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Period receiving carer’s allowance and R2R
I’m hoping there’s something I’ve missed and this will be a quick query…..
Does anyone know if a period where a claimant received Carer’s Allowance can be counted towards the 5 years required for gaining permanent right to reside?
Thanks.
Mairi
Not of itself no.
We have to remember that rights to reside and entitlement to welfare benefits are not the same thing.
It is possible for instance that your client was in part time work whilst getting carers allowance; which might mean that they were a “worker” for this period.
Or your client may have been caring for a dependent grown-up son who had a right to reside in their own right - which could give rise to a right to reside as a family member.
Or your client may have been caring for their disabled, pre-school age child, having abandoned work in order to do so - in which case they would appear not to have a right to reside.
Your client may well have settled status which could resolve the whole issue and they may need to consider applying for it if not.
[ Edited: 17 Dec 2019 at 03:18 pm by Elliot Kent ]Thanks for the speedy response Elliot. I think scenario 3 looked closer to my case when I posted this although I’m now hoping my client was also working part-time during this period.
He’s already started the application process for settled status but that doesn’t help (particularly as he said he’d applied for it months ago).
Sorry, jumping on this thread. A bit fuzzy after the festive break :) Client is Albanian and is married to an Albanian who has been in the UK since age 4. He has a UK passport. They have 2 children both born in the UK. Client has a spousal visa with No Public Funds. Her CA has been refused for caring for her husband. CA are stating that she has limited leave so cannot claim benefits but doesn’t she have an exception to No Public Funds as a family member of an EEA National? BUT her husband is sick and receives UC & PIP so no worker status, self-emp status etc…
Can this help though and remove any need for being a family member of a “qualified person”:
The Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000
No. 636SCHEDULEPART II: Persons not excluded under section 115 of the Immigration and Asylum Act from entitlement to attendance allowance, severe disablement allowance, invalid care allowance, disability living allowance a social fund payment or child benefit
1. A member of a family of a national of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993(1).
Advice would be welcome as always.
[ Edited: 7 Jan 2020 at 01:34 pm by JojoMitchell ]Sorry, jumping on this thread. A bit fuzzy after the festive break :) Client is Albanian and is married to an Albanian who has been in the UK since age 4. He has a UK passport. They have 2 children both born in the UK. Client has a spousal visa with No Public Funds. Her CA has been refused for caring for her husband. CA are stating that she has limited leave so cannot claim benefits but doesn’t she have an exception to No Public Funds as a family member of an EEA National? BUT her husband is sick and receives UC & PIP so no worker status, self-emp status etc…..Advice would be welcome as always.
Unfortunately the EU rules do not apply here, Albania is not part of the EU as of yet, and the her husband can’t be seen as one based on the facts you posted. Saying that, CA only has the habitual residence in fact test, so I can only assume they have got this wrong somehow unless she has not been present in the UK for the relevant period of time, she will need to have been present for 104 out of 156 weeks (2 out of 3 years) before claiming and satisfy the rest of the normal CA conditions.
Sorry, jumping on this thread. A bit fuzzy after the festive break :) Client is Albanian and is married to an Albanian who has been in the UK since age 4. He has a UK passport. They have 2 children both born in the UK. Client has a spousal visa with No Public Funds. Her CA has been refused for caring for her husband. CA are stating that she has limited leave so cannot claim benefits but doesn’t she have an exception to No Public Funds as a family member of an EEA National? BUT her husband is sick and receives UC & PIP so no worker status, self-emp status etc…
Can this help though and remove any need for being a family member of a “qualified person”:
The Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000
No. 636SCHEDULEPART II: Persons not excluded under section 115 of the Immigration and Asylum Act from entitlement to attendance allowance, severe disablement allowance, invalid care allowance, disability living allowance a social fund payment or child benefit
1. A member of a family of a national of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993(1).Advice would be welcome as always.
Albania is not an EEA country?
Albania isn’t currently a member of the EU. As such, your clients are lucky that she wasn’t paid any CA as this would breach the no recourse rules and she could be deported.
Unfortunately the EU rules do not apply here, Albania is not part of the EU as of yet, and the her husband can’t be seen as one based on the facts you posted. Saying that, CA only has the habitual residence in fact test, so I can only assume they have got this wrong somehow unless she has not been present in the UK for the relevant period of time, she will need to have been present for 104 out of 156 weeks (2 out of 3 years) before claiming and satisfy the rest of the normal CA conditions.
But CA is deemed ‘public funds’ so if she’s got leave on the basis of not having recourse to public funds and she’s not in an excepted group, she can’t (and indeed shouldn’t) claim it.
But CA is deemed ‘public funds’ so if she’s got leave on the basis of not having recourse to public funds and she’s not in an excepted group, she can’t (and indeed shouldn’t) claim it.
Ah, yes indeed, missed that didn’t I?
Yes, I am aware of this but was querying whether she is an exception as she is a family member of a British citizen - he was born in Albania but moved here age 4 so was hoping there was some way of him being seen as a British Citizen (I know I am clutching at straws here!!).
This is an area where benefits and immigration are “joined up”: if your immigration status prohibits you from doing something, benefits law tends to stop you from doing it anyway so you cannot inadvertently breach your immigration conditions. That is the case with Carers Allowance: s115 of the Immigration and Asylum Act 1999 says a PSIC is not entitled to it.
I wondered whether JoJo was looking at the British partner as being the EEA national, which is not normally a viable argument (the only exception being the Surinder Singh line of cases and there is no suggestion that they apply in this case). There is also the possibility of a derivative EEA right to reside as a Zambrano carer, but that seems like a non-starter as the British child lives with his British father so his residence in the EU is under no obvious threat. The significance of any right to reside, including a Zambrano one, would be that the claimant does not require leave under national immigration law and would therefore not be a PSIC for the purpose of s115. But I don’t see any promising lines of argument on the facts we have.
PS - seen JoJo’s last comment - ha, I was right! But I don’t think it is going to fly.
Yes I was. But thanks HB Anorak (again 😊 )