Partner of EEA national - refused universal credit?

I have a couple with children who I assisted to claim Universal Credit.  He is a Spanish national and his wife has Pakistani nationality, they are married.  UC have said the she has failed the HRT as ‘she does not currently have a residence permit from the Home Office.  As a partner of an EEA resident and worker a residence permit is required.’

Is this right?  I was under the impression that the stamp on her passport stating she is an EEA family member would be enough?

No it’s not right.  The spouse of an EEA national is joined at the hip and doesn’t require any documents: if he has a right to reside, so does she.  If he does not, it’s unlikely she has either.  You would not normally expect a different conclusion about each of them.

thanks I thought as much - I was trying to find something in the guidance/regs I could put on the journal in response, do you know where I could find this?

It sounds like they are confusing partner and spouse
a partner would need a residence document, but that is due to being an ‘extended family member’
the spouse has the same right to reside as the person they are married/civil partner to, this continues if separated but not yet divorced

Yes, two places:

1. Directive 2004/38/EC

Article 2.2 - definition of “family member” includes “spouse”
Article 7.1(d) - family member has right to reside if joining or accompanying an EU citizen who has a right to reside as a worker etc
Article 25.1 - residence docs are not compulsory, including for family members

2.  Immigration (EEA) Regs 2016, which transpose the Directive into UK national law

Reg 14(2): “family member” has right to reside alongside a “qualified person”
Regs 6 and 7:  definitions of the above.  Family member includes spouse.  Nothing about compulsory residence docs

from advice for decision makers:

Family Members of Workers and Self-employed persons
C1596 Family members (see paragraph C1597) of EEA nationals who are workers or selfemployed persons have the same rights of residence as those persons and are
entitled to reside in the UK for as long as they remain family members1
. This
includes the family members of EEA nationals who retain worker status (see
paragraph C1391 & C1393) or retain the status of self-employed person (see
paragraph C1475).
1 Imm (EEA) Regs 2016, reg 14(1) & (2)
Meaning of “Family Member”
C1597 The following are family members
1.  a spouse (husband or wife) or civil partner1
;
2. direct descendants of the EEA national, or of the EEA national’s spouse or
civil partner, who are2
2.1 under the age of 21 or
2.2 dependants of the EEA national or the EEA national’s spouse or civil
partner
3. dependent direct ascendant relatives of the EEA national, the EEA national’s
spouse or civil partner3

that’s great thanks!

If you want to refer to the caselaw of the Court of Justice then this makes clear that rights of residence in EU law (other than for extended family members) exist because a person fulfils the conditions and not because they have a residence document- it is said that the residence document is “declaratory” and not “constitutive” of the right of residence. The case law is as follows:

1. In Case C-357/89 Raulin v Minister van Onderwijs en Wetenschappen [1992] ECR I-1027 it was said:

“35 By the second part of its sixth question the national court wishes to know whether that right of residence can be exercised whether or not a residence permit has been issued.

36 In this respect the Court has consistently held that a residence permit is a document serving to prove the individual position of a national of another Member State with regard to provisions of Community law. However, the issue of such a permit does not create the rights guaranteed by Community law and the lack of a permit cannot affect the exercise of those rights (see in particular the judgments in Case 48/75 Royer [1976] ECR 497, paragraph 33, and in Joined Cases 389/87 and 390/87 Echternach and Moritz v Minister van Onderwijs en Wetenschappen [1989] ECR 723, paragraph 25).

2. Similarly, in the Royer case (referenced in the extract from Raulin above) the ECJ held:

31 ( A ) IT FOLLOWS FROM THE FOREGOING THAT THE RIGHT OF NATIONALS OF A MEMBER STATE TO ENTER THE TERRITORY OF ANOTHER MEMBER STATE AND RESIDE THERE FOR THE PURPOSES INTENDED BY THE TREATY - IN PARTICULAR TO LOOK FOR OR PURSUE AN OCCUPATION OR ACTIVITIES AS EMPLOYED OR SELF-EMPLOYED PERSONS , OR TO REJOIN THEIR SPOUSE OR FAMILY - IS A RIGHT CONFERRED DIRECTLY BY THE TREATY , OR , AS THE CASE MAY BE , BY THE PROVISIONS ADOPTED FOR ITS IMPLEMENTATION .

32 IT MUST THEREFORE BE CONCLUDED THAT THIS RIGHT IS ACQUIRED INDEPENDENTLY OF THE ISSUE OF A RESIDENCE PERMIT BY THE COMPETENT AUTHORITY OF A MEMBER STATE .

33 THE GRANT OF THIS PERMIT IS THEREFORE TO BE REGARDED NOT AS A MEASURE GIVING RISE TO RIGHTS BUT AS A MEASURE BY A MEMBER STATE SERVING TO PROVE THE INDIVIDUAL POSITION OF A NATIONAL OF ANOTHER MEMBER STATE WITH REGARD TO PROVISIONS OF COMMUNITY LAW .

3. In Echternach and Moritz the ECJ commented similarly:

24 The third group of questions concerns the problem whether the rights of a member of the family of a worker of a Member State employed in another Member State may be made subject to the grant of a residence permit which, in accordance with the rules of national law in force, is issued for a certain period .

25 In that regard, it should be pointed out that the right of nationals of a Member State to enter the territory of another Member State and reside there for the purpose of seeking or pursuing an occupation or rejoining their spouses or families is a right conferred directly by the Treaty or by the provisions adopted for its implementation. As proof of the right of residence, a special residence permit is to be issued in accordance with Article 4 of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families ( Official Journal, English Special Edition 1968 ( II ), p . 485 ). However, the issue of such a permit does not create the rights guaranteed by Community law, and the lack of a permit cannot affect the exercise of those rights .

26 The answer to the third group of preliminary questions should therefore be that the enjoyment of the rights which a member of the family of a worker of a Member State derives from the provisions of Community law may not be made subject to the grant of a residence permit which meets certain conditions .

Martin

Thanks Martin - that’s definitely useful to have.