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  • FIRST POST
    • Big46
    • By Big46 14th Oct 16, 3:19 PM
    • 7Posts
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    Big46
    Habitatul residency test
    • #1
    • 14th Oct 16, 3:19 PM
    Habitatul residency test 14th Oct 16 at 3:19 PM
    Hi everyone,

    I am wondering if anyone has any advice.
    Last edited by Big46; 16-10-2016 at 5:14 AM.
Page 1
    • TELLIT01
    • By TELLIT01 14th Oct 16, 3:31 PM
    • 2,628 Posts
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    TELLIT01
    • #2
    • 14th Oct 16, 3:31 PM
    • #2
    • 14th Oct 16, 3:31 PM
    The letter should include information about why you failed the HRT. If there is no explanation, or you don't understand the explanation, I would suggest calling them to discuss the situation.
    • Big46
    • By Big46 14th Oct 16, 3:52 PM
    • 7 Posts
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    Big46
    • #3
    • 14th Oct 16, 3:52 PM
    • #3
    • 14th Oct 16, 3:52 PM
    Letter was incorrect waiting for new Decision.
    Last edited by Big46; 16-10-2016 at 5:15 AM.
    • nannytone
    • By nannytone 14th Oct 16, 4:14 PM
    • 11,528 Posts
    • 16,772 Thanks
    nannytone
    • #4
    • 14th Oct 16, 4:14 PM
    • #4
    • 14th Oct 16, 4:14 PM
    They just said because I'm a full time carer im not seeking work so I can't retain my "workers status" therefore don't have a right to reside. I am In Limbo.
    Originally posted by Big46
    your wife could claim ESA instead
    • Big46
    • By Big46 14th Oct 16, 5:09 PM
    • 7 Posts
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    Big46
    • #5
    • 14th Oct 16, 5:09 PM
    • #5
    • 14th Oct 16, 5:09 PM
    until we get her care plan in place and I can go back to work.
    Last edited by Big46; 16-10-2016 at 5:16 AM.
    • sheramber
    • By sheramber 14th Oct 16, 6:51 PM
    • 2,722 Posts
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    sheramber
    • #6
    • 14th Oct 16, 6:51 PM
    • #6
    • 14th Oct 16, 6:51 PM
    The Habitual Residence test is only applied to means tested benefits so you were able to claim carer's allowance as it is not means tested.

    Have a look at this website
    https://www.citizensadvice.org.uk/benefits/coming-from-abroad-and-claiming-benefits-the-habitual-residence-test/
    • TELLIT01
    • By TELLIT01 14th Oct 16, 7:05 PM
    • 2,628 Posts
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    TELLIT01
    • #7
    • 14th Oct 16, 7:05 PM
    • #7
    • 14th Oct 16, 7:05 PM
    HRT requirements have been tightened up a lot over the past few years, and one of the conditions now is about employment. It seems it is this that you been caught up in. Whilst I sympathise with your wife, the face remains that this is the only way to obtain additional benefits at this time. If she simply won't claim there is little you can do other than appealing the HRT decision.
    • OhWow
    • By OhWow 15th Oct 16, 6:13 PM
    • 58 Posts
    • 52 Thanks
    OhWow
    • #8
    • 15th Oct 16, 6:13 PM
    • #8
    • 15th Oct 16, 6:13 PM
    They just said because I'm a full time carer im not seeking work so I can't retain my "workers status" therefore don't have a right to reside. I am In Limbo.
    Originally posted by Big46
    That's correct. You cannot take any UK benefits at all.

    To reside in another EEA country and claim their benefits, then we must be a qualified person at all times. (Not all types "qualifed persons" can claim UK benefits either.)


    If you had been a jobseeker qualifed person after leaving your UK job, and had the evidence to prove that, then you would have retained worker status for up to 6 months. An EEA citizen jobseeker qualifed person can only have 6 months of looking for work in the UK.

    The "don't have a right to reside" in the UK is because you are not following EU treaty rights of free movement and therefore you have no right to be in the UK.


    I am an English speaking Italian citizen and I have lived in the U.K. Since 2012 with my British partner and married since 2013.
    Originally posted by Big46
    Being married to a citizen of that EEA country is not being a qualified person.

