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stuck! permanent right of residence

 

dizzymare
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welfare benefits adviser, dudley mbc

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Joined: 18 June 2010

HI

Currently working with a Czech lady aged 27. She came to UK with her Mother and Father at age 16 in 2006. Dad held workers authorisation certificate and workers registration certificates for various employment, but never managed 12 months continuous employment.  It seems like there often was a few months here and there and then gaps of a few months between. Last verified certificate and payslip in October 2008 - unsure what happened after that. We have evidence that claimants Father claimed JSA Jan 2009 and this was refused as insufficient nics and no RtoR. In May 2009, the family moved out of the area, and did not return until April 2014 (no proof of what was going on then, but possibly working) I cant go forward for the 5 years as there are gaps so looking at going backwards

April 2014 Father is claiming JSA and remained on this until 6 October 2014 (guessing retained worker status) He then became self employed 4/10/14. He supplied accounts for period 15/16 and 16/17 and as of today, is still self employed (though not earning at level 1 threshold for genuine and effective work).  that gives three years in self employment. Prior to that April 14 - Oct 14 - he would have had a retained worker status (im guessing this based on JSA).  This gives 3.5 years of a continuous period ‘residing legally’. Im trying to go back further if I can, but this depends on contact with Father and him holding the necessary information.

The lady herself is currently in receipt of ESA.  We managed to gain an award on the basis of right to reside as a family member of an EEA national who is self employed. This is because the lady is affected by schizophrenia and needs support with daily living. Unfortunately, this lady is now pregnant and has recently had a two month stay in a mental health unit.  To add to the problem, she is homeless and family are saying she cannot return home (she doesn’t want to as the situation there is not good and very volatile)

Our homeless team (though they do want to assist) are saying that she is no longer dependant on her Father and therefore has no right to reside. The social care team are supporting for now but obviously we need to sort this. ESA is still in payment (but to make matters worse, we are full service UC so if she needs to claim HB this will scupper everything so need to sort this) .

My questions are two fold : if there is no contact with her family (or better to say no support) does this end right to reside on this basis? She is of course still a family member but not dependant possibly?

The lady herself did some work in 2007, 08 and 09 again just a few months here and there but as far as I know, no registration certificate.  She started college in 2009 and then left (not sure how long) and then went to college again in 2013. This is when she became ill and left her course and was hospitalised thereafter.  I was considering using temporary incapacity rules, but I think the gap between her last working and becoming ill is too great (2009 or 2010 possibly last worked, ill in 2013). She would have been dependant under the age of 21 but Dad wasn’t always a worker at this time. The only other thing I have to hang this on is student? but she wouldn’t have health insurance.

im sure I have missed something but any other ideas would be great - thank you (sorry for long post)

     
alang
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Paisley South HA

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Total Posts: 31

Joined: 9 February 2015

Hi,

Bit of a minefield this one. I think a three year gap between working and falling ill could be fatal to retaining worker status as temp unable to work due to ill health.

The family member angle might be worthwhile pursuing, the family member does not have to be resident with the claimant for there to be dependency. Do they give any support (i.e. attend appointments, go round to check on them, buy their shopping, prepare food, prompt etc.)???

As she is currently on ESA on this basis, as long as she remains on ESA this is unlikely to be questioned but technically if the support has stopped RTR on this basis has stopped. As she is over 21 she is no longer considered as a family member unless she is dependent.

CPAG benefits for migrants handbook pg 166-167 gives a good guide on this. Basically dependence is covered by 3 areas.
1. They receive the support
2. The support is material though not necessarily financial
3. contributes to the basic necessities of life.
There may still be ways to argue this if there is any form of support.

Its always a tricky one though, I’ve got one that was accepted on these grounds a few years ago for ESA. Now claiming pension credit and been refused and going through an appeal (even provided PC with a copy of ESA decision notice on RTR).

Other than that I am struggling to see an avenue, but maybe missing something

Good Luck

Alan

      [ Edited: 12 Oct 2017 at 08:41 am by alang ]
dizzymare
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welfare benefits adviser, dudley mbc

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Total Posts: 114

Joined: 18 June 2010

Thank you. Unfortunately, there is no relationship at present so technically not receiving support.  still trying to gather some more evidence from Dad (who is known to us too) and we have now found out that she did some work before she became ill so are trying to get some information in regard to this too. Thank you for your help. Hope your case has a good outcome