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    • valencia19
    • By valencia19 6th Nov 18, 3:11 PM
    • 9Posts
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    valencia19
    EEA National with British Child - UC?
    • #1
    • 6th Nov 18, 3:11 PM
    EEA National with British Child - UC? 6th Nov 18 at 3:11 PM
    Hi there,

    My daughter was born 9 days ago and we are registering her tomorrow (her father is British) and I have the last 6 months tried to apply for UC and was denied it because I wasn't a qualified person, even though I have been here for a decade and worked, with gaps x 2 years where I went travelling, but there isnt much I can do about that at the moment.

    My question is, what am I entitled to with a child? They told me at the jobcentre when i tried to claim Income Support that I couldnt because my area is 100% UC and once I have had my child, the habitual residency test will slighly differ as there is now a child involved. Does anybody know anything about this? I am not with the father anymore, so I cant go that way.
Page 2
    • valencia19
    • By valencia19 10th Nov 18, 3:08 PM
    • 9 Posts
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    valencia19
    The problem is that I did not work the full 26 weeks, I had hyperemesis gravidarium and was in the hospital for a good chunk of the time I was pregnant and my emplyment was terminated. I feel like im stuck at a dead end,
    • calcotti
    • By calcotti 10th Nov 18, 3:24 PM
    • 935 Posts
    • 644 Thanks
    calcotti
    You might want to read through this to see if your dismissal was legally 'unfair'.
    https://www.citizensadvice.org.uk/work/leaving-a-job/dismissal/check-if-your-dismissal-is-fair/
    Last edited by calcotti; 10-11-2018 at 4:46 PM.
    • xylophone
    • By xylophone 10th Nov 18, 4:32 PM
    • 27,252 Posts
    • 16,309 Thanks
    xylophone
    The problem is that I did not work the full 26 weeks, I had hyperemesis gravidarium and was in the hospital for a good chunk of the time I was pregnant and my emplyment was terminated.
    https://www.pregnancysicknesssupport.org.uk/get-help/employment/
    • welshmoneylover
    • By welshmoneylover 10th Nov 18, 4:40 PM
    • 2,789 Posts
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    welshmoneylover
    Sorry but from what I have understood is that once I have a child who's registered as British, the elements of the Habitual Residency test differs slightly, this is what I was told a month ago by somebody who was looking to help with my case at the jobcentre, that I couldn't do much at the moment but once she was born to re-apply.

    It's strange when people ask me to go back to my mother land or to seek help from there when I havent lived there for a decade, I left Sweden in 2009 and have not paid any tax nor am I entitled to anything as I am not living there. I have built my life in the UK, I have my friends and my *material things' here so why would I move? I have worked and contributed more than a lot of other people in their whole lifetime.

    I have also understood that I can apply for leave to remain status though my daughter as I am a sole caretaker of my child.

    Anyobody knows anything about this?
    Originally posted by valencia19
    Not sure about having material things here would grant you access to benefits or the right to remain.
    Itís what the law decides unfortunately is what you will need to abide by.
    You have contributed to this country for less than 10 years, others have contributed a lifetime and they cannot access benefits either.
    Be happy, it's the greatest wealth
    • calcotti
    • By calcotti 10th Nov 18, 4:44 PM
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    calcotti
    I notice that at the bottom of this link it says it was drafted in 2013 so I don’t know if it is up to date.

    See also https://www.citizensadvice.org.uk/law-and-courts/discrimination/what-are-the-different-types-of-discrimination/pregnancy-and-maternity-discrimination/
    • _shel
    • By _shel 10th Nov 18, 4:49 PM
    • 1,604 Posts
    • 2,793 Thanks
    _shel
    Sorry but from what I have understood is that once I have a child who's registered as British, the elements of the Habitual Residency test differs slightly, this is what I was told a month ago by somebody who was looking to help with my case at the jobcentre, that I couldn't do much at the moment but once she was born to re-apply.

    It's strange when people ask me to go back to my mother land or to seek help from there when I havent lived there for a decade, I left Sweden in 2009 and have not paid any tax nor am I entitled to anything as I am not living there. I have built my life in the UK, I have my friends and my *material things' here so why would I move? I have worked and contributed more than a lot of other people in their whole lifetime.

    I have also understood that I can apply for leave to remain status though my daughter as I am a sole caretaker of my child.

    Anyobody knows anything about this?
    Originally posted by valencia19
    Not strange at all, you clearly didn't make the uk your home because you left for very lengthy periods thus breaking your continuous residence. Your home was obviously somewhere else during those periods.
    • calcotti
    • By calcotti 10th Nov 18, 5:02 PM
    • 935 Posts
    • 644 Thanks
    calcotti
    Immigration law and rights to reside etc are highly complex. I donít being the parent of a British child gives you any automatic rights. I think you have the possibility of some rights if you can demonstrate that if you were forced to leave the uK the child would have to leave to, there would have to be a reason they cannot live with father. Even though the rules may be different for infants rather than children in education. As I say itís complex!
    • Alice Holt
    • By Alice Holt 10th Nov 18, 5:02 PM
    • 2,540 Posts
    • 2,937 Thanks
    Alice Holt
    The problem is that I did not work the full 26 weeks, I had hyperemesis gravidarium and was in the hospital for a good chunk of the time I was pregnant and my emplyment was terminated. I feel like im stuck at a dead end,
    Originally posted by valencia19
    You can retain worker status (so claim UC) if temporarily ill. See also post 8. The combination may enable you to successfully challenge the UC RtR decision.

    Have you asked the DWP to look at their decision again?

    Are you renting? Has your HB stopped following your UC claim. How are you paying the rent?

    Have you sought advice from your local CAB / advice centre on UC RtR?
    Alice Holt Forest situated some 4 miles south of Farnham forms the most northerly gateway to the South Downs National Park.
    • calcotti
    • By calcotti 10th Nov 18, 5:09 PM
    • 935 Posts
    • 644 Thanks
    calcotti
    Found this 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/

    “if you've left work because of the physical effects of the later stages of pregnancy or the aftermath of childbirth you may still be counted as a worker provided that you return to work or find another job within a reasonable period of the birth. During the period when you are not working you may be able to claim means-tested benefits such as income support.”

    No idea what legislation or guidance this statement may derive from.
    Last edited by calcotti; 10-11-2018 at 5:24 PM.
    • Alice Holt
    • By Alice Holt 10th Nov 18, 5:26 PM
    • 2,540 Posts
    • 2,937 Thanks
    Alice Holt
    Immigration law and rights to reside etc are highly complex. I donít being the parent of a British child gives you any automatic rights.....!
    Originally posted by calcotti
    Quite.

    The OP keeps going back to this, when the question (as I understood it), was about entitlement to UC.
    She doesn't seem to be able to grasp that entitlement to UC depends on her situation (not the child's). She needs to show that she has retained her "worker status".
    It is possible that this may be the case - through a combination of factors I have mentioned in my earlier posts. However, since she hasn't replied to me, or given any indication of reading my posts I can't help her any further.

    In her position I would be:
    a) seeking help from an accredited welfare rights organisation about UC RtR;
    b) putting in an MR based retaining worker status through temporary illness, and then the St. Prix pregnancy ruling. (http://cpag.org.uk/content/saint-prix-v-dwp-pregnancy-and-right-reside).

    You are completely correct about a parent deriving rights from their children when the child is in the education system. (http://www.cpag.org.uk/content/%E2%80%98baumbasted%E2%80%99-right-reside-test-claimants-children-education)
    Alice Holt Forest situated some 4 miles south of Farnham forms the most northerly gateway to the South Downs National Park.
    • Alice Holt
    • By Alice Holt 10th Nov 18, 5:29 PM
    • 2,540 Posts
    • 2,937 Thanks
    Alice Holt
    Found this 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/

    ďif you've left work because of the physical effects of the later stages of pregnancy or the aftermath of childbirth you may still be counted as a worker provided that you return to work or find another job within a reasonable period of the birth. During the period when you are not working you may be able to claim means-tested benefits such as income support.Ē

    No idea what legislation or guidance this statement may derive from.
    Originally posted by calcotti
    The St Prix ruling - See my post above for details
    I have suggested this to the OP at post 8, but sadly the OP didn't engage.
    Alice Holt Forest situated some 4 miles south of Farnham forms the most northerly gateway to the South Downs National Park.
    • calcotti
    • By calcotti 10th Nov 18, 5:35 PM
    • 935 Posts
    • 644 Thanks
    calcotti
    Sorry Alice - you know what these long threads get like!
    Last edited by calcotti; 10-11-2018 at 5:38 PM.
    • Alice Holt
    • By Alice Holt 10th Nov 18, 5:46 PM
    • 2,540 Posts
    • 2,937 Thanks
    Alice Holt
    Sorry Alice - you know what these long threads get like!
    Originally posted by calcotti
    Absolutely no reason to say sorry.

    I'm very pleased to have my advice validated by a respected forumite, hopefully the OP may now take more notice of it!
    Alice Holt Forest situated some 4 miles south of Farnham forms the most northerly gateway to the South Downs National Park.
    • calcotti
    • By calcotti 10th Nov 18, 6:00 PM
    • 935 Posts
    • 644 Thanks
    calcotti
    More about the St. Prix ruling here http://cpag.org.uk/content/saint-prix-v-dwp-pregnancy-and-right-reside, although I am always nervous about information which is a few years old given the governments habitat of fiddling with legislation to rectify what they see as legal errors.

    However still confirmed on page 11 of this Home Office document https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/603354/EEA-Case-Law-v4_0.pdf
    Last edited by calcotti; 10-11-2018 at 6:04 PM.
    • Alice Holt
    • By Alice Holt 10th Nov 18, 6:14 PM
    • 2,540 Posts
    • 2,937 Thanks
    Alice Holt
    More about the St. Prix ruling here http://cpag.org.uk/content/saint-prix-v-dwp-pregnancy-and-right-reside, although I am always nervous about information which is a few years old given the governments habitat of fiddling with legislation to rectify what they see as legal errors.

    However still confirmed on page 11 of this Home Office document https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/603354/EEA-Case-Law-v4_0.pdf
    Originally posted by calcotti
    Yep still current. Successfully used in several UC RtR appeals at my local CAB.

    (Also linked to in post 30 - - Haha)
    Alice Holt Forest situated some 4 miles south of Farnham forms the most northerly gateway to the South Downs National Park.
    • calcotti
    • By calcotti 10th Nov 18, 7:19 PM
    • 935 Posts
    • 644 Thanks
    calcotti
    Yep still current. Successfully used in several UC RtR appeals at my local CAB.

    (Also linked to in post 30 - - Haha)
    Originally posted by Alice Holt
    Good to know, and

    I really should have read your earlier post properly myself!!
    • valencia19
    • By valencia19 10th Nov 18, 9:20 PM
    • 9 Posts
    • 0 Thanks
    valencia19
    Alice,

    I do get that the UC entitlement is based on MY situation and not my childs, but the advisor AT the job centre told me himself that once baby is born, Habitual Residency test slightly differs, this is why I am bringing this up, someone who is a professional dealing with these sort of cases for a living should know these things right? That is why I am bringing it up.

    You can absolutely apply for leave to remain visa if you have a child, I don't know how common it is for EEA nationals to do so.
    • Alice Holt
    • By Alice Holt 11th Nov 18, 2:17 AM
    • 2,540 Posts
    • 2,937 Thanks
    Alice Holt
    I do get that the UC entitlement is based on MY situation and not my childs, but the advisor AT the job centre told me himself that once baby is born, Habitual Residency test slightly differs, this is why I am bringing this up, someone who is a professional dealing with these sort of cases for a living should know these things right? .
    Originally posted by valencia19
    Wrong.

    The advisors at the job centre would not necessarily know how you might pass the habitual residence and right to reside tests and therefore qualify for UC . They are not benefit experts. The legislation and case law around RtR & HB is very complex. In addition it varies from benefit to benefit.

    It is a Decision Maker within the DWP who make this decision, and often their decisions are incorrect, or UC not awarded because they do not have all the relevant information.

    Google search using Right to Reside and Habitual Residence Tests for UC Rebecca Walker CPAG, and you will get a detailed document on this subject.
    "Many EEA nationals (as well as others) are being refused universal credit on the basis that they are not accepted as being habitually resident or having a qualifying right to reside - even when they were previously receiving legacy benefits.This workshop aims to summarise the way these residence requirements work within universal credit and consider some of the common reasons for refusal and possible challenges."

    Note that it says " The quality of decision making on right to reside for UC claims is notably worse than it was for legacy DWP benefits. It is therefore important not to assume that a decision that your client does not have a right to reside is correct. Always check to see if their residence rights were not asked about, overlooked, ignored, denied etc....UC decision makers appear to be misapplying guidance on who is a worker or self-employed."

    If even DWP UC decision makers get it wrong, then you cannot rely on a DWP JC advisor - they are not trained to give you detailed benefits advice on UC RtR and Habitual Residence.


    I keep telling you this -
    You need to get an appointment with a benefit welfare specialist to establish if you have a case to retain worker status and therefore be able to claim UC.
    - I cannot stress how important this could be for you.

    Why are you ignoring / not engaging with this advice, and the links I have given you?
    As an EEA citizen, you can claim benefits including UC if you are a "worker" or have retained worker rights. Look at OhWow's post 12 and the link he provided about qualifying person status.
    I can't see anything about qualifying because of having given birth to a British child, perhaps you should seek clarification from the JC advisor, show them the criteria for a qualifying person and ask them to explain further how having a British child might entitle you to claim UC.

    More importantly - Have you asked the DWP to look at their decision again?
    https://www.citizensadvice.org.uk/benefits/universal-credit/problems-with-your-payment/challenging-a-universal-credit-decision-mandatory-consideration/
    See post 30.

    Are you renting? Has your HB stopped following your UC claim. How are you paying the rent?

    Have you sought advice from your local CAB / advice centre on UC RtR?
    Last edited by Alice Holt; 11-11-2018 at 6:16 PM.
    Alice Holt Forest situated some 4 miