× Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Residence issues  →  Thread

UC for an EEA jobseeker

Rachel1
forum member

North East Law Centre, Newcastle upon Tyne

Send message

Total Posts: 145

Joined: 9 October 2019

Hi there I have a query:
I have a client who is a Spanish National.  She has limited leave to remain but she has been in the country for just over 5 years so I am getting my immigration team on board for further help with applications for settled status. 

She is a victim of domestic violence and forced marriage and has fled from a different area in the UK to our area and is in a refuge.  She has no children.

She has applied for Universal credit and this has been turned down because it was decided that she was an EEA jobseeker but this does not satisfy the right to reside requirement for UC.

It is my understanding that she cannot apply for Universal credit and I cannot appeal this decision, am I correct?
She needs to apply for settled status before she can get UC as she will have right to reside status for UC purposes?  Am I missing something?

Thank you for any help in advance

Edit: EEA worker to Jobseeker - apologies

[ Edited: 14 Jul 2020 at 11:16 am by Rachel1 ]
Elliot Kent
forum member

Shelter

Send message

Total Posts: 3117

Joined: 14 July 2014

Rachel1 - 14 July 2020 10:13 AM

She has applied for Universal credit and this has been turned down because it was decided that she was an EEA worker but this does not satisfy the right to reside requirement for UC.

It is my understanding that she cannot apply for Universal credit and I cannot appeal this decision, am I correct?
She needs to apply for settled status before she can get UC as she will have right to reside status for UC purposes?  Am I missing something?

I’m afraid this isn’t right.

If your client is an EEA worker then she absolutely has a right to reside for the purposes of UC. This is a right to reside under Reg 6 of the Immigration EEA Regulations 2016.

Possibly the DWP are saying that your client is an EEA jobseeker - which is a right to reside which doesn’t count. See reg 9(3)(aa) of the Universal Credit Regulations 2013.

The decision absolutely can be appealed, as with any other entitlement decision, subject first to going through mandatory reconsideration. These decisions are very frequently the subject of successful appeals.

Settled status is one way of getting a right to reside, but it is not the only one. It is still possible to rely on other rights, such as being an EEA worker.

It is not obvious whether or not your client has a right to reside. It will depend on a number of factors, principally regarding her work history and possibly that of her former partner too.

I would encourage you to get the CPAG book Benefits for Migrants which has a lot of information on dealing with these cases.

Rachel1
forum member

North East Law Centre, Newcastle upon Tyne

Send message

Total Posts: 145

Joined: 9 October 2019

Elliot Kent - 14 July 2020 11:15 AM
Rachel1 - 14 July 2020 10:13 AM

She has applied for Universal credit and this has been turned down because it was decided that she was an EEA worker but this does not satisfy the right to reside requirement for UC.

It is my understanding that she cannot apply for Universal credit and I cannot appeal this decision, am I correct?
She needs to apply for settled status before she can get UC as she will have right to reside status for UC purposes?  Am I missing something?

I’m afraid this isn’t right.

If your client is an EEA worker then she absolutely has a right to reside for the purposes of UC. This is a right to reside under Reg 6 of the Immigration EEA Regulations 2016.

Possibly the DWP are saying that your client is an EEA jobseeker - which is a right to reside which doesn’t count. See reg 9(3)(aa) of the Universal Credit Regulations 2013.

The decision absolutely can be appealed, as with any other entitlement decision, subject first to going through mandatory reconsideration. These decisions are very frequently the subject of successful appeals.

Settled status is one way of getting a right to reside, but it is not the only one. It is still possible to rely on other rights, such as being an EEA worker.

It is not obvious whether or not your client has a right to reside. It will depend on a number of factors, principally regarding her work history and possibly that of her former partner too.

I would encourage you to get the CPAG book Benefits for Migrants which has a lot of information on dealing with these cases.

Argh sorry I meant job seeker not worker.  She has not worked in this country (will check this again just to be sure) and has been trying to get onto a college course since being in this area.

I will check into her partner’s history.

There has already been an Mandatory reconsideration and has already received the notice so it’s at the appeal stage now.

Thank you for your help

AlexJ
forum member

Trafford Welfare Rights

Send message

Total Posts: 178

Joined: 4 July 2016

Is she married? If so is her husband an EEA national? That’s an important dimension, as she may be able to show she has a right to reside as a family member through her spouse if she’s married (even if she’s estranged from him which it sounds like she is). Have a look at this year’s CPAG page 1615.

If she can’t prove his work history in the UK, there’s an argument that the DWP should provide details of his work and benefits history in the UK as per the Kerr case.

AlexJ
forum member

Trafford Welfare Rights

Send message

Total Posts: 178

Joined: 4 July 2016

Also have a look at this thread for legal stuff on getting the DWP to disclose her husband’s work history (assuming they are married). https://www.rightsnet.org.uk/forums/viewthread/15856/#75380

Rachel1
forum member

North East Law Centre, Newcastle upon Tyne

Send message

Total Posts: 145

Joined: 9 October 2019

AlexJ - 14 July 2020 12:52 PM

Is she married? If so is her husband an EEA national? That’s an important dimension, as she may be able to show she has a right to reside as a family member through her spouse if she’s married (even if she’s estranged from him which it sounds like she is). Have a look at this year’s CPAG page 1615.

If she can’t prove his work history in the UK, there’s an argument that the DWP should provide details of his work and benefits history in the UK as per the Kerr case.

Thanks for the reply.  I’ve since found out that she never actually married this person as the police made a forced marriage order against the parents and she managed to escape before that.  (Language barrier and very bad phone signal was partly the reason for this misunderstanding.

I don’t think I’ll be able to argue for UC under these circumstances?  Thanks again.

Martin Williams
forum member

Welfare rights advisor - CPAG, London

Send message

Total Posts: 769

Joined: 16 June 2010

1. Put in the appeal anyway and if no other arguments then ask for it to be stayed pending Court of Appeal decision in Fratila (due to be heard on 27-28 Octbober).

2. Does she have any kids?

Martin.

Rachel1
forum member

North East Law Centre, Newcastle upon Tyne

Send message

Total Posts: 145

Joined: 9 October 2019

Martin Williams - 20 July 2020 01:56 PM

1. Put in the appeal anyway and if no other arguments then ask for it to be stayed pending Court of Appeal decision in Fratila (due to be heard on 27-28 Octbober).

2. Does she have any kids?

Martin.

No, no children.  I have since found out that she is actually only 20 so will wait to hear of her parents circumstances and if they are EEA workers and have been exercising their treaty rights she could derive rights through them.  I’ll bung in an appeal form asap so I have the chance to investigate further.  Thank you.