UC Right to reside

Good morning,

I’m currently working with a Belgian national who has been living in the UK for 25 years. She is married to a UK national but they are not living together. She has tried claiming UC twice with no joy as UC are stating that she does not have right to reside. She had to claim UC to claim housing costs. She was receiving IRESA previously as a single person.

She has worked but not for many years and not for the 5 continuous years needed. She was claiming carers allowance for her husband and was part of his ESA claim before they separated and she claimed ESA herself. We have asked ESA for the habitual residence decision they made when she claimed as a single person but they have advised that they did not need to make a decision as this was already done when they were claiming ESA jointly? They have also said that they have closed the ESA claim and cannot help any further.

This tenant is now not receiving any benefits apart from PIP and no help with her rent. Can someone please advise what I can do to help her?

Many thanks

i’d start with some immigration advice

I am a long way from an expert on right to reside! But if she’s been here 25 years I think it’s definitely worth exploring whether she has a permanent right to reside. As the thread here - https://www.rightsnet.org.uk/forums/viewthread/13871/ - points out you can establish it with an intermittent work history so I think it’s definitely worth putting together a history of what she has been doing over the time. If you have the CPAG handbook pg 1585 lists what can count as residing legally for the purposes of establishing a permanent right to reside.

And in the meantime go for a mandatory reconsideration and then appeal of the UC decision.

Others may have fuller advice…

That she has been here 25 years unfortunately does not mean anything by itself. You could look at the intermittent work and see if you could piece together 5 years as a qualified person, but also has she been continuously on a relevant benefit since before 2004? If so she would be exempt from right to reside rules on hab res - even though partner on ESA IB, whose name was the HB in? If she had been a claimant (not partner) of claim for HB, CTB, ESA, IS , JSA continually since prior to 2004 then she would be transitionally protected from this test, otherwise will be tricky and complicated. Also might be worth looking at whose claim the joint ESA claim was - is it possible it was her claim with him as partner ? if so and that goes to 2004 she may have her continuous link. either way keep the MR /appeal going while you get more data - might be worth doing a subject access request for claims history rather than asking DWP to produce the info…. ..https://www.gov.uk/guidance/request-your-personal-information-from-the-department-for-work-and-pensions
hope that helps

Claire suggests this lady take immigration advice. That may not be a bad idea as it is possible that her lengthy residence here and relationship with a British national give her some prospect of an application for some sort of domestic leave. However, that is not an immediate solution and any leave granted would not be retrospective - so for the moment we are left with the question of whether she qualifies for benefits on the existing facts.

As Daphne points out, if she can show a continuous five year period in which she had a right to reside, then she is a permanent resident. That can include work - but it is not necessary for her to show five years of continuous work. Gaps in work and other situations can also count towards the five years depending on the facts. You would need to know the full facts.

There is also a question of whether she has become “permanently incapable” of work. An individual who stops working altogether due to permanent incapacity can obtain a permanent right to reside if either they were lawfully living in the UK for 2 years prior to becoming incapable or (sometimes) if its the result of an industrial accident. Possibly her history might allow her to rely on this provision.

Another relevant question is whether she obtains a right of residence through her marriage. A relationship with a British national would not normally result in any EU law status - however if the couple ever spent any time living together in another EU state, then it is possible that on his return to the UK, he was entitled to be treated as an EU national on a Surinder Singh basis which may well mean your client has a right to reside now despite the separation. It’s probably worth asking. 

As to the previous right to reside decision on ESA, I think this is a bit of a red herring as it won’t do her any good on the UC claim.

I agree with Daphne that putting in an MR and then appeal is a good idea. You’ve said that she has claimed twice - putting in repeated new claims isn’t likely to change anything unless her facts change. She’ll need to progress a dispute for this to go anywhere.

phewitt15 - 07 January 2019 02:22 PM

That she has been here 25 years unfortunately does not mean anything by itself. You could look at the intermittent work and see if you could piece together 5 years as a qualified person, but also has she been continuously on a relevant benefit since before 2004? If so she would be exempt from right to reside rules on hab res - even though partner on ESA IB, whose name was the HB in? If she had been a claimant (not partner) of claim for HB, CTB, ESA, IS , JSA continually since prior to 2004 then she would be transitionally protected from this test, otherwise will be tricky and complicated. Also might be worth looking at whose claim the joint ESA claim was - is it possible it was her claim with him as partner ? if so and that goes to 2004 she may have her continuous link. either way keep the MR /appeal going while you get more data - might be worth doing a subject access request for claims history rather than asking DWP to produce the info…. ..https://www.gov.uk/guidance/request-your-personal-information-from-the-department-for-work-and-pensions
hope that helps

Unfortunately the transitional protection does not apply to Universal Credit so even if she has been on benefit since 2004, she would still need to meet RTR.

sorry, missed that it’s UC claim - why did the single claim for ESA end ?  Best Wishes

the fact that she’s still married to her british citizen husband might be relevant, as might be the question of any children and how old they are

but really, immigration solicitor has to be the first port of call

I would agree with all the above: you need a full employment/activity history since arrival in the UK and immigration advice once you have it.

Clearly she will not be able to afford immigration advice so if you have no free provider locally you might want to try the AIRE Centre:

http://www.airecentre.org/