Right to Reside and Habitual Residence Tests for UC Rebecca Walker September 2018

What we are covering in this workshop The Habitual Residence Test (HRT) within UC - structure and exclusions Issues specific to those moving from legacy benefits - when no right to reside - termination of legacy benefits Challenging common reasons for failing HRT - problems old & new - recent changes in legislation and caselaw Note we can't cover all residence issues in this workshop Needs

HRT for UC Claimant(s) must either be exempt from HRT or satisfy it Main difference from legacy benefits is HRT in UC applies to both partners If 1 fails HRT, other claims as single person (but partner's income & capital counts) Claimant(s) must either be exempt from HRT or satisfy it This is in addition to satisfying other UC requirements inc. that the claimant(s) must: - be present in GB (= one of the 'basic conditions' for UC & if fail HRT are treated as not present in GB) and (only relevant if the claimant is a non-EEA national) - not be a 'person subject to immigration control' (v few exemptions) Needs

Satisfying the HRT for UC To satisfy the HRT the claimant(s) must: be habitually resident in Common Travel Area (CTA) - have a settled intention to reside in CTA for time being; and - have been resident for an ‘appreciable period’ (dep on circs & shorter if returning resident) have a right to reside in Common Travel Area (CTA) other than - initial right to reside (1st 3m) - as non-EEA primary carer of dependent British citizen who would otherwise have to leave whole of EU (“Zambrano carers”) - right to reside as an EEA jobseeker [note: NO requirement to have been living in the UK for past 3m – in contrast to ib-JSA] Needs

Main groups exempt from the HRT If claimant(s) have only recently come to UK always check if exempt – DWP often don’t identify these groups Main exempt groups* Specific types of immigration leave (main ones = refugee status, Humanitarian Protection & Discretionary Leave); EEA worker / self employed (including if retained status); or Family member (see next slide) of EEA worker / self-emp * (full list of groups in pack) Needs

Family Members The EEA national's: spouse or civil partner (do not have to live together); or The EEA national (or their spouse / civil partner)'s (grand)child who is under 21 or dependant; or (grand)parent who is dependent

Claimants moving from legacy benefits Numerous experiences of right to reside having been accepted for legacy means tested benefits and then not for UC NOTE: Transitional protection from needing a right to reside if continuous means tested benefits since 30.4.04 - does NOT apply to UC (Refer for immigration advice)

Universal Credit - moving from legacy benefits If claimant in receipt of legacy benefits & change of circs means needs to claim UC... If DWP find does NOT satisfy HRT (eg: DWP say no R2R) that decision does NOT terminate HB, IS, CTC or WTC as these are only ended if:* a claim for UC is made; AND DWP is satisfied that claimant meets the basic conditions inc 'being in GB' (treated as not in GB if fail HRT) * Reg 8 UC(TP) Regs 2014 Note: ib-JSA & ir-ESA do end with a valid UC claim

Your experiences What are the circumstances of your clients that have been told they have failed the HRT?

Common reasons for 'no right to reside' decisions Residence rights not picked up – inc: - permanent residence (note: generally only lost if absent from UK for > 2 yrs) - retained worker / self-employed status (inc while registered as jobseeker) - family members (inc separated spouse / civil partner & kids <21) Incorrect interpretation of who is a worker / self-employed – often due to misapplying guidance on ‘Minimum Earnings Threshold’ (average earnings of £162pw/£702pcm for past 3m) - should be assessing is it 'genuine & effective' (consider all circs inc: duration, hours, pay, regularity) Refusal to accept derivative right to reside – see next slide

Derivative right to reside Main derivative right to reside, for purposes of claiming benefits, is: primary carer of an EEA worker’s child in education Based on: EU Reg 492/2011 Art 10 - provides right of EEA worker’s child to education & CJEU caselaw then held must mean the child has a right of residence and their primary carer does too

Detail on primary carer of worker’s child in education What is required = claimant is the primary carer of child who is currently in education one of the child's (step) parents was an EEA worker in the UK while the child was also in the UK Doesn't matter if (step) parent left work &/or left UK before child starts school 'education' = from ‘around age 5’ (ie not nursery education but does inc education before compulsory school age if equivalent to education at/after that age) continues while child completes their education (at least until age of majority)

EEA Regs say: only have a derivative R2R if not an 'exempt person' Are an 'exempt person' if: have a R2R under another provision of the EEA Regs; a British citizen; a commonwealth citizen with a right of abode; as a person with indefinite leave; or have a R2R under provisions which exempt certain persons from the requirement to have leave (eg: specified seamen, aircrew & diplomats) eg: DWP says R2R as jobseeker means no derivative R2R & therefore no UC (cos R2R as jobseeker is an excluded residence right)

How to challenge this: 1. Is the claimant not required to look for work? - not subject to all work-related requirements (eg: responsible carer of child <3 or LCW); or - temporary exemption (eg: death of partner / child in last 6m) If not looking for work do not have a right to reside as a jobseeker - therefore not an ‘exempt person’ 2. If required to search & be available for work will need to argue Regs impose unlawful restriction No caselaw - just a comment in HK v SSWP [2017] UKUT 421 (AAC) that Judge didn't understand SSWP's argument that couldn't have a derivative R2R until had 'exhausted' rights as a jobseeker Challenge these 'must 1st exhaust all other rights under the Regs' decisions by ref to definition of 'exempt person' – it inc person who HAS another right under the regs. Go back to EU Reg 492/2011 Art 10 ...

EU Reg 492/2011 Art 10 The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory. Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions. Arguably deciding that a claimant's derivative right of residence changes to one of a jobseeker on claiming UC does not comply with the above

Recent developments Due to significant CJEU judgements, EEA Regs amended from 24.7.18: No longer exclude primary carers who share care with an 'exempt person' (Chavez-Vilchez) Can now retain self-employed status in same ways as can retain worker status (Gusa) Family members of dual British / other EEA nationals can have residence rights (in limited circs) (Lounes)

Essential Publications

Training courses coming up: Right to reside & habitual residence Standard level - if you sometimes provide benefits advice to EEA nationals London - Tue 2nd October Manchester - Wed 21st November Residence & presence tests - in detail Experienced level - if you often provide benefits advice to EEA nationals & assist with challenges, also covers some aspects of EU co-ordination rules London - Wed 3rd October Manchester - Thur 22nd November Needs