EEA Right to Reside -

1. EEA Right to Reside - Family members Extended Family MembersHousing Systems December 2015

4. Considering: • Why we might need to discover if a claimant counts as an EEA national’s family member • Who is a “family member” • Who is an “extended family member” • What happens if the EEA national dies or leaves the UK or the relationship ends • What if don’t fit the criteria? – Do these apply: - Permanent residence?- Derivative right to reside? - Special maternity rules

5. What’s the current problem for EEA national benefit claimants? • “Genuine Prospect of Work” test • Testing all EEA jobseekers (whether jobseeker status, or those whose retained worker status is ending) • Plus tightened benefit rules for EEA nationals since 2014 • If they can’t show Right to Reside (R2R) - • Lose entitlement to Housing Benefit , JSA, or both.

6. ”Genuine Prospect of Work” • “Compelling evidence that they are continuing to seek employment & havea genuine chance of being engaged” • Very limited extension to R2R – one or two months, so…. • Does the claimant have an alternative R2R?

7. EEA Nationals - Right to Reside if: • A worker / A self-employed person or • Have retained worker / self employed status through being temporarily unable to work due to ill health or • Seeking work* with a ‘retained worker status’ (for a limited period of time) or • A self-sufficient student or • A self-sufficient person or • Have a permanent right of residence or • Some family members of above or • Have a ‘derivative right to reside’ • *Special rules for jobseekers who do not have a ‘retained worker status’

8. EEA Nationals- family members • Claimant can “piggy back” on an EEA family member’s status • Whether they themselves are an EEA national or not • Family Member – I (EEA) reg 7 • or • Extended Family Member – I (EEA) reg 8

9. Family member = • Spouse/civil partner until divorced/ partnership dissolved • Direct descendants of EEA national/partner, aged under 21 (child, grandchild, great grandchild) • Direct descendants of EEA national/partner, (child, grandchild, great grandchild) if “dependent*” on EEA national • Dependent relatives in direct ascending line of EEA national/partner (parent, grandparent, great grandparent)

10. “Dependent”= • Receive support from EEA national • Which is “Material” • Which contributes to the basic necessities of life • Irrelevant if alternative support available • Irrelevant if only became dependent on them once in the UK (unlike if extended family member) • Can’t refuse on basis that getting the benefit means would no longer be dependent on the EEA national

11. Extended Family member = • Issued with an EEA family permit or registration certificate or residence cardAND • In a durable relationship* with the EEA national or • A relative who has serious health problems that require the care of the EEA national/ their spouse/civil partner or • A relative who is dependent** on the EEA national/ their spouse/civil partner or • A relative who would satisfy the Immigration rules for Indefinite Leave to Remain*** as the EEA national’s dependent if the EEA national were present and settled in the UK • if they can demonstrate that, as a result of age, illness or disability, they require a level of long-term personal care that can only be provided in the UK by their relative here and without recourse to public funds.

12. EEA Nationals – family member- Residence card – useful for “family members”; essential for “extended family members”

13. EEA family permit

14. Durable relationship = • Duly attested means confirmed in writing. • Durable relationship generally means must have lasted two years or this can be shortened if there are children. • Discretionary

15. “Dependent Extended Family Member ”= • As “dependent family member” BUT • Have to have been dependent on the EEA national in a country other than the UK and • Accompanying/joining them in the UK and • Continue to be dependent on them as part of their household

16. “Dependent Extended Family Member who would satisfy ILR ”= • “…can demonstrate that, as a result of age, illness or disability, they require a level of long-term personal care that can only be provided in the UK by their relative here and without recourse to public funds.” • Appendix FM Of The Immigration Rules Section FM 6.0

17. Family member of British Citizen? • As British citizen, not an EEA national, EEA rules don’t apply • Unless retains R2R as worker in another EEA state • And transferred “centre of life” to that state • But this might be arguable under EEA regulations and is a complex area of law – seek advice!

18. EEA Nationals • Family members might lose “piggy backed status” if: • EEA leaves the country • EEA dies or divorces (or separates, if a partner) • EEA ceases to have their own right to reside • Problem of proof…..