    From 2012-2013 I was self sufficient
    Originally posted by Big46
    Did you have a CSI (Comprehensive Sickness Insurance) for all this time? To be a Self Sufficient qualified person, you need to have held a CSI at all times.

    From late 2013-to early 2014 I claimed jobseekers
    Originally posted by Big46
    Was this for more than 6 monthS?

    I am 8 months away from permanent residency under the EU rules.
    Originally posted by Big46
    Unfortunately, it looks like you have stopped your 5 years to PR clock when you stopped working as you are now not a qualified person. You must be a qp at all times to have a right to reside in the UK. As you have been told by the government department, you don't have a right to reside in the UK anymore. .

    To get PR, you needed to have been in the UK "continuously and legally" for 5 years.

    and also meet the 3 year spousal avenue,
    Originally posted by Big46
    That is nothing to do with EU rules as that is (or rather was until July 2012) UK immigration rules. You must follow EU rules at all times.

    All that being married to a British citizen would have meant for you if you had got PR, was that you wouldn't have had to wait another year after PR to apply to be British, - subject to all the other rules that must be met for citizenship - Good Character, English test, Life in the UK test etc. Being granted BC would have also meant that you wouldn't have to see what you might be offered under Brexit, when EU laws will end in the UK.
    Last edited by OhWow; 15-10-2016 at 7:34 PM.
    • OhWow
    • By OhWow 15th Oct 16, 7:05 PM
    • 58 Posts
    • 52 Thanks
    OhWow
    • #9
    • 15th Oct 16, 7:05 PM
    • #9
    • 15th Oct 16, 7:05 PM
    The letter should include information about why you failed the HRT. If there is no explanation, or you don't understand the explanation, I would suggest calling them to discuss the situation.
    Originally posted by TELLIT01
    Their letter is quite clear, he hasn't retained "worker status" (as he isn't looking for work and isn't about to give birth) and therefore he has no right to reside in the UK. No"right to reside" in the UK - because he isn't following the EU free movement treaty rights anymore that allowed him to be in the UK. The HRT failed as the OP has no right to be in the UK..

    The OP is an EEA citizen and should be aware of the the rules of free movement that allows him to reside in another EEA country. The UK even publish these rules on the internet. Three months only in the UK and then an EEA citizen must be a "qualifed person" at all times to have a "right to reside" in the UK. They also list what a qualifed person is.
    Last edited by OhWow; 15-10-2016 at 7:40 PM.
    • TELLIT01
    • By TELLIT01 15th Oct 16, 8:47 PM
    • 2,628 Posts
    • 2,524 Thanks
    TELLIT01
    Thanks for the very detailed breakdown of the situation OhWow. Even when I worked on benefit processing I was glad to be able to hand over HRT decisions to specialist Decision Makers.
    • Big46
    • By Big46 15th Oct 16, 9:15 PM
    • 7 Posts
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    Big46
    I think you are missing the point ohwow
    Last edited by Big46; 16-10-2016 at 5:18 AM.
    • Diary
    • By Diary 15th Oct 16, 9:50 PM
    • 416 Posts
    • 452 Thanks
    Diary
    Have you really talked to your wife about this, if she refuses to claim ESA and provide you with a bit of peace of mind how does she expect you both to live? Does she even think about how it's affecting you?

    I think most if not all councils have an obligation to do assessments when there is a person claiming carers allowance in the household - have you made sure you have had this assessment?
    .Master Apothecary Faranell replied, “I assure you, overseer, the Royal Apothecary Society dearly wishes to make up for the tragic misguidance which ended so many lives. We will cause you no trouble. We seek only to continue our research in peace.
    • Big46
    • By Big46 15th Oct 16, 10:04 PM
    • 7 Posts
    • 0 Thanks
    Big46
    Hi Diary,

    She really isn't doing this to cause upset...
    Last edited by Big46; 16-10-2016 at 5:18 AM.
    • OhWow
    • By OhWow 15th Oct 16, 10:53 PM
    • 58 Posts
    • 52 Thanks
    OhWow
    I think you are missing the point ohwow
    You are quoting EU rules which are correct but under spousal (married to a British citizen) I am at the 3 yr line (together before the law changed In 2012) that states I have right to residency as a spouse and I am now entitled to indefinate leave to remain! (I am not on the perminent residency route for EEA citizens).
    Originally posted by Big46
    You are getting muddled. You cannot mix UK immigration rules and EU treaty rights of free movement rules. I explained above that the 3 year rule is UK immigration laws. ILR is a UK immigration laws and nothing to do with EU rules. PR is EU rules. Don't mix the two. You cannot use you being married to a Brit, to claim PR.

