

Edna
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ClairemHodgson - 19 September 2017 12:24 PM

That’s what i was thinking Simon.

and given the Home Office’s propensity for getting EU citizen’s rights wrong at every available opportunity, it’s not surprising the DWP get it wrong too

so concentrate on the RTR stuff; habitual residency is, as i said, a factual situation, and different from whether one has a right to.

Will do, thanks!

Elliot Kent
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Edna - 19 September 2017 06:23 PM
Elliot Kent - 19 September 2017 01:31 PM

Right to reside is notoriously complicated and this isn’t a simple case. I would suggest referring to someone with more experience in this area.

However the key point I think is that because the partner is British and therefore has a right to reside, ongoing entitlement can be secured simply by switching claimants.

We are currently trying to get some free legal advice. The partner has been worried about claiming for ESA as they have had so many terrible experiences with the system that he fears they will incorrectly decide that he is fit for work. Citizen’s Advice have advised him to claim though, so it is a possibility.

He doesn’t necessarily need to claim ESA to sort this out.

You don’t have a joint claim for HB - a claim has a “claimant” and a “partner”. Only the “claimant” needs a right to reside - whether the “partner” has a right to reside is (for present purposes) neither here nor there.. At the moment the EEA national is claiming and the LA say she doesn’t have a right to reside - it sounds like it will be a tricky one to sort out.

However because only the claimant’s right to reside is relevant, a very easy solution is to have her close her claim and to have the British national make his own claim for HB with her as the partner. It would then be his right to reside which is relevant and - because he is British - there is unlikely to be any problems.

That would at least secure ongoing entitlement - it would potentially be worth the EEA national putting in an appeal as well in order to try and secure some arrears.

[ Edited: 20 Sep 2017 at 08:06 am by Elliot Kent ]
Edna
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You don’t have a joint claim for HB - a claim has a “claimant” and a “partner”. Only the “claimant” needs a right to reside - whether the “partner” has a right to reside is (for present purposes) neither here nor there.. At the moment the EEA national is claiming and the LA say she doesn’t have a right to reside - it sounds like it will be a tricky one to sort out.

However because only the claimant’s right to reside is relevant, a very easy solution is to have her close her claim and to have the British national make his own claim for HB with her as the partner. It would then be his right to reside which is relevant and - because he is British - there is unlikely to be any problems.

That would at least secure ongoing entitlement - it would potentially be worth the EEA national putting in an appeal as well in order to try and secure some arrears.[/quote]

Thanks! Will it make any difference that they have joint ownership of their house?

She is in the process of putting in her MR.

Edna
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Edna - 20 September 2017 09:16 AM

You don’t have a joint claim for HB - a claim has a “claimant” and a “partner”. Only the “claimant” needs a right to reside - whether the “partner” has a right to reside is (for present purposes) neither here nor there.. At the moment the EEA national is claiming and the LA say she doesn’t have a right to reside - it sounds like it will be a tricky one to sort out.

However because only the claimant’s right to reside is relevant, a very easy solution is to have her close her claim and to have the British national make his own claim for HB with her as the partner. It would then be his right to reside which is relevant and - because he is British - there is unlikely to be any problems.

That would at least secure ongoing entitlement - it would potentially be worth the EEA national putting in an appeal as well in order to try and secure some arrears.

Thanks! Will it make any difference that they have joint ownership of their house?

She is in the process of putting in her MR.

 

past caring
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In addition, it may well be possible to close the gaps when she wasn’t working due to ill health via the argument that she retained worker status during these periods of temporary incapacity.

1. Retention of worker status on this basis is a right in EU law - it has nothing to do conceptually with the tests for ‘incapacity’ or ‘capability for work’ in UK benefits law. So the client doesn’t need to have claimed ESA (or any of its precursors) during periods of temporary incapacity, much less actually satisfied the WCA.

2. Which means that she only needs provide evidence of the fact that she was suffering temporary incapacity - a GP letter will cover it. And it will cover it even if it is written now about a period 4 or 5 years back.

Simon
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Edna - 19 September 2017 06:17 PM

Thanks! I think the small gaps in her employment were due to her own ill health (partly as a result of caring and trying to work). Might she still have qualified as having a right to reside if it was more to do with her own ill health?The case law you quote looks really useful.

Yes - if she was temporarily unable to work due to illness or accident she can retain her worker status on this basis. She will ideally need to evidence this with a medical certificate from her GP covering the relevant period.

[ Edited: 20 Sep 2017 at 10:38 am by Simon ]