19. Retaining family member rights • Separating couples • Can claim HB in their own right if: • Family member of EEA national who is one of the above and • is married but not yet divorced or • civil partnership not yet dissolved • Otherwise…

20. Retaining family member rights • Separating couples • ONLY for non EEA nationals, who would have worker status/ self sufficient if were an EEA national and • “continued residence in UK is warranted by particularly difficult circumstances eg domestic violence” or • a divorced/annulled couple (including civil partners) had been married/ in a civil partnership at least 3 years and had been in the UK for at least a year,  or •  the ex-spouse / civil partner of EEA national has custody of / access to child of relationship, where a court order has stipulated access must be in UK.

21. Can claim public funds for 3 months while applying for indefinite leave to remain on DV grounds • Only if: • Spouse/civil partner/ unmarried partner of a British citizen or someone with settled statusand • Relationship broke down due to domestic violenceand • Destitute and in need of benefits • Form from Gov.UK Fleeing violence– DDV concession- nonEEA

22. Retaining family member rights • Death • Were a family member of the EEA national when they died AND either • Direct descendant of EEA national or their spouse/ partner & at school/college in UK when died, & still are, OR • Parent with custody of a child who satisfies above OR • Worker status in UK for 1 year + immediately before EEA died OT • If not an EEA national themselves, would have had worker status if they had been, or family member of a non-EEA national who would have had worker status

23. EEA Nationals Exercise: Happy Families • Which of these people are family members who can “piggy back” and which are not?

24. Had ‘right to reside’ in UK for 5 years or more as • Worker / self employed • Retained worker / self employed status • Self-sufficient person • A self-sufficient student • Family member of one of the above • Jobseeker* – if entitled to IB JSA • Can acquire permanent residence early: • Permanent incapacity in some situations • Retired in some situations EEA Nationals- Permanent right of residence

25. EEA Nationals- Permanent right of residence – family members • Can piggy back on permanent residence status • Lose status if person they’re piggy backing on • Dies or Leaves UK or Divorced/dissolved • But then can apply for permanent residence status in own right in limited circumstances- • Lived as family member of someone with PR other R2R (except derivative) for 5 years • Family member of EEA who died – some circumstances…

26. EEA Nationals- Permanent right of residence – family members • A family member of a worker or self employed person who died while still in employment or self-employment, will acquire permanent residence status if: • They had lived in with the EEA national in the UK for two years or • The EEA national died as a result of an industrial disease/accident . 

27. EEA Nationals • Can apply for permanent right of residence card – not essential but very useful • NB - permanent residence status lost if abroad for 2 years + …… but could still have card!

28. Derivative R2R • Also may have “Derivative Rights” • Gain the ‘right to reside’ • BUT • Must pass ‘habitual residence’ • Derivative rights don’t count towards 5 years for permanent residence • Can’t piggy back on someone whose right to reside is “derivative”

29. Derivative rights from child in education • Treaty rights of child under 18 of EEA worker to be educated – • The parent & “primary carer” of this child derives a Right to Reside if: • either parent was employed in the UK as an EEA worker • ‘for some common period’ whentheir child also in UK(not necessarily same home) • If “actually habitually resident’ will be able to claim HB

30. Maternity & Pregnancy • If still has employment contract /in business, then still has “worker status” • If has to finish employed(not self employed)work • may have ‘retained worker status’ if jobseeking, • & for a period while not looking for work so long as return to work/jobseeking after – DMG Memo 25/14 – Jessy Saint Prix case – 26 wks ; SSWP v SFF & Ors UKUT 502(AAC) - up to 52 weeks, possibly longer if child disabled etc

31. EEA “worker” / “self-employed” • What happens when an EEA worker is on maternity leave? • If still has employment contract /in business • still has “worker status” • If has to finish employed work • may have ‘retained worker status’ if jobseeking, • & for 26 week period while not looking for work – DMG Memo 25/14 • Only applies to Croatian nationals who have completed 12 mths’ authorised work