EEA Right to Reside -

Family members Extended Family

Members

Housing Systems December 2015

• 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

Considering:

• “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.

What’s the current problem for EEA national benefit claimants?

• “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?

”Genuine Prospect of Work”

– 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’

EEA Nationals - Right to Reside if:

• 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

EEA Nationals- family members

• 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)

Family member =

• 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

“Dependent”=

• 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.

Extended Family member =

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

EEA family permit

• 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

Durable relationship =

• 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

“Dependent Extended Family Member ”=

• “…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

“Dependent Extended Family Member who would satisfy ILR ”=

• 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!

Family member of British Citizen?

• 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…..

EEA Nationals

• 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…

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.

Retaining family member rights

• 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

• 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

Retaining family member rights

Exercise: Happy Families

• Which of these people are family members who can “piggy back” and which are not?

EEA Nationals

• 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

• 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…

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 . 

EEA Nationals- Permanent right of residence – family members

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!

• 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”

Derivative R2R

Derivative rights from child in education

• 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

Maternity & Pregnancy

• 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

EEA “worker” / “self-employed”