Failed habitual test

AnnaRenes · 8 August 2019 at 9:15PM

Hi there,

I am hoping that you guys can help me. Long story short I have been living in the UK for the last 8 years. I have worked pretty much all the way up until February this year with an odd break due to changing jobs etc. I have never had to rely on the system, however due to unforeseen circumstances I had to apply for benefits in May. I wanted to avoid doing it but had no other choice. I had been struggling to find a job and had a bit of problem with my health. Somehow I have managed to fail the test twice. The first time the reason was " You don't have/ you haven't demonstrated a right to reside, the 2nd time was "inactive" As I have mentioned before I have worked and also studied in Scotland ever since I have moved here and find it a bit bizarre especially since I know of people who have been here a lot less and have worked less than me and are getting the support.

I didn't want for things to come to this but I have been here for long enough I think to be able to get some support, I wil be asking for mandatory reconsideration, just wanted to check who rights do I have, if any?

Many thanks

Robbie64 · 8 August 2019 at 9:21PM

I would advise that you speak to Citizens Advice Scotland who will either be able to help or if not will be able to direct you to an appropriate advice agency

https://www.cas.org.uk/

Edit: I posted the website address for Citizens Advice Scotland because you mentioned being in Scotland but if you live elsewhere in the UK the main website for Citizens Advice is https://www.citizensadvice.org.uk/

TELLIT01 · 8 August 2019 at 9:46PM

There are strict criteria regarding period of work which have to be fulfilled and I suspect it may be that area which is the problem. You do need expert advice so approaching Citizens Advice is certainly a good first step.

calcotti · 8 August 2019 at 9:55PM

If you are an EU National you should look at whether you can obtain settled status. Settled status will give you a right to reside which is half the HRT.

https://www.gov.uk/settled-status-eu-citizens-families

It seems to be easier to get settled status than to convince the DWP. Gaps in your employment history count against you for HRT - I am not sure they do for settled status as long as you can prove you were in the UK.

Alice_Holt · 9 August 2019 at 9:36AM

On the assumption that-
a) UC is the benefit in question;
b) You are from an EEA country -

https://www.citizensadvice.org.uk/benefits/claiming-benefits-if-youre-from-the-EU/before-you-apply/check-if-you-have-the-right-to-reside/

Basically, the main route (apart from now applying for settled status), is
being a worker,
having retained worker status, or
having worked, job sought here for 5 continuous years and therefore gained permanent right to reside.

Start by scheduling out your work history in the UK, back this up with all the evidence you have / can get - P60's, P45's, payslips, NI records, etc, etc.
If you have 5 (almost) continuous years and can demonstrate this, then your appeal should succeed.

If you are temporarily ill and left a job because of this you may have retained worker status, and your appeal may succeed.

Otherwise, it may be a question of getting settled status, or working and then re-applying.

Do get advice, as this is indeed a complicated area.

AnnaRenes · 9 August 2019 at 10:31AM

I have given them a history of my work from 2013-2019 and I still somehow managed to fail

TELLIT01 · 9 August 2019 at 11:37AM

AnnaRenes wrote: »

I have given them a history of my work from 2013-2019 and I still somehow managed to fail

What gaps are there in your work during this period?

OhWow · 10 August 2019 at 11:15AM

Under the EU 2004 Directive of Free Movement of Workers, you must be what the EU calls a "qualified person" every day, to have "a right to reside" in that EEA country and Switzerland. Just living in another country is not being an EU "qualifed person".

Under that Directive, if you stop being a "qualifled person" (even for a day) and you don't leave that country, your 5 year clock to the EU's PR in that country has ended.

If you remain in that country withiout being a "quailifed person" and then start to be a "quailifed person" again, your 5 years to PR clock starts again at zero.

If you had left as soon as you stopped being a "qualified person", you had up to 6 months outside that country to keep your 5 years to PR clock going, as long as you returned to that country within this time and resumed being a "qualified person" every day.

This is all clearly written in the EU's 2004 Directive and this is what you were following to use the EU's "Free Movement" to another EEA country or Switzerland.

If you were applying for benefits from the UK when you were not being a "qualified person", or did not have the EU's PR in the UK, you did not have a "right to reside" in the UK under the EU's 2004 Directive. This would have been why you failed the HR test to be given UK benefits, because you did not have a "right to reside" in the UK.

"This document explains how UK Visas and Immigration assesses if an European Economic Area (EEA) national is a qualified person."
https://www.gov.uk/government/publications/european-economic-area-nationals-qualified-persons

tacpot12 · 10 August 2019 at 11:49AM

Unfortunately, the periods where you were not employed have reset the clock. If you had registered as unemployed, when you left a job to go to a new job, you would have retained your status. The best think you can do now is apply for Settled Status. With luck, this will come through quite quickly and you will be able to claim UC.

Alice_Holt · 10 August 2019 at 12:08PM

tacpot12 wrote: »

Unfortunately, the periods where you were not employed have reset the clock. If you had registered as unemployed, when you left a job to go to a new job, you would have retained your status..

It does depend on the length of the gaps. A tribunal will generally accept small gaps between employment, even if the claimant was not signed onto JSA, especially if the claimant can explain / show they were activity looking for a job (but not via JSA).

It's a pity the OP hasn't come back with more details, or answered Tellit's Q.
It sounds like the temporary illness route to retaining worker status may be possibility for the OP - but they do to give more info for us to explore this option.

OhWow · 10 August 2019 at 12:13PM

tacpot12 wrote: »

Unfortunately, the periods where you were not employed have reset the clock. If you had registered as unemployed, when you left a job to go to a new job, you would have retained your status. The best think you can do now is apply for Settled Status. With luck, this will come through quite quickly and you will be able to claim UC.

In 2012 the UK limted a "jobseeker quallified person" to 6 months for their EU "right to reside" in the UK. These now had to prove they were looking for jobs during this time and those jobs had to be something they could get based on their experience and education. They didn't have to register for JSA, but it sounds like the OP tried to get UK benefits but didn't have a "right to reside" in the UK under the EU's 2004 Directive for free movement and failed the HR?

Those arriving in the UK could now not have JSA from the UK for the first three months of those 6 months. All other benefits they used to get as "jobseeker qualified persons" were also stopped. eg Housing, benfits for their children, etc.

Then this rule was applied retrospectively to those EEA citizens already claiming benefits from the UK as "jobseeker qualified persons".

Only those who were "worker quaified person" in the UK could have JSA and all other benefits, but now only for 6 months. The rules for what a "worker qualified person" is was changed too, to ensure their work was "genuine and effective".

Failed habitual test

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