    Besides, since July 2012, those on a spouse visa (UK rules) now have to wait 5 years to ILR (UK rules) not 3. And that 2012 date you spoke about, was for UK rules spouse visas, applied for before July 2012, and nothing to do with getting "together" before that date. Not that any of this matters for you as you are trying to use EU laws to be in the UK.


    Citizens advice informed them, I became unemployed through no fault of my own (the government care services were unable to find an adequate carer for my wife so I had no choice but to take over).
    Originally posted by Big46
    Sorry to be blunt but there is no "taking care of my wife, qualified person' either. I'm not even sure how you are able to take Carers Allowance


    I also am still seeking work and work 8 hours a week for another company,
    Originally posted by Big46
    You really need to read up on free movement rules.

    You didn't answer whether you had a CSI during all the time you said you were a self sufficient qualified person. If you didn't then you were not a self sufficient qualified person, had no right to reside in the UK and that time can't count towards PR anyway


    Citizens advice are arguing the disability rule and the fact that I have been put at an unfair advantage.
    Originally posted by Big46
    The only disability rule I have heard about is if it is the EEA citizen who becomes too ill to work. Although that was a European Court ruling and may not fly with Brexit. I hope the CAB find something for you to enable you to stay in the UK

    I go from £600 to £61 a week and they are now wanting my wokers status alongside everything else I have lost.
    Originally posted by Big46
    They don't want worker status, they were just stating that to show that you have not retained worker status either, as you are not being a qualifed person. They were showing why you had failed the HRT. Which was because you do not have a "right to reside" (no right to be) in the UK.

    It's obvious that you have not read up on free movement and you really should have done that before you moved to another EEA country and kept up with all the changes.
    Last edited by OhWow; 15-10-2016 at 11:32 PM.
    • Big46
    • By Big46 15th Oct 16, 11:25 PM
    • 7 Posts
    • 0 Thanks
    Big46
    maybe I am not explaining this right... I am a dual citizen Italian/American.
    Last edited by Big46; 16-10-2016 at 5:19 AM.
    • Big46
    • By Big46 15th Oct 16, 11:35 PM
    • 7 Posts
    • 0 Thanks
    Big46
    Sorry about forgetting to answer your question again yes I had full health insurance and although I have a GP I still hold private health care to this day.
    • OhWow
    • By OhWow 15th Oct 16, 11:36 PM
    • 58 Posts
    • 52 Thanks
    OhWow
    Thanks for the very detailed breakdown of the situation OhWow. Even when I worked on benefit processing I was glad to be able to hand over HRT decisions to specialist Decision Makers.
    Originally posted by TELLIT01
    The UK has an easy to read, up to date guideance for the UKVI staff on what a "qualified person" is, especially as so many are now trying for citizenship since the Brexit vote. I'm sure you would have been able to work it out from that.
    Last edited by OhWow; 15-10-2016 at 11:40 PM.
    • OhWow
    • By OhWow 16th Oct 16, 1:49 AM
    • 58 Posts
    • 52 Thanks
    OhWow
    Ohwow maybe I am not explaining this right... I am a dual citizen Italian/American.
    Originally posted by Big46
    I can see what you are trying to say. However, you chose to get Italain citizenship to enter the UK under EU rules, which meant you avoided the UK immigration rules of having to pay for a Visa. Therefore it is that EU path you chose, that you stay on.

    The spousal/partner visa for people who are together before July 2012 applies to me (we have been together since 2010).
    Originally posted by Big46
    No, the UK immigration rules for the spouse visa is not just for those who were "together" before 2012. As I have already said, it is nothing to do when when you got together. I don't know where you have got that idea from.

    What happened in 2012 was for UK visas. You are not on a UK visa as you chose the EU path to enter the UK.

    For UK visas,
    For all applications after that date to enter the UK on a family visa -
    they required a higher financial sponsorship requirement:
    the 3 years to ILR was changed to 5 years and now over 2 visas:
    ILE was removed (ILE was if they had been married for 4(?) years outside the UK).

