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Entitlement to benefits as family members of EEA nationals

Rachel1
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North East Law Centre, Newcastle upon Tyne

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Hi there, I just wanted to run this by someone:

My client is from Nepal and her husband is Polish.  They live in the UK and her residence is based on her being a family member of an EEA national.  She has been here for nearly 5 years and is doing a 3 year diploma and has not worked in this country (apart from placement work in her course).  They have a 5 year old son who is a Polish national as well.

her husband has asked for a divorce.  Official proceedings have not yet started.

She wants to know if she can claim benefits. I will be telling her that she would need to provide proof that she is separated but I wanted to check that the general consensus is (and to see if I’ve understood right!) that:  Yes she can make a claim for Universal credit depending on some things (I have requested this information but she has not responded yet)

This is because she could still classed as a family member of an EEA national.  Page 200 of CPAG benefits for migrants book states that you retain your right to reside if her husband had permanent right to reside and you have have custody of the qualified person’s child.

Am I also right in thinking that I would need to advise on the habitual residence test and whether or not she would be able to get genuine and effective work, which may determine whether or not she will actually be successful in the application?

I’m waiting on several pieces of information so apologies if I have not provided enough information - this is all I have at the moment

Thank you in advance.

Elliot Kent
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What has the husband been doing all this time?

Martin Williams
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Until the divorce comes through she can simply rely on still being his family member - if he works then she has a right to reside.

Rachel1
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North East Law Centre, Newcastle upon Tyne

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Elliot Kent - 23 June 2020 02:06 PM

What has the husband been doing all this time?

He has been working full time on good money.
I have also received more information if any of this helps:
Her course is full time
It doesn’t seem like he has a permanent right to reside as he has been here the same amount of time him - just under 5 years.
The only benefit they claim as a family is child benefit
They are still living together due to Covid-19 situation - but she would also have no where to go either. It seems there has been financial abuse gong on and he is with holding money.

All of this tells me that unfortunately she is not able to claim benefits unless she changes her own status.  Or is there something I am missing?

Elliot Kent
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No - see Martin’s post above. She can get benefit.

She has a right to reside as the spouse of an EEA worker, it is irrelevant that the husband intends to divorce her, they are still spouses in law.
Her own situation is not important because she is relying on his EEA rights.

As he has been working throughout, if they can stay married for 5 years total, then that will give her permanent residence. She should be applying to EUSS anyway.

Rachel1
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Martin Williams - 23 June 2020 02:26 PM

Until the divorce comes through she can simply rely on still being his family member - if he works then she has a right to reside.

Ah brill, that will have to do for now.  Of course as stated above, there may well be issues of proving a separation has taken place.  And getting the child element will be difficult because her husband is getting child benefit and he is not co operating or communicating at all.  But in theory, its sounds like she should be able to apply without it having an adverse effect on her immigration status in the event where she tries to change the status?

Rachel1
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Elliot Kent - 23 June 2020 02:49 PM

No - see Martin’s post above. She can get benefit.

She has a right to reside as the spouse of an EEA worker, it is irrelevant that the husband intends to divorce her, they are still spouses in law.
Her own situation is not important because she is relying on his EEA rights.

As he has been working throughout, if they can stay married for 5 years total, then that will give her permanent residence. She should be applying to EUSS anyway.

Thank you.  It seems I have been over simplifying the matter!  I will get my colleagues to help her with the EUSS

Rachel1
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Elliot Kent - 23 June 2020 02:49 PM

No - see Martin’s post above. She can get benefit.

She has a right to reside as the spouse of an EEA worker, it is irrelevant that the husband intends to divorce her, they are still spouses in law.
Her own situation is not important because she is relying on his EEA rights.

As he has been working throughout, if they can stay married for 5 years total, then that will give her permanent residence. She should be applying to EUSS anyway.

Thank you.  It seems I have been over complicating the matter!