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permanent right to reside

 

CAH-Adviser
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Quick question – is this correct.

This is a case where couple were receiving ESA, the other member of the couple is fit for work, but unemployed (they are EU National’s with permanent right to reside, based on the husbands work history).  Claimants had to make a new claim for HB (as previously homeless) so were advised that they have to make a claim for UC.  UC claim made, however, this has been refused based on the claimants not having the right to reside or being habitually resident.  We only recently won an appeal, which said they have a permanent right to reside for ESA purposes.

Under UC Regulations, can a permanent right to reside be ignored? I am aware that an EEA’s cannot acquire the right to reside as a job seeker now under UC- is this a ridiculously silly question? 

Currently, the Universal Credit Regulations state that a person must be present in Great Britain and have a right to reside in the Common Travel Area in order to be entitled to Universal Credit. Any person who does not have such a right to reside is not entitled to receive Universal Credit. Following this amendment, an EEA national entering the UK to
look for work, or who is here already and claims benefit as a jobseeker, will not qualify for Universal Credit.

      [ Edited: 11 Apr 2018 at 02:16 pm by CAH-Adviser ]
nevip
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A permanent right to reside cannot be ignored by a member state.  The EU Directive which gives this right is directly applicable in all member states.  Its scope cannot be restricted by domestic regulation, pure and simple.  To do so would to breach the EU Treaty.

The right to reside as a jobseeker was not covered by the EU Directive.  It was a more generous provision under the domestic immigration regulations than allowed for in the Directive.  That was within the compass of the individual member state.  Thus, it can be easily removed by the relevant member state.

     
past caring
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Whilst some rights of residence may not entitle a person to some benefits - as a jobseeker for HB or UC, for example - a permanent right of residence that is good for one benefit is good for any other.

     
Paul_Treloar_AgeUK
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When you say you won a recent appeal tribunal and it found “they” had established a permanent right to reside, do you mean the ESA claimant has established a PRR and was thus entitled?

If they are not married and the work seeking half of the partnership doesn’t have PRR, would that be why they have problems perhaps?

     
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Paul_Treloar_AgeUK - 11 April 2018 03:00 PM

When you say you won a recent appeal tribunal and it found “they” had established a permanent right to reside, do you mean the ESA claimant has established a PRR and was thus entitled?

If they are not married and the work seeking half of the partnership doesn’t have PRR, would that be why they have problems perhaps?

They are married - We assisted claimants with an appeal against ESA decision (wife lead claimant) and argued that they had a permanent right to reside based on husband’s work history for the last 6 years.  DWP revised the decision in the claimant’s favour Decision: Wife is a family member of an EEA national who has the permanent right to reside, which means she also acquires the permanent right to reside

     
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nevip - 11 April 2018 02:27 PM

A permanent right to reside cannot be ignored by a member state.  The EU Directive which gives this right is directly applicable in all member states.  Its scope cannot be restricted by domestic regulation, pure and simple.  To do so would to breach the EU Treaty.

The right to reside as a jobseeker was not covered by the EU Directive.  It was a more generous provision under the domestic immigration regulations than allowed for in the Directive.  That was within the compass of the individual member state.  Thus, it can be easily removed by the relevant member state.

Thanks Nevip - as i thought!

     
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past caring - 11 April 2018 02:27 PM

Whilst some rights of residence may not entitle a person to some benefits - as a jobseeker for HB or UC, for example - a permanent right of residence that is good for one benefit is good for any other.

Thanks ‘past caring’ this is as i thought!

     
SamW
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A linked question to this…

If somebody attends a tribunal for say ESA and is granted Permanent Right to Reside - is this decision actually binding on subsequent claims for UC (assuming that there is no evidence to suggest that claimant may have lost the PRtR by leaving the country etc)?

I have previously had a client who had won an Income Support RtR tribunal where he had no written evidence of his work and the tribunal had accepted his oral evidence on the cash in hand building work he had been doing. In the end he will be moved to UC and I was wondering if there was any possibility of this becoming an issue again or whether UC would be bound to follow the decision on his Income Support claim.

Similarly, when people have had favorable decisions on right to reside for benefits purposes will these decisions be binding when Brexit eventually happens and people are potentially being required to register with the Home Office and have their ‘residency rights’ approved?

     
Paul_Treloar_AgeUK
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CAH-Adviser - 11 April 2018 03:21 PM

They are married - We assisted claimants with an appeal against ESA decision (wife lead claimant) and argued that they had a permanent right to reside based on husband’s work history for the last 6 years.  DWP revised the decision in the claimant’s favour Decision: Wife is a family member of an EEA national who has the permanent right to reside, which means she also acquires the permanent right to reside

In that case, as others have noted, its the UC DM being a pillock.

SamW - 11 April 2018 04:02 PM

A linked question to this…

If somebody attends a tribunal for say ESA and is granted Permanent Right to Reside - is this decision actually binding on subsequent claims for UC (assuming that there is no evidence to suggest that claimant may have lost the PRtR by leaving the country etc)?

I have previously had a client who had won an Income Support RtR tribunal where he had no written evidence of his work and the tribunal had accepted his oral evidence on the cash in hand building work he had been doing. In the end he will be moved to UC and I was wondering if there was any possibility of this becoming an issue again or whether UC would be bound to follow the decision on his Income Support claim.

Similarly, when people have had favorable decisions on right to reside for benefits purposes will these decisions be binding when Brexit eventually happens and people are potentially being required to register with the Home Office and have their ‘residency rights’ approved?

See p.190 of MIgrant’s Handbook 9th edition, which notes that “Once you have a permanent right of residence, you do not need to satisfy any other condition (eg you do not need to be a worker) and this right of residence satisfies the right to reside requirement for all the benefits that have such a requirement.

You onlu lose your permanent right of residence if you are absent from the UK for more than two consecutive years (or if your residence rights are revoked or cancelled on grounds of public policy, public security or public health).

On what happens post-Brexit, this is the official line at the moment Status of EU citizens in the UK: what you need to know

     
nevip
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If you want to know what happens post-brexit, then I suggest you read Lewis Carroll’s, Alice in Wonderland.

     
WillH
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I’ve seen situations where one benefit has agreed a client has perm r2r (often on the basis that the client has been here for ages, under 21, as a dependent of EU national working parents). So we get a legacy benefit decision agreeing the client has PR, eventually.

Then for whatever reason client has to move to UC (say, on IS as lone parent & youngest child reaches 5), & UC say no r2r, client doesn’t pass HRT etc.

Even had one situation where tax credit appeal won re r2r only for both CB and tax credits to decide that client didn’t have r2r in the following tax year. No change of circumstances & HMRC won’t look at the appeal decision.

So…. as to previous decisions being an authority, it seems we have to demonstrate the grounds for r2r all over again in practice. I suppose r2r could have been lost in the meantime, but not in the case of PR as there haven’t been 2 years in between!