latvian couple, female refused UC but male partner paid UC

I have a client, latvian couple , one child born oct 2024, settled, man has been paid UC , he is working, woman the partner has been refused as has dodgy work record over past 5 years, they are a couple and have been since they came to UK in 2017,  the MR says the claim from July this year has been refused for the woman,

Q, should I suggest a review of teh claim as she ahs now had the child

should I appeal teh MR on te grounds they are a couple and he is a qualifying person

any other ideas to get teh woman onto teh UC claim ???

many thanks

You haven’t really told us what EUSS status either member of the couple has, which is the starting point. You have used the word “settled” but it is not clear who you are referring to.

Settled status under the EUSS (i.e. indefinite leave to remain) is sufficient to satisfy the right to reside test on its own. If they only have pre-settled status (i.e. five years leave to remain) then that is when they would need to show that they are a qualifying person.

As you are advising at a CAB and therefore can provide level 1 immigration advice without breaching OISC rules, you might want to think about whether your clients might now qualify for settled status if they don’t already have it given that they arrived in 2017. If and when settled status is awarded, that would suffice going forward.

If the woman only has pre-settled status, then the main things to think about would be (1) whether or not the couple are married, because if so she can mirror his status at any given point (2) when she was last working and whether that worker status can be retained, in particular given that she has just had a baby and may be able to retain any worker status on the basis of St Prix and (3) if her last period work is more distant, whether it is possible to identify a five year period during which she was either working, able to retain her worker status or otherwise had some relevant right to reside in order to attempt to establish EU law permanent residence.

we know that the woman has pre settled status nad has been in UK since May 2017 but worked intermittently, they are not married or in a civil partnership but are in a sustainable relationship

last worked in Feb 2024, dwp say that it is too long from then to date when child was born in august 2024 to retain worker status

even though it was longer than 11 week before the child was born when claim was made ,the decision on the claim came within the 11weeks so would   St Prix apply in those circumstances,

DWP say St Prix doesn’t apply as the claim wa made prior to the 11 week period

11 weeks prior to due date was 02 08 24
decision to refuse claim was made on 09 08 24
claim was made on 18 07 24

St Prix holds that a woman can retain worker status where she stops work (or, for those retaining worker status already whilst involuntarily unemployed, stops looking for work) because of the physical constraints of the latter stages of pregnancy and intends to return to work. Applying that in a UK context, the UK courts have decided that the period before the due date where a woman can retain status will generally be 11 weeks - and that was arrived at by reference to the existing provisions relating to maternity pay. However, there is no set rule about 11 weeks - the issue will always be fact specific, so if there is a very difficult pregnancy or a risk to the health of the baby or mother if the mother continues work, it could well be that it was reasonable to stop work earlier in a given case.

But what has to be the case is that it is clear that the pregnancy was the reason for stopping work. From the dates you have given, it would appear due date was 18/10/2024? Which would mean that when your client last worked at the end of February 2024, she was only 2-3 weeks pregnant? Not saying that it is impossible that medical professionals might not have recommended she cease work due to pregnancy at the point, but you’re going to need unequivocal evidence of that to make a St Prix argument fly.

and the plot thickens, seems she claimed carers allowance from feb 2024 and still get that ,its for a neighbour, so not really plausible to say she had to stop work due   tp pregnancy

No. To put what I have said above more simply;

- DWP’s apparently blanket position that she cannot retain worker status because the claim was made more than 11 weeks before the due date is wrong - because it is a blanket position. There will always be some cases where pregnancy forces a woman to stop work earlier. Such individuals can retain status.

