extended family member

Hi (me again; one day will understand all this EEA stuff!)

so, I have a couple claiming UC (both EEA nationals, not been here long enough for PR2R;  at time of last conversation, hadn’t applied to EUSS but have been advised to seek assistance with this). Mr works and claims UC for himself and their baby. Mrs isn’t working (and no work history). No child in education; not married but living together. She has been refused UC as failing RtoR.

I may be misunderstanding but I thought that it was possible now to claim UC as an extended family member, (without permit, or residence card) and have argued using ADM30/20 that family member:

1. has the same meaning as defined in the specified legislation that had effect immediately before 11pm on 31.12.20 and
2. includes an extended family member as defined in the specified legislation that had effect immediately before 11pm on 31.12.20 if that person
    2.1 immediately before 11pm on 31.12.20 satisfied the condition of being a durable partner (EEA regulations 2016 regulation 8 (5) -
  regulation 8(5) - The condition in this paragraph is that the person is the partner (other than a civil partner) of,
and in a durable relationship with, an EEA national and is able to prove this to the decision maker.

We understand that previously, it may have been the case that a residence card was needed for
an extended family member, but believe that this is no longer the case following The Citizens
Rights (application deadline and temporary protection) (EU exit) regulations 2020.

Have I misinterpreted this? is something further still required (such as some kind of family permit?) to my knowledge the durable relationship was formed after arriving in Uk.

thank you for any clarification.

if they are a couple, why is she claiming iUC n her own right?
Or are you saying that she has been excluded from partners claim?

Prisca - 22 March 2021 03:41 PM

if they are a couple, why is she claiming iUC n her own right?
Or are you saying that she has been excluded from partners claim?

she is excluded from partners claim (sorry if that wasn’t clear)

i think the issue is that in order to have “extended family status” she would have to have had a residency card to show this - so they would need to convince the home office of their duly attested relationship prior to December 2020.

It isnt a decision the DWP or HB staff could make - its a home office status, so while we may think she would qualify for it, its not in our gift to award it to her.  (Hb wouldnt care as we cant “split” a couple and ignore one member the wat the DWP can with legacy benefit claims and UC)_

If she hasn’t got that” officail” extended family member badge already , i don’t she can apply for it now ( because now its it settled status or pre settled status)

if they were married, shed be a family member and automatically have the same status as him - but as she isnt a spouse, shes not a family member., so the UC can exclude her if she has no recourse to public funds , and at the moment, having pre settled status means she hasnt got recourse that stretches far enough to get UC, (or, in this case, for her partner to get a higher award of UC because he has a partner)

Im not 100% on how UC work in regards to the new rules, though so Hopefully a proper PFA expert will see a way for your customer’s partner to be included.

Thank you Prisca. I did think (perhaps mistakenly) that the ‘grace period’ regs had changed this. In ADM 30/20 item 8 (which defines a family member) now states that this definition includes an extended family member.  The regulations state that regulation 8 of The Immigration (EEA regs) 2016 has been retained, but the latest version seems to have been amended and regulation 8 no longer refers to a residence card but instead states

8 (5) The condition in this paragraph is that the person is the partner (other than a civil partner) of, and in a durable relationship with, an EEA national [F4or the child (under the age of 18) of that partner], and is able to prove this to the decision maker.

https://www.legislation.gov.uk/uksi/2016/1052/regulation/8

It appears that the reference to a residence card has been removed. I may totally be mis-interpreting this as I am by no means an expert (hence my post). I do have some training tomorrow on EEA nationals and Brexit so I will ask there and hopefully will get some clarification.

updated now as I can see I am totally up the wrong tree. I now know that regulation 8 has indeed removed the reference to a residence document. But this regulation only defines who is an extended family member. An extended family member who meets these conditions, can then be treated as a family member under regulation 7. However, sadly for my client, regulation 7 has not been amended and therefore a residence card etc is still required.  Back to the drawing board it seems. Thank you though Prisca for your help on this.