Transfer from IS and requirement for Habitual Residence Test

Hi guys

I’m looking for some assistance as having problems with a client migrating to Full Service UC from IS.

Story is: Client is a Polish National, single parent. Child has turned 5 so she is no longer able to claim IS and has been migrated to UC. Client came to the UK in 2006 and was found to have Permanent Residency in the UK by an IS Decision Maker when she made her claim in 2016. She has never left the country.

UC have asked her to attend a Hab Residence interview as they state that they have to make a new decision. They are not accepting the IS decision “because it’s old” and have now refused and Advance Payment because of this!!!

Am I missing something? I haven’t seen anything which would render her IS decision invalid for UC and can’t find anything in the regs which would state that UC have to do this all over again.

Peter

My understanding is that once you acquire a permanent right to reside you only lose it if you are absent from the UK for more than 2 consecutive years or on the grounds of public policy, security or health. I can’t see anything in UC that alters this. Sigh… another pointless MR and probable subsequent appeal!

On the bald facts stated, this is bordering on misfeasance in public office (a tort, or civil wrong, and, in certain cases-albeit rare- a criminal offence).  As Chrissum states permanent residence can only be lost in specific circumstances.  As well as lodging the MR/appeal I would write to them informing them that if they didn’t come up with one shred of evidence as to why her permanent rtr is lost they’d be facing a claim for damages in the county court: more as a tactic to force them onto the back foot.

We’ve dealt with similar enquiry this week, Cypriot client who has been in country since early 90’s, worked and then claimed JSA/ESA until reaching retirement age, claims PC and they refused claim on basis of no right to reside established. It’s such deliberately bad decision making and such a waste of time and resources to challenge.

My case load is littered with these types of decisions. I’ve got one that clearly lists in their decision the client(an EEA national)‘s employment history as being nearly 6 years continuous employment with a reputable employer and then in the next paragraph states that she has not evidenced that she has the right to reside as a qualified person. They also list her recent history as an ESA or JSA claimant so someone must have accepted her R2R at some stage. She has been GPOW’ed for JSA and failed the R2R for ESA, so two appeals for the price of one. The worrying thing is that these decisions inevitably come from the DWP’s EU team in Aberdeen so their own experts!

Oh the nonsense I’ve had with the EU team over the years is a joy to behold; complete misunderstandings of ECJ jurisprudence, guidance to DM’s that they’ve later had to withdraw when their misunderstanding of ECJ jurisprudence has been pointed out to them, failure to then properly inform all relevant departments of withdrawn guidance, etc, etc: ad infinitum, ad nauseam.  It’s completely pathetic.  Your average 12 year old could do better!