Right to Reside Client in UK since 2001

I was wondering if anyone has advice or ideas…my client came to the UK from the Netherlands in 2001.  She is a Dutch National but originally came from Somalia in1991.  She had two children when she came to the UK and has had four other born here. She claimed Income Support successfully when she first came to the UK.  Her husband joined her around 2003/04 and when he arrived he claimed Jobseekers Allowance.  However three of the children have a disability and get DLA .Her husband came off the JSA and started claiming Income Support on the basis of being a carer.  My client also claimed Carer’s Allowance for one of the children.  Neither my client or her husband have ever worked in the UK.

In February 2011 my clients husband left her and she made a claim for Income Support which has been turned down because “she is a person from abroad”.  She will have difficulty claiming Jobseekers Allowance, although not impossible, as she has to attend her children’s schools to give them injections at 12 pm every day and she has a young baby too.

Any advice welcome as I can’t think of any right to reside law/cases that may help .  As far as I understand she cannot get transitional protection as her husband became the claimant not her.  This was also the case for Housing Benefit.  They have children in school but neither parent has ever worked in the UK.

Thanks…

Hope this helps- I used this in a recent successful submission on the same issue!

According to recent case law cited as [2010] EUECJ C-162/09 it was held that EEA nationals who are legally in the UK under EEA provisions for over 5 years have a right to permanently reside in the UK, and therefore the ‘ right to reside’ and ‘habitual residency’ tests do not apply. The judgment provides a clear and concise summary of the relevant law. The case was referred to the European Court to clarify UK law. The first question referred to the Court was whether;

“…for the purposes of acquiring the right of permanent residence provided for in Art 16 of the Directive 2004/38, continuous periods of five years’ residence completed before 30 April 2006, the date for transposition of that directive, in accordance with earlier EU law instruments, must be taken into account.”

The second question deals with temporary absences and their effect.

The Court replied that the purpose of EU legislation was to confer rights of movement and freedom to reside throughout the European Union. UK law has to reflect the EU directives. The right to acquire permanent residence in another Member State is crucial to the integration of the citizen in the host Member State.

“…38     Furthermore, it should be noted that, in so far as the right of permanent residence provided for in Article 16 of Directive 2004/38 may only be acquired from 30 April 2006, the taking into account of periods of residence completed before that date does not give retroactive effect to Article 16 of Directive 2004/38, but simply gives present effect to situations which arose before the date of transposition of that directive.
39     It should be borne in mind in that regard that the provisions on citizenship of the Union are applicable as soon as they enter into force and therefore they must be applied to the present effects of situations arising previously (see Case C-224/98 D’Hoop [2002] ECR I-6191, paragraph 25 and the case-law cited).
40   Consequently, for the purposes of the acquisition of the right of permanent residence provided for in Article 16 of Directive 2004/38, continuous periods of five years’ residence completed before the date of transposition of that directive, namely 30 April 2006, in accordance with the earlier EU law instruments, must be taken into account.”

( to clarify -Permanent residence is acquied under Art 16 2004/38 directive- I know DWP try and argue that the directive is effective only since 30/4/06 - but that would mean no one has yet acquired residency on this basis until end of this month!- above case confirms the correct and sensible approach that 5 years pre 2006 can be used so depending exactly when your client arrived in 2005 she will now be/soon to be permanent resident. (Maybe try a new claim if there is a problem??)

or…

is she a qualified person- reg 14(1) Immigration (EEA) regs 2006
per reg 6(1) this is defined as worker/jobseeker- if client signs on as jobseeker she has a right to reside - part time work is acceptable (or could use lunch time to assist child care issues)

family members may be able to claim right to reside through the head of the family where relevant (these are stated further in same regs.)
if client still needs to satisfy habitual reidence test - rather than having an actual right to reside- you will need to show -length and continuity of residence/future intentions/employment prospects/reasosn for coming to UK/centre of interest

temporary absences abroad may be relevant especially if for extended periods

Hope this helps!
Lid26

Thanks for your help.  Unfortunately client’s husband only claimed JSA for 2 years from 2004-2006 before claiming Income Support as a carer.  Client has told me today that she has been called in for another appointment at Jobcentre on 27/4/11 and asked for all her documents again.  Not sure what that is about yet as she says she has not made any other claim and the appeal request has not gone in yet.  She arrived in the UK in 2001.

GCOLE - 19 April 2011 12:53 PM

Client has told me today that she has been called in for another appointment at Jobcentre on 27/4/11 and asked for all her documents again.  Not sure what that is about yet as she says she has not made any other claim and the appeal request has not gone in yet.  She arrived in the UK in 2001.

She has been called back probably because JC+ now realise she may have a permanent right of residency based on the 3 years she was entitled to I/S and the 2 years the partner was entitled to JSA!! Does that time line match up as Lid26 explained above?

Dan Manville - 20 April 2011 10:32 AM

Did she have a R2R during the first period of IS entitlement? It was pre 2004 hence it wasn’t a requisite for IS entitlement.

Yes, but she must have had some form of “leave”, under previous I/S regs, for her to be entitled. Without knowing specifics I can’t tell if this can be added onto the 2 years the partner was entitled to JSA.