- But if a woman has stopped work prior to the 11 week period and the reason for stopping was something other than pregnancy, she cannot retain status on a St Prix basis (though she might be able to retain status on some other basis - e.g. involuntary unemployment, non-pregnancy related illness resulting in temporary incapacity).

thanks PC, it looks like st prix is out of teh frame, struggling to find anything that helps this one, she now has the child but cant see how that helps, should we ask for her to be added to the partners again on the basis of the child now being present,

her work history has breaks and periods where dwp say it was not substantive as she earned very little and was on zero hours contract
cant see how the carers allowance claim helps at present

If they have both been in the UK since 2017 and can evidence that, they should both be eligible for settled status. Once they have that, it’s sufficient and they don’t need to worry about whether either or both are employed, self-employed or whether they can retain that status.

Why doesn’t she have settled status?

Diogenes, Is her partner claiming UC Child Element and Child Benefit for the baby?

Jim

dwp has said she could have permanent right after 5 years BUT ther ei sno evidnec of her workign in the first 3 yeasr she was in the UK, so they have said no status for those years,
so they are saying she has no right to reside during those years, or cant prove a right

II am checking this out as she sasy she did work from 2018 but as this has been given to me today with partial info I need to check soem more

mr jim
I do believe so, will double check that one many thanks

A permanent right to reside and settled status are entirely different things - you do understand that Diogenes?

A permanent right to reside is acquired as a consequence of a person having exercised one of the EU free movement type rights of residence (worker, self-employed person, family member of a worker etc) for a continuous period. That continuous period is usually 5 years, but can be shorter for those approaching retirement age or who are permanently incapable of work as a result of industrial injury. The spouse and dependent family members of a person with a permanent right of residence will also have a qualifying right of residence. Essentially, a person has a permanent right to reside as a consequence of exercising free movement rights of residence.

Settled status is something a person is eligible for after 5 years continuous residence in the UK. It does not require that they have engaged in any economic activity during that time - they could have just sat on their bum. But as a consequence, having settled status does not, by itself, mean that spouses and dependent family members will have a qualifying right of residence.

It is possible for someone to simultaneously have settled status and have a right of residence as a worker or to have a permanent right to reside.

This means it is also possible for someone to have only pre-settled status and also a permanent right to reside - i.e. because they were not able to satisfy the HO of 5 years continuous residence whilst they were able to satisfy a tribunal they had worked for a continuous period of 5 years.

But putting all this together and cutting to the chase:

- Your client has been here since 2017 - well more than 5 years.
- She may not have a permanent right to reside because her work has been sporadic.
- But she doesn’t need to have worked for settled status.
- an application for either pre-settled or settled status is made to the Home Office - it has nothing to do with the DWP.
- Why has she not applied for this/why doesn’t she have it? It would solve her benefit issues immediately.

Thanks PC, yes I do understand the distinction, its just that I have ben presented with a situation, a refusal of UC, if we can fit her into one of the existing loop holes it will be good and warrant an appeal , it goes back to a claim from July, if we apply for settled status we need to start the claim all over again to add her from the date we eventually get status,
I have only so far spoken to the male partner and the info I have is sketchy, the partner is also sketchy about work history etc,

so I was hoping we could appeal the MR and get it resolved that way, it looks like there are no loop holes available so it may have to be a settled status app unless her work history springs a surprise and shows the5 years we need

Diogenes - 05 December 2024 04:19 PM

{b} if we apply for settled status [/b]we need to start the claim all over again to add her from the date we eventually get status,

If I’m reading this right and CA are also assisting with any settled status application, I don’t think you should be considering the application as optional - if granted, it gives her rights worth having and which she will otherwise not have.

And this is not an either/or scenario - as ought to have been plain from my posts above. She can have a permanent right to reside and settled status at the same time.

Thank you   PC yes of course we will be advising on settled status , as I said she has only just landed on my desk 2 days ago, as the time limit to appeal ran out 3 days ago I want firstly to make sure we don’t miss out if an appeal has a chance, it will get her money more quickly and be backdated

I have had 2 similar ‘hopeless’ cases recently referred to me by my local jobcentre and we managed to get them both changed in the client’s favour at MR stage so if we can get a result sooner rather than later that is the preferred option,

its not an either or situation , we will of course be looking at every channel available to help her