    It doesn't matter when they "got together" or even if they had been married for 50 years, because for UK family visa applications to enter the UK from that date, the rules changed.

    I can go down the indefinate leave to remain route,
    Originally posted by Big46
    UK immigrtaion rules. You would need to have been on UK visas for ILR

    I didn't need a spousal visa because I am a dual national and have the right to be here under those terms.
    Originally posted by Big46
    You chose the EU route to the UK.

    I am not the one mixing the two together it's the Job centre that is!
    Originally posted by Big46
    They are correct. You chose the EU rules to be in the the UK.

    They are applying the HRT test after they have been told by citizens advice and my immigration Lawyer that I am in two circumstances due to dual nationality and the American side married to a British citizen who is disabled bypasseses ILR terms on income grounds (18,600).
    Originally posted by Big46
    UK immigration rules.

    On the terms for the spousal visa if you are a couple/married in an established relationship prior to July 2012 the 3yr route applies.
    Originally posted by Big46
    UK immigration rules, Explained above.


    The only time these two laws are crossing is under my reason for no Visa previous to application for ILR (EU Citizen)
    Originally posted by Big46
    There is no crossing. Those in the UK under EU rules cannot have ILR, ILR is for those on a UK visa.

    (which JC are classing to be the same as perminant residency and applying HRT)
    Originally posted by Big46
    They are not applying PR as you don't have PR. They are applying EU rules of being a qualified person at all time because you are in the UK under the EU rules.

    and under applications for ILR for spouses of disabled British citizens grants you the right to reside.
    Originally posted by Big46
    This is wrong in so many ways.

    'Right to reside' is EU rules. The path you are on. You have right to reside if you are a qualified person at all times.

    EU citizens cannot have ILR as that is for those who have been on a UK visa for 5 years. EU citizens try for PR.

    Being a disabled Brit does not mean their non-EU spouse is given ILR. They get a visa, not ILR, but the financail requirement for that visa is reduced if the Brit is on PIP. Their non-EU citizen spouse still needs 5 years on a visa for ILR.


    I don't want the EU Law to apply to me
    Originally posted by Big46
    That's the path you chose to enter the UK and are the rules that apply to you.


    but the fact still remains even under that I am still legal.. I finished work 2 weeks ago and have been actively seeking alternate work which grants me 6 months of workers status (you don't need to be claim JSA for this you just need to state in your application to income support that you are seeking work and provide evidence of it)...
    Originally posted by Big46
    How can you claim income support or carers allowance when you must be a qualifed person at all times to have a right to reside in the UK under EU rules?

    Being a jobseeker is showing proof of your jobseeking. But it appears from what you told the benefits agency, that you are not jobseeking as you are caring for your wife, claiming CA and trying to claim IS too.

    I have also worked in my other job for 2 years (8hrs per week) and as it is a legitimate job that the govermant expects you to be paid for it also can apply the right of "Worker status"
    They have 2 years of p60's for this job also.
    Originally posted by Big46
    That depends on how much you earned each week as you must meet the MET (Minimum Earning Threshhold) to be a worker qualified person in the UK.
    Last edited by OhWow; 16-10-2016 at 2:28 AM.
    • Diary
    • By Diary 16th Oct 16, 10:21 PM
    • 416 Posts
    • 452 Thanks
    Diary
    Hi Diary,

    She really isn't doing this to cause upset...
    Originally posted by Big46

    I'm very sure she isn't doing it to cause herself any upset- that comes across very clearly.
    .Master Apothecary Faranell replied, “I assure you, overseer, the Royal Apothecary Society dearly wishes to make up for the tragic misguidance which ended so many lives. We will cause you no trouble. We seek only to continue our research in peace.
    • SnooksNJ
    • By SnooksNJ 17th Oct 16, 7:45 PM
    • 602 Posts
    • 1,007 Thanks
    SnooksNJ
    maybe I am not explaining this right... I am a dual citizen Italian/American.
    Originally posted by Big46
    Great, then fly to the US and apply for a spousal visa.
    A little caveat. It's expensive, there are income requirements, and no access to public funds.
    Which is why I supposed you decided to go the EU route.
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