Soon to be single-mum from the EU

quarky

Hello,

A friend is going through a divorce. He is English, she is Polish, although she has been here for 20 years. They have two kids (11 and 6 I think) so she hasn't worked during that time (but did previously). The family home is owned without a mortgage.


If they split, obviously she will get maintenance from him for the kids, but will she get anything else to help out?


Sorry, I've never been on benefits so have no idea what to tell him, and he is worried that she might end up forced to leave the country with his kids.


Thanks

RAS

Check https://www.turn2us.org.uk for benefits.

Given the age of the younger child, she may have to start looking for part-time work ASAP because of the rules on tax credits. She can get some support for childcare costs.

MissMoneypenny

If she didn't enter the UK on a spouse visa under UK immgiration rules, then they will ask her for proof of her right to reside in the UK under EU treaty rights of free movement. As she isn't working then she isn't exercising her treaty rights now, but might have already got PR automatically before if she followed all EU rules. If she wants to check her status she can apply to UKVI for PR and see what they say. It will cost about £80. If she has got PR, she can then give a copy of that to the benefits offices to prove that she can have benefits.

There has just been another case where all of an EU nationals benefits were removed including ESA and HB because, despite her being in the UK for 20 plus years and was married to a Brit, they discovered she wasn't exercising treaty rights and therefore didn't have a right to reside in the UK.

Quite a few like that have popped up as EU citizens want to get British citizenship in case the UK leaves the EU, but despite their years in the UK they find they never had a right to reside. Or they lost their right to reside years ago when they stopped being a qualified person under treaty rights

Qualified persons for treaty rights are only - working, jobseeker (just for 6 months), student (with health insurance to pay the NHS), self sufficent (with health insurance to pay the NHS).

If she entered the UK under UK immigration laws, as I assume she must have as Poland wasn't in the EU 20 years ago, and she has ILR (Indefinate Leave to Remain visa) then she can claim benefits as a British person can. PR (Permanent Residence) is the EU version of ILR.

quarky

Thanks for the great replies, very informative, and a lot to pass on!

MissMoneypenny

quarky wrote: »

Thanks for the great replies, very informative, and a lot to pass on!

Remind her too that the Polish also had to register with the Workers Registration Scheme and keep to all those rules, to be exercising their free movement treaty rights in the UK as a worker. That WRS ran for 7 years, so from 2004 when Poland joined the EU until 2011, she had to comply with the Workers Registration Scheme at all times.

You said she worked but if she didn't comply with all the rules of the WRS during 2004 - 2011 then she wasn't exercising her treaty rights of free movment as a worker. That would mean that her 5 years of continuously exercising treaty rights in the UK to obtain PR, could only have started after the WRS ended for the Polish in April 2011. That would mean she should still be execising treaty rights now, at all times, to continue to have a right to reside in the UK.

Only those with PR and EU workers can claim UK benefits. The UK states that an EU worker are only those who are in work and earning at least £155 each week to be paying NICs (but check that amount doesn't rise as that affects all EU workers in the UK).

The other problem with if she hasn't got PR and isn't an EU worker, is using the NHS without paying. The UK brought in the new Immigration Act 2014 and part of that new law was designed to protect the NHS from those who use the NHS for free when they should be paying.

This means that since 6 April 2015 the staff now have to check who can use the NHS without paying or their trust gets fined. If they bill, then their trust keeps that money and in some cases under that new law, they can add 50% to the bill and the trust keeps that money too. They now have the system to check who is in work and paying NICs and are therefore allowed to use the NHS for free. As her children are British by birth through their father, they can use their NHS for free.

If she hasn't got PR and claims she is exercising treaty rights as a self sufficient (as her Brit husband is keeping her) then the UK have no duty to provide her with free NHS and she must have insurance to pay. EU Self Sufficients and Students are not allowed free NHS or UK benefits.

As I said, the easiest way to check if she has PR is to apply for this with UKVI and see if they agree that she has obtained PR. If she has, she gets free NHS and can apply for UK benefits. Perhaps also ask her which UK visa she was on 20 years ago as Poland only joined the EU in 2004. The UK visa she has might be ILR.

pmlindyloo

quarky wrote: »

Hello,

A friend is going through a divorce. He is English, she is Polish, although she has been here for 20 years. They have two kids (11 and 6 I think) so she hasn't worked during that time (but did previously). The family home is owned without a mortgage.


If they split, obviously she will get maintenance from him for the kids, but will she get anything else to help out?


Sorry, I've never been on benefits so have no idea what to tell him, and he is worried that she might end up forced to leave the country with his kids.


Thanks

From what you say it seems that she is still living in the family home? If this is so then it would be sensible to finalise the divorce agreement as she would then know her financial position. I am thinking that she may be entitled to stay in the family home until the children are older or some other arrangement can be worked out.

The divorce arrangements/agreement are at the centre of your friend's 'dilemma' and she should seek some advice as to how these can be achieved. She could use a solicitor or they could both agree arrangements through a Family Mediator and then get the agreement legalised by a solicitor. It might be sensible for her to visit CAB.

If she has to move out for some reason that you haven't mentioned then she should put in a claim for JSA if she can't find a job. Obviously finding a job should be her first priority. This would then put her in a better position if she needs to claim other benefits as she would be exercising her 'treaty rights' if she needs to.

If she is in the position of needing to claim benefits in the near future then the quickest way is for her to apply for JSA. They will soon tell her whether she is eligible or not and if she isn't then the reason for this. Then she can try to address any problems with some help from CAB (for example)

So first priority is to get some advice about the divorce.

MissMoneypenny

pmlindyloo wrote: »

So first priority is to get some advice about the divorce.

And apply to UKVI for PR as that isn't a quick process as they check every application now. But at about £80 that's cheaper than asking a solicitor to work out her immigration status and with no worry about the solicitor giving her the wrong information.

With her PR in hand she can prove she can claim UK benefits, doesnt't have to comply with exercising EU treaty rights and can prove she can use the NHS for free.

OR

She might already have ILR under UK laws if she checks her passports and looks at her visa, as she lived in the UK before Poland joined the EU. ILR would mean she can prove she can claim UK benefits, doesn't have to comply with exercising EU treaty rights and can use the NHS for free.

MissMoneypenny

pmlindyloo wrote: »

If she has to move out for some reason that you haven't mentioned then she should put in a claim for JSA if she can't find a job. Obviously finding a job should be her first priority. This would then put her in a better position if she needs to claim other benefits as she would be exercising her 'treaty rights' if she needs to.

Not anymore: that's been stopped. As I have already said, only worker qualified persons can now claim other benefits from the UK i.e. housing and benefits for their children.

EU jobseekers can no longer claim other benefits from the UK. They now have to claim benefits from their own EU countries for their children and for housing while they look for work in the UK.

Claiming other benefits such as housing and benefits for their children, was stopped in Janauary 2014. About the same time when the UK limited EU jobseekers to 6 months as a jobseeker before they lose their right to reside in the UK. Even for those that have already worked in the UK and have lost their job as they too now lose their right to reside in the UK after 6 months as a jobseeker qualified person.

Those already in the UK before the new rules for EU jobseekers in January 2014, from the start of 2015 have the same rules. They have either had or will have in due course, all their other UK benefits stopped too, incuding jsa, housing benefits and any benefits for their children. And the councils have no duty to house those that have no right to reside in the UK.
https://www.freemovement.org.uk/existing-eea-migrants-at-risk-of-destitution-following-the-removal-of-housing-benefit/
https://www.freemovement.org.uk/benefits-to-be-withdrawn-from-eea-jobseekers-previously-unaffected-by-the-january-2014-changes/

I'm not sure if the loss of other UK benefits applies to those EU citizens on contribution based JSA, but they too now only have 6 months to reside in the UK as a jobseeker qualified person under EU treaty rights.

From March 2015, new rules came in again which means new EU arrivals have to contribute to the UK before they can get any benefits (including the JSA benefit) from the UK.
https://www.gov.uk/government/news/eu-jobseekers-barred-from-claiming-universal-credit