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Partner of an EEA national, but not a family member; residence query
Can you help me with this conundrum? My client, a self-employed EEA national, in UK since 2001, would like to make a new claim for UC. He has a partner (not spouse or civil partner), and they have a child 10 yo, in education. Partner, who has been in UK since 2009, never worked in UK and has substantial health problems.
If my client makes a claim for UC, how would his partner be treated?
Short answer is they would probably be able to get an extended family member residence card, but we need to know a bit more: what is the partner’s nationality, does s/he have leave to enter/remain in the UK and if so for how long and what conditions?
Thanks Anorak.
Partner is Polish, no ILR.
In that case, even though we are supposed to be cautious about straying into the realm of immigration advice, I think it is safe to say there will be no adverse consequences for the partner whatsoever if the s/e person claims UC. What will happen, however, is that UC will be assessed at the single person rate unless the partner gets herself a residence card. What with the uncertainty around Brexit, I would say that’s not a bad idea anyway.
derived right to reside as primary carer of an eea worker’s child in education
derived right to reside as primary carer of an eea worker’s child in education
Self employed - no good until the derivative R2R case law catches up with Florae Gusa
derived right to reside as primary carer of an eea worker’s child in education
My client’s partner was never a ‘worker’ in the UK, although the client himself was, and is- but as a company director, which is seen as self-employment by UC, as I understand.
For any EU citizen, if they’ve been here for at least five years, and have a passport (and £65), they can apply for settled status (=ILR) from today.
For any EU citizen, if they’ve been here for at least five years, and have a passport (and £65), they can apply for settled status (=ILR) from today.
Great call Timothy. Would that resolve any UC residency query?
I think we ought to be rather more circumspect when it comes to settled status applications. Firstly because (unless you are OISC registered or a CAB adviser) you could be committing a crime by advising on them - https://www.freemovement.org.uk/advising-eu-citizens-on-their-settlement-rights-may-be-illegal-warns-regulator/ and secondly because it is far from clear that they will have the effect of automatically giving a right to claim benefit when they would not have qualified for it under the old law.
There have been a large number of position statements by the UK government on post-Brexit benefit rights and they have pretty much all been to the effect that it will be “business as usual”. That is the approach which the draft withdrawal agreement also takes. Whilst on the face of it, the settled status scheme grants “no strings attached” ILR, it is early days and it would be trivial for amendments to be made to avoid that result.
There certainly would be a degree of irony if the lasting legacy of Brexit is to give generations of EEA nationals a right to claim benefits which they did not otherwise have.
Does he work under the direction of another person? If so he could be a worker
Did your client previously have a job here at the same time as the child was here?
Get married?
Does he work under the direction of another person? If so he could be a worker
Did your client previously have a job here at the same time as the child was here?
Get married?
No, he does not work under a direction of another person. It’s a one man band; limited company of which he is a director who performs services (building, electrical installations), so IR35 Intermediary.
Never married to the partner, never worked as an employee.
Elliot is right, we do need to be very, very careful so I am going to focus on advising on UC entitlement rather than applications for settled status, but I am quietly looking at a “durable partner” definition….
Problem with durable partner as extended family member is that a residence doc is compulsory in order to have that status. This is why the best piece of advice for EEA couples was always “get married”. With no residence doc and no economic history of her own, the partner will be left off the UC maximum amount. So she needs to apply for something, whether it’s the free extended family residence card or the £65 settled status ILR. For the next couple of months at least she can do either but if all goes according to plan the family member card will no longer be available after 29 March.
Meanwhile he ought to crack on and claim UC anyway as single rate is better than nothing at all. It can be increased later when she has a positive right of residence.
Many thanks everyone, very helpful
Apparently the £65 fee for settlement has been axed
I think we ought to be rather more circumspect when it comes to settled status applications. Firstly because (unless you are OISC registered or a CAB adviser) you could be committing a crime by advising on them - https://www.freemovement.org.uk/advising-eu-citizens-on-their-settlement-rights-may-be-illegal-warns-regulator/ and secondly because it is far from clear that they will have the effect of automatically giving a right to claim benefit when they would not have qualified for it under the old law.
To answer the first concern; the question was asked by a CAB advisor, so the OISC requirement is met. But yes, we do need to be careful not to go too far. In my case, I will bring the settled status scheme to the attention of relevant clients, give them links to websites, and send them around the corner to the CAB to find out more.
To answer the second concern; settled status under Appendix EU of the Immigration Rules is ILR. My reading of the requirements within the benefits regulations is that they are about having a right of residence - any right will do. If you don’t have one, or the only one you have is one of the restricted ones, e.g. Zambrano, ILR with a maintenance undertaking, etc. then you have a problem, but otherwise you are okay.
I can understand being cautious about this government appearing to have done something generous (if it looks too good to be true…). But the whole point of the settled status scheme is to give a different form of permanent residence to replace the right under Directive 2004/38/EC. The government has acknowledged that it is more generous than the requirement in Art 16 of the Directive, and I think the explanation for this, seemingly unlikely, generosity is twofold: pragmatism - they don’t want to have to look at 3 million cases in too much detail and they don’t want a mass exodus, and; politics - they had to come up with something that wouldn’t upset the EU too much.