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HRT Polish national , in UK since 2005

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Diogenes
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My client has made 3 claims for UC all refused as no right to reside, my local JCP has asked me to see if I can help as they feel very sorry for her, cl is single female, one child who has a disability for which the child gets DLA, my client says she has worked as a cleaner in the past but has no evidence of work, or any of the other grounds for a right to reside according to JCP. My client has no relatives in the UK, on the face of it she has been here surviving here since May 2005 , child born 2007.
yes I know it all sounds rather implausible , I do not know what she has lived on other than occasional wages adn DLA and as to housing costs again at present I in the dark.  Claimant has an ‘in time’ application to EUSS
Any suggestion please

[ Edited: 13 May 2022 at 10:01 am by Diogenes ]
Vonny
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Has she applied for settled status?

Va1der
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Does she have settled status?

Edit: jinx!

Diogenes
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Claimant has an ‘in time’ application to EUSS, not yet decided
She has an EUSS Application pending pre June 2021 dated 30/6/2021.

Va1der
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Have you spoken the HO? Seems like an awfully long time to leave an application undecided.

Elliot Kent
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First thought is that there may be derivative rights. The child is of school age. If it is established that one or both of the child’s parents were at some stage EEA workers, that would suffice.

Her oral evidence as to her work as a cleaner could, in principle, suffice. Alternatively, who is the child’s father? If they are also Polish or other EEA and they have a work history, that could be sufficient. If your client doesn’t know, the DWP may be compelled to investigate per Kerr

Another possibility is self-sufficiency. Although your client’s mechanism of survival is unclear, she has managed in the UK now for 17 years. A five year period of self-sufficiency within that would make her a permanent resident. This would not have appeared arguable because of the lack of comprehensive sickness insurance but the ECJ decision in the VI case - C-247/20 - saves the day in that regard
https://curia.europa.eu/juris/document/document.jsf?text=&docid=255423&pageIndex=0&doclang=en&mode=lst&dir;=&occ=first&part=1&cid=233107

Vonny
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Could CG help?, maybe try https://www.eurightshub.york.ac.uk/referral for assistance

Diogenes
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Thanks Elliot, that’s a good start, I think I first have to challenge the most recent decision and then get some grounds together, it seems JCP have let her keep claiming but she has so far not asked for an MR or any other form of challenge. I have to interview myself yet as this was a referral from the nice chap in my JCP who collared me in the kitchen and asked me to help [  I work in a multi agency building ]

Elliot Kent
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My record I think was someone who had made 7 claims on the same facts before I got involved and had them all revised. It is generally not helpful!

I think get some instructions from the client re where exactly she was working, whether the child is in school (letter from the school helps), what’s the score with the father and how has she been paying for herself the past 17 years and MR all of it.

Diogenes
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Thanks Elliot
I used to do tons of these HRT cases and many of them up to UT , but in my current post I hardly see any these days. i will get her in and as you say and I will MR all the decisions that come out of the woodwork. Generally speaking they have been quite easy to win but this one does sound like it may be hard work.

Elliot Kent
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Diogenes - 13 May 2022 10:35 AM

I used to do tons of these HRT cases

Yes, same here although most of my regulars have now got settled status which made their benefit affairs much simpler.

Paul_Treloar_AgeUK
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I once helped an Italian client who had lived in the UK for a number of years previously but had always worked cash in hand and as such, had absolutely no record of employment, no NIC’s etc. He also had significant substance abuse problems, which was why he cycled in and out of work - he’d earn a wedge of money and then go off and get battered until the money ran out again.

Applied for ESA and was knocked back on what sounds like similar grounds to your client. Once I interviewed him, we were able to construct a patchwork of his activities over the previous few years and I drafted a submission setting out details of what he could remember of his work, and where we argued he had continuously been able to use his status as a worker or someone with retained worker status when on a bender to satisfy R2R.

Managed to get him to attend the FtT (unrepresented) and once the judge was able to hear his evidence, his appeal was allowed and he was subsequently able to access rehab services also. So don’t be put off by the lack of hard evidence necessarily - see p.1576 of CPAG 2022/23 which has a useful summary of how to satisfy worker status even with cash in hand or marginal work.

Diogenes
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Thank you Paul, yes I suspect there is a history on this one, 17 years in the UK living on odd jobs must leave a trail, however faint.

Diogenes
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I took this client to the local JCP today who helpfully printed of the UC decision and agreed to put an MR in there and then as we were still in time . Just need to collect 15 years of evidence of client’s income, family, work, etc ect now, cl failed the HRT, cli s still waiting for EU settlement decision after almost a year !!!

Diogenes
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I have just come across a point in CPAG that says if UC is refused because of the HRT tax credits, and HB among other benefits should not stop but can carry on in payment. My client has lost all her old benfits, is it possible to get them restarted on the basis of this CPAG point ??? and if I argue she has been found by UC not to have a right to resided surely that will stop entitlement to the the old benefits anyway !!!

Elliot Kent
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That is something which I and others had argued, on the basis that a ‘stop notice’ which ended prior benefits would be invalid if the claimant did not meet the basic conditions of entitlement to UC. However, Judge Jacobs disposed of the argument in SK v HMRC [2022] UKUT 10 (AAC). I don’t know if that decision was available when CPAG went to print.