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Forum Home  →  Discussion  →  Residence issues  →  Thread

British spouse of EU worker and habitual residency requirement

Charles
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I have a couple recently moved to the UK. She is British and he is an EU citizen, and working. They have claimed UC, and were scheduled separate HRT appointments.

She had hers first, and was turned down. His is going to be this week, and we hope they’ll accept his status as a worker without a problem, in which case there won’t be an issue with habitual residency for him.

If that happens, can we ask them to revise the decision about her on the grounds that she is the spouse of an EU worker, or does that not apply to a British citizen?

Dan Manville
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If she’s exercised treaty rights in her own right then she’s an EU citizen irrespective of her nationality.

She’s a family member of an EU worker if she’s moved from another EU country other then Eire.

Yes they should revise their HRT decision.

Charles
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Unfortunately, they’ve moved here from outside the EU.

Elliot Kent
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The argument is that if he is an EEA worker, and she is his family member, then she has a right to reside on that basis, irrespective of whether she also has a right to reside on the basis of her British nationality and she wishes to rely on the former in this situation to get out of needing to prove habitual residence in fact as per reg 9(4).

I think it works. The EEA Regulations don’t define family member in terms which are exclusive of British nationals, so I think that if nothing else, you succeed under the terms of the national law regs. I don’t see why it isn’t open to your client to rely on whichever set of rights is most favourable to her.

HB Anorak
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That’s ingenious, but I would expect DWP to argue that the principles established in the Shirley Mcarthy case extend to this reverse situation: given that the British spouse has an unconditional right to enter the member state of which she is a citizen, it is unnecessary for her EU husband to resort to the Directive to have her accompany him here.

Charles
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HB Anorak - 16 September 2019 11:47 AM

That’s ingenious, but I would expect DWP to argue that the principles established in the Shirley Mcarthy case extend to this reverse situation: given that the British spouse has an unconditional right to enter the member state of which she is a citizen, it is unnecessary for her EU husband to resort to the Directive to have her accompany him here.

I thought of this, but as far as I can see, the UC Regs’ definition of a family member is not dependent on the Directive?

HB Anorak
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Charles - 16 September 2019 12:20 PM
HB Anorak - 16 September 2019 11:47 AM

That’s ingenious, but I would expect DWP to argue that the principles established in the Shirley Mcarthy case extend to this reverse situation: given that the British spouse has an unconditional right to enter the member state of which she is a citizen, it is unnecessary for her EU husband to resort to the Directive to have her accompany him here.

I thought of this, but as far as I can see, the UC Regs’ definition of a family member is not dependent on the Directive?

Because it only refers to the national legislation that transposes the Directive?  Actually, I suppose McCarthy could equally be relied on to support the claimant.  There was a loophole in the previous Immigration (EEA) Regs in that a UK citizen was not excluded from the definition of EEA national.  Mrs McCarthy herself was unable to rely on that as she had never actually been economically active or self sufficient.  The definition was amended to close that loophole.  But no similar amendment has ever been made to the definition of family member, therefore even if the McCarthy principle extends to UK citizens who are family members under EU law, there remains a loophole in the UK national legislation.

If national legislation had to be interpreted restrictively in accordance with case law on the parent EU legislation, the post-McCarthy amendment of the I(EEA) Regs 2006 would have been otiose and we must always assume that legislation is enacted for a purpose.

I think I’m convinced now

Abi Sheridan
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My thinking is that the foundations of Freedom of Movement are to allow a EU citizen (husband) to move freely within the EU and set up life there…including having family members, as that is their right to family life. Its therefore irrelevant what nationality she is, as he is exercising his treaty rights. If he passes the HRT, she should be home and dry.

My concern is why she failed the HRT? She should automatically pass the right to reside, so has she failed as no “habitually resident in fact”? If thats the case, he might fail on this ground too? Unless I’m missing something all together and she has failed the right to reside, which would throw a spanner into my brains understanding of the HRT… (say it aint so!)

Elliot Kent
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Abi Sheridan - 16 September 2019 02:16 PM

My thinking is that the foundations of Freedom of Movement are to allow a EU citizen (husband) to move freely within the EU and set up life there…including having family members, as that is their right to family life. Its therefore irrelevant what nationality she is, as he is exercising his treaty rights. If he passes the HRT, she should be home and dry.

My concern is why she failed the HRT? She should automatically pass the right to reside, so has she failed as no “habitually resident in fact”? If thats the case, he might fail on this ground too? Unless I’m missing something all together and she has failed the right to reside, which would throw a spanner into my brains understanding of the HRT… (say it aint so!)

EU workers and their family members have exemption from the need to show they are habitually resident in fact under reg 9(4) UC Regs, whereas British citizens don’t. So in Charles case, the DWP have accepted that she has a right of residence as a result of her nationality, but have gone on to find that she is not habitually resident as a new arrival. They might be right or wrong about that on the facts, but Charles is trying to argue she is exempt from the factual part of the test entirely as a consequence of her parallel rights as a worker’s family member.

 

Abi Sheridan
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Elliot Kent - 16 September 2019 02:22 PM
Abi Sheridan - 16 September 2019 02:16 PM

My thinking is that the foundations of Freedom of Movement are to allow a EU citizen (husband) to move freely within the EU and set up life there…including having family members, as that is their right to family life. Its therefore irrelevant what nationality she is, as he is exercising his treaty rights. If he passes the HRT, she should be home and dry.

My concern is why she failed the HRT? She should automatically pass the right to reside, so has she failed as no “habitually resident in fact”? If thats the case, he might fail on this ground too? Unless I’m missing something all together and she has failed the right to reside, which would throw a spanner into my brains understanding of the HRT… (say it aint so!)

EU workers and their family members have exemption from the need to show they are habitually resident in fact under reg 9(4) UC Regs, whereas British citizens don’t. So in Charles case, the DWP have accepted that she has a right of residence as a result of her nationality, but have gone on to find that she is not habitually resident as a new arrival. They might be right or wrong about that on the facts, but Charles is trying to argue she is exempt from the factual part of the test entirely as a consequence of her parallel rights as a worker’s family member.

 

Aha, thanks Elliot! That makes a lot of sense - I’d missed a step of the Qualifying Person exemption from the test, which I agree should solve the problem.
In which case, I’d say theres no reason (legally, not necessarily JCP logic!) he would fail the HRT, and then she should be able to easily overturn her HRT at MR. Agreed?

Charles
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Elliot Kent - 16 September 2019 02:22 PM

EU workers and their family members have exemption from the need to show they are habitually resident in fact under reg 9(4) UC Regs, whereas British citizens don’t. So in Charles case, the DWP have accepted that she has a right of residence as a result of her nationality, but have gone on to find that she is not habitually resident as a new arrival. They might be right or wrong about that on the facts, but Charles is trying to argue she is exempt from the factual part of the test entirely as a consequence of her parallel rights as a worker’s family member.

Precisely. We are prepared to argue the factual decision on its merits, but wondered if we’d even need that if the spouse is a worker.

As an aside, in her interview, our client attempted to provide various documentation to support her claim to be habitually resident in fact, and the interviewer simply refused to take any of it. They had their list of questions which they wanted answers to (dates in and out etc), but weren’t interested in anything else.

Thanks everyone for the help.