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Thursday, 1 December 2011

Right to Reside

G is a Dutch national, originally from Somalia. She came to live in the UK in 2003 to exercise her right to work here. Since arriving in the UK, G has always worked full time. The only gaps in her employment have been as a result of a work contract coming to an end and the time it took for G to find alternative employment.

G has worked as a cleaner, in factories, for the National Health Service and local authorities. She has paid tax and National Insurance.

As an EU national, the rules about G's benefit entitlement are very complicated. The law about who has the right to reside in the UK for the purposes of welfare benefits is complex and ever-changing and they also vary depending on what benefit is being claimed. In general, EU nationals are only entitled to benefit in the UK if they can show that they are 'workers' or 'work seekers'.

G would be entitled to Jobseekers Allowance (JSA) because she would still be seen as a worker or a work seeker while she was claiming this benefit. But if she were to make a claim for Income Support as a single parent, the law might not be on her side.

Nine months ago, G became pregnant for the first time. She carried on working but her employer decided not to renew her contract when it expired despite the fact that she was a hard and punctual worker and did a lot of overtime. G made a claim for JSA while she was seeking other employment. Her claim for JSA was successful as the Department for Work and Pensions (DWP) was satisfied that G was still a worker / work seeker for the purposes of her claim.

In October 2011, when G was 29 weeks pregnant, she was told by the DWP that she was no longer entitled to JSA as she could no longer meet the qualifying conditions, namely that she was available for work. This was because she was seen as being too heavily pregnant. G immediately made a claim for Income Support on the basis that she was heavily pregnant and that she would soon be a single parent. Her claim was not successful because it was decided that she did not have the right to reside in the UK for the purposes of her Income Support claim.

G made her claim for Income Support at the beginning of October. The decision about her claim was made on 25th November. She has had no income since her JSA was stopped.

G is being assisted with an appeal against the decision about her Income Support claim. However, appeals relating to the right to reside are notoriously slow. G is due to give birth at any moment. If she was in receipt of Income Support, she would also be entitled to certain maternity payments from the Social Fund which would benefit her greatly.

Also, because G's JSA was stopped, this will almost certainly result in the suspension of her Housing Benefit meaning that she could lose her home.

G's only option while she is in the process of appealing the Income Support decision is to try to make a new claim for JSA. She will find it very difficult to convince the DWP that she satisfies the conditions for this benefit as she will need to show that she is available for work which is a very hard thing for a heavily pregnant woman to prove.

The fact that it is only women who find themselves in this situation is wrong. A male EU national who has a child can carry on working or make a claim for JSA thus enjoying his worker status for the duration. G, however, is being penalised and discriminated against because she is a woman; the law says that women who become pregnant and who can not work as a result, do not retain their status as a worker and therefore no longer have the right to reside.

G has worked solidly since her arrival in the UK. She has undertaken challenging work and she has paid her way and made a positive contribution. She slept with a man nine months ago and became pregnant. The father of the child continues to claim JSA and receive full Housing Benefit which, of course is right. But what cannot be right is that fact that, as a result of her pregnancy, G has lost of all her income and all of her rights.

The case continues. G may be referred to social services for assistance under the Children Act when her baby is born.

4 comments:

  1. Don't worry! If she worked for at least 26 weeks in the 66 weeks leading up to the week in which her baby is due and earned on average £30 per week she can claim Maternity Allowance of £128.73 per week. Follow link below to claim:

    http://www.direct.gov.uk/en/Diol1/DoItOnline/DG_4017811

    P.S. I'm a benefits adviser!

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  2. Thank you very much for your comment. I'm a legal adviser too and I knew about MA but I still think the law is discriminatory towards women.

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  3. I don't think she can claim Maternity Allowance. The reason being is that she will only satisfy part of the MA employment condition: she has been working for 26 week or more in the 66 weeks before the expected delivery date, but, she is not on maternity leave. When a woman is on maternity leave, even unpaid, she is considered a former worker (she can go back to employment/employer keeps vecency for her). She is not in connection with an employer anymore (her contract was not renewed; she became unemployed and she is not a former worker once she is not available for work 'cause advanced pregnancy). In other words, as her employer did not renew her contract, she has not have any employment awaiting for her whenever she decides to resume work. Thus, she is not considered habitual resident cause she's not exercising treaty rights. This was decision maker answer for refusing my MA claim.

    I know is confusing. For legislation on this and better articulated explanation see DDWP decision maker guide on http://www.dwp.gov.uk/docs/dmgch62.pdf, at the bottom of pg 11.

    I am exactly in the same situation; have worked during 8 months in 2011 but went on JSA because redundancy. I'm EEA national residing in UK since 1999. I have worked and paid taxes. On JSA during the last 3 months.

    Applied for Is on 30th week pregnancy, but considered "person from abroad" and basically, don't even have entitlement to child benefit. I'm trying to get on JSA again/waiting to hear from decision maker even when I am 35 weeks pregnant and baby is due in 5 weeks time.

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  4. Re: above comment

    MA is not subject to meeting Hab Res and RTR conditions, I'm not sure what you're on about! Also, whether or not a claimant is under an employment contract or not is irrelevant! I suggest you seek out specialist Welfare Rights advice if you were refused MA and met all the employment and earnings conditions. You need help to appeal the decision.

    Re: G's situation and above

    Anyone who has resided continuously in the UK for five years in accordance with the relevant EEA Immigration Regs (2000 and 2006)has a permanent right of residence and is entitled to all the same benefits as a British Citizen e.g they can claim Income Support provided they are in one of the categories of people who can claim. Getting a permanent residence card by completing form EEA3 from the UK Border Agency would help, but is not legally required, you would simply need to demonstrate that for five years you were either a worker, a workseeker, self employed, a student, self sufficient or a family member of any of the above, with the exception of student.

    I hope this helps, these rules are fiendishly complicated and confusing!

    Good Luck!
    A Welfare Rights Worker.

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