R2R for ESA - permanent residence lost?

But you also need to read sub-paras’ 1,2 and 3 of para’ 6, particularly to the reference to activity and residence under previous directives.  Regs’ attached.

I’ve found it in the consolidated legislation here:

http://www.dwp.gov.uk/docs/a1-6209.pdf

I’ve not looked at it in detail but on a skim read I’m a little afraid he might be right that certainly hadn’t been my impression previously….

‘nevipped’ to the post….

So looks like my client is stuffed?

I have never really had to bother with transitional protection - does this just apply where someone has been continuously in receipt of certain benefits before April 2006?

Hi.

No chance of going down the route of Reg 5. Thinking 5(3)(a) and 5(7)?

PCLC - 21 May 2014 02:13 PM

So looks like my client is stuffed?

Unfortunately, the judge is right!!

Unless you can convince him on the self sufficiency issue, and I’m thinking the medical insurance bit will be the problem (I still think with the length of time in the UK NHS availability should suffice but greater minds think not) there is a recent decision on the subject, somewhere on rightsnet forum, there is no R2R cos it’s been lost and hasn’t been regained.

As Cyprus is in the Commonwealth it’s worth checking the following.

Section 2 of the Immigration Act 1971 states:

(1)A person is under this Act to have the right of abode in the United Kingdom if—
(a)he is a British citizen; or
(b)he is a Commonwealth citizen who—
(i)immediately before the commencement of the British Nationality Act 1981 was a Commonwealth citizen having the right of abode in the United Kingdom by virtue of section 2(1)(d) or section 2(2) of this Act as then in force; and
(ii)has not ceased to be a Commonwealth citizen in the meanwhile.

Section 2(1)(d) of the original act then in force states:

(1)A person is under this Act to have the right of abode in the United Kingdom if—
(d)he is a Commonwealth citizen born to or legally adopted by a parent who at the time of the birth or adoption had citizenship of the United Kingdom and Colonies by his birth in the United Kingdom or in any of the Islands.

Subs 2 is not applicable to him.

Many thanks for all the replies.

Alex - I don’t think that would work. He was on JSA for 2 years before his car accident in Feb 2013. He had separated from his wife, partly due to arguments over her supporting him for 3 years while he was re-training as an IT engineer using the web.

So he lost his worker status a long time ago and was effectively a jobseeker when he claimed ESA.

Has anyone got a link to the decision Chacha mentioned on self sufficiency and social insurance?

Paul - its interesting you say that as there is a back story here which is that he is probably British anyway, but we cant prove it right now. His parents and 2 brothers naturalised in 1965. He assumed the same had been done for him, but when he applied for his first British passport in 2008 it was refused due to lack of evidence. He even got his MP involved at the time, to no avail.

I will now give this to our immigration worker to help, as it looks like he will lose the appeal. But it will not be a quick fix.

Also Paul do you think a Tribunal is going to be willing to stray into immigration law with your suggestion, sound as it is?

“Also Paul do you think a Tribunal is going to be willing to stray into immigration law with your suggestion, sound as it is”?

I think a tribunal has to go where legal argument takes it, even if only to decide, with proper explanation, why a particular statute has no relevance to the case before it.

http://www.rightsnet.org.uk/forums/viewthread/6018/#25267

See the cases mention @ post #8 by HB Anorak.

I think Paul’s suggestion is probably the only way to go, the tribunal, as he says, will not have a choice other than to explore the possibilities of a residency right by other means if suggested.

Commentary in Findlay certainly doesn’t suggest that two years as non-qualified person within UK means that the permanent right of residence is lost.

See p.309 of 26th edition, [2.4] Permanent right of residence - “Art 16 of the Directive provides that those who have resided legally for a continuous period of five years in the host Member state shall have the permanent right of residence there. Once acquired this right is not subject to the claimant meeting other conditions (eg, being a worker, self-employed person etc) and the right can only be lost by absence from the host state of more than two consecutive years.”

Paul_Treloar - 22 May 2014 03:24 PM

Commentary in Findlay certainly doesn’t suggest that two years as non-qualified person within UK means that the permanent right of residence is lost.

Yes, but that only refers to perm res wholly or partly falling under the new regulations, and not perm res wholly and exclusively under the old regs (2000).

But that would be when the case of Lassal kicks in then? Surely can be no difference with a permanent R2R acquired before April 2006 to one afterwards?

Might be on to something here, where domestic law is more restrictive than EU law, so EU law would over-ride?

chacha - 22 May 2014 04:18 PM

Yes, but that only refers to perm res wholly or partly falling under the new regulations, and not perm res wholly and exclusively under the old regs (2000).

I can’t agree, the following commentary to the quoted text is concerned with the Lassal case which is all about pre-2006 residency.

Further, reg.15(2) of Immigrations (EEA) regs states unequivocally:

(2) Once acquired, the right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years

In my opinion, the effect of para 6(4) in sch.4 of the regs is to deal with situations prior to someone establishing their permanent right of residence i.e. if they’ve done a couple of years and then they stop work or leave for a couple of years. That is in keeping with the other case law discussed also.

Otherwise, para.6(1) & (2) intend to allow pre-2006 residency as what would become a qualified person to count towards satisfying the test under reg.15(1) and once that is satisfied under para.6(1)&(2) of sch.4, reg.15(2) precludes any subsequent interruption of being a qualified person from removing the permanent right of residence.

Have a look at Dias v SSWP C-325/09. This case came after Lassal. Dias has done her 5 years lawful residence but prior to the permanent right to reside business coming in in 2006. The CJEU decided that her periods of not having a right to reside could be treated the same way as periods of absence from the UK in Lassal. This were less than 2 years in her case so she was found to have a permanent R2r. I think I read an article in the Welfare Rights Bulletin once suggesting that two years of not having a particular r2r like this need not necessarily be fatal. It might be worth getting onto CPAG to see if they still think that this sort of thing is worth pursuing. Or I might have misremembered the article.