Failed Habitual Residence Test

Firzen

Hi all,

So my story is that in October 2016 I have moved in the UK from Czech Republic. In 2017 I started to work here, and in April 2018 I walked long pilgrimage to Santiago de Compostela, which was about 1700 miles from Edinburgh where I live and took 5 months.

I have struggled at work my whole life, but I have always worked basically. I am 27 and worked 6 years so far - as Software Developer, and then as Support Worker as well. I worked 1 year and 1 month in the UK so far. Anyway.. during my pilgrimage I have explored the causes of my problems in life in general, and decided to seek help with mental health as soon as possible after I return back to Edinburgh.

And so I did, and about a week after I returned from pilgrimage (in September 2018), I went to the GP and asked for help. I actually had many suicidal thoughts, and even very simple things were difficult or impossible to do for me at that time. Sadly, my GP wasn't very helpful, and I was kept waiting for appointment for assessment, then pre-therapy appointment, etc. etc.. Combined with my limited ability to go somewhere by bus or talk to people it took me whole months to get at least some help. Actually without my friends I would probably be dead now.

Well, anyway.. I am still not able to work, and even my GP who didn't want to even send me to mental health assessment (because he thought I was just fine) now gave me note that I am "not fit for work" because of "Anxiety with Depression". As having depression is a big fun and quite expensive, I have claimed Universal Credit as my friend suggested me. And so I went there four times to give them all the documents they needed. My work coach told me then to stay in touch with my therapist and gave me contacts for some support groups, and didn't want me to do anything apart from that (not that I would be able to).

Well, and then they kept me waiting again for weeks for the decision about the HRT test. And today I got letter from them that I was not successful with my claim. Actually.. I wasn't expecting to be successful as people like me usually end up homeless or dead, but their explanation is quite strange and I am tempted to make them reconsider it.

The letter says:

We're writing to tell you that unfortunately you're not entitled to Universal Credit.
This is because we have decided that you are a jobseeker.

So I am jobseeker who can't work (of course, my fit note is in the UC system, and jobcentre even took a copy of it). That doesn't make sense, right? Or I am a jobseeker but not entitled to any benefits?? I might not be an expert, but it sounds really, really strange to me.
Could someone help me please and tell me what to do?


Thank you in advance!

Alice_Holt

Universal Credit and the Right to Reside / Habitual Residence test is complicated.

Please look carefully at the Citizens Advice guide:
https://www.citizensadvice.org.uk/benefits/coming-from-abroad-and-claiming-benefits-the-habitual-residence-test/the-habitual-residence-test-an-introduction/what-is-the-habitual-residence-test-EWSNI/

https://www.citizensadvice.org.uk/benefits/coming-from-abroad-and-claiming-benefits-the-habitual-residence-test/if-you-fail-the-habitual-residence-test/what-to-do-if-you-fail-the-habitual-residence-test/

https://www.citizensadvice.org.uk/benefits/coming-from-abroad-and-claiming-benefits-the-habitual-residence-test/eea-nationals-and-the-habitual-residence-test/eea-nationals-claiming-benefits-as-a-former-worker/

You need to have retained worker status to claim UC (i.e be a qualified person).
A possible route to explore is whether you can retain worker status whilst temporarily ill (see last link). However, since it appears you did not leave work because of illness this may be doubtful.
I cannot see another obvious route to qualify, as you have not worked here long enough (5 years) to gain permanent R t R.

I would suggest:
a) Chart out a chronology of your working history / unemployment periods / periods of sickness / etc since arriving in the UK;
b) Then getting advice from Citizens Advice on whether you can challenge the UC RtR decision;

If you cannot qualify as retaining worker status, there are a couple of other potential options -
Finding part time work and applying for UC as a worker in gainful employment; This is likely to be your best option. However, being out of the country for 5 months will complicate matters re Habitual Residence.
Applying for settled status as an EU citizen in the UK. I believe (very) recent legislation enables those with settled status to receive UC.
https://www.gov.uk/settled-status-eu-citizens-families/applying-for-settled-status

In Scotland there is the possibility to apply for a crisis loan:
https://www.citizensadvice.org.uk/scotland/benefits/help-if-on-a-low-income/scottish-welfare-fund-s/scottish-welfare-fund-crisis-grants-s/

Because this is complicated, you need to seek advice on your situation.

John_G_Jones

Someone more expert will hopefully comment with more certainty, but it sounds likely that the result is right, you’ve not worked continuously, have been away for significant time, and don’t meet any of the requirements for the benefits which you are requesting.

huckster

Agree that at the moment based on the information provided, that the HRT decision appears to be correct.

If you have come from another EU country, are not working and have not gained right to claim benefits, then being signed off sick by a Doctor does not make any difference.

My understanding is that it would be very similar in other EU countries, if you were in the same position. You have not lived and worked in the UK for long enough to be able to claim benefit help.

You could contact the Czech embassy office in the UK, as they will have information about what help they can provide to Czech citizens in the UK, who are in your position. If you have gained entitlement to benefits through the Czech system, perhaps they will pay you Czech Government benefits for a period while you live in the UK.

OhWow

If you knew you were too sick to work, then how did you think you would be able to use Free Movement after your pilgrimage to Santiago de Compostela? The EU Directive states that to use Free Movement, the EEA citizen must be what the EU calls a "qualified person" in another country, every day.


The EU Directive says a EEA citizen can visit anothe EEA country for 3 months and after that they must be must be qualified person every day, to have a right to reside in that EEA country.

For the UK, the UK announced a change in the rules in 2014 and a qualified person in the UK is:
a worker qualified person- must now be in gainful employment to have a right to reside. These can then claim UK benefits as per the EU's Directive.

a jobseeker qualified person- for 6 months only in the UK and their first 3 months in the UK is included in that. Now there is no UK benefits for the first 3 months and after that, the JSA benefit only if they prove they are looking for work, but just for 3 months. No access to any other UK benefits anymore, including benefits for housing and for their children.

a Self Suffficient qualified person - living on their own means who must not take benefits from that country and must buy a Comprehensive Sickness Insurance and for all their family members too.
a Student qualified person - must not take benefits from that country and must have a Comprehensive Sickness Insurance and for all their family members too.

hb2

OhWow wrote: »

If you knew you were too sick to work, then how did you think you would be able to use Free Movement after your pilgrimage to Santiago de Compostela? The EU Directive states that to use Free Movement, the EEA citizen must be what the EU calls a "qualified person" in another country, every day.


The EU Directive says a EEA citizen can visit anothe EEA country for 3 months and after that they must be must be qualified person every day, to have a right to reside in that EEA country.

For the UK, the UK announced a change in the rules in 2014 and a qualified person in the UK is:
a worker qualified person- must now be in gainful employment to have a right to reside. These can then claim UK benefits as per the EU's Directive.

a jobseeker qualified person- for 6 months only in the UK and their first 3 months in the UK is included in that. Now there is no UK benefits for the first 3 months and after that, the JSA benefit only if they prove they are looking for work, but just for 3 months. No access to any other UK benefits anymore, including benefits for housing and for their children.

*a Self Suffficient qualified person - living on their own means who must not take benefits from that country and must buy a Comprehensive Sickness Insurance and for all their family members too.
a Student qualified person - must not take benefits from that country and must have a Comprehensive Sickness Insurance and for all their family members too.

I am assuming that this is what the decision notice referred to when the OP says they were told they couldn't get UC because 'they are a jobseeker'?

* my underlining

WhenIam64

The OP and others might want to read the article below. The issue appears to turn on whether the incapacity to work is deemed to be temporary (ie. temporarily absent from work) or permanent (i.e. will be seeking work but not able to achieve it).

The way the EU legislation works is that you have the right to work / seek work but only if that will actually result in you working. With the job/job offers comes the right to reside. The HRT it says does not apply to EU nationals in work. Only those not working.

So by being a jobseeker, you are subject to the HRT and the time limits/scope of HRT that applies.

The article is clear if you can get the logic of what is being said.

https://medium.com/adviser/right-to-reside-and-incapacity-for-work-a8a38c6f9f8f

OhWow

The other problem for some EEA citizens wanting to use EU laws in the UK, will be Brexit. A no deal Brexit will be stricter as the UK will decide because there won't be a Withdrawal Bill.

OhWow

WhenIam64 wrote: »

So by being a jobseeker, you are subject to the HRT and the time limits/scope of HRT that applies.

And they have to adhere to the time limit in the EEA Regulations, to be an EEA citizen Jobseeker Qualified Person in the UK of up to 6 months, to have the EU right to reside in the UK as a jobseeker. And for that to count, they must show proof they looked for work and that it was work that they stood a chance of getting. And for UK benefits - the UK's JSA benefit only now, and only for 90 days (for the second half of that 6 months) if they can prove they are a jobseeker.



But the OP is not a jobseeker.

Firzen wrote: »

Well, anyway.. I am still not able to work,

EEA citizens were able to claim all UK benefits as soon as they arrived in the UK, for an unlimited time, even if they never worked, but the UK stopped that about 4 or 5 years ago. Then applied that rule retrospectively (to those already claiming before that rule change). Then made stricter rules for what a Worker Qualified Person is, to be able to claim UK benefits, so that one lunchtime session a week in a bar was no longer being a Worker Qualified Person.


Perhaps the OP should contact the CAB to see what his/her options are? They should be able to help him/her.

WhenIam64

But the OP is not a jobseeker.

Suspect they have made a simple binary choice that if the OP is not in work then he/she is a job seeker. The burden of proof then falls to the OP to prove they fall into a different category.

Perhaps the OP should contact the CAB to see what his/her options are?

Not all CAB's have the depth of knowledge to answer this question. In certain areas, there are charities that are benefit specialists. Certainly CPAG reference material should be consulted.

OhWow

WhenIam64 wrote: »

Suspect they have made a simple binary choice that if the OP is not in work then he/she is a job seeker. The burden of proof then falls to the OP to prove they fall into a different category.

The other two types of qualified person are, Student, or Self Sufficient and living on their own means. Both require buying a CSI (Comprehensive Sickness Insurance) to be an EU Qualified Person in another EEA country and neither can have benefits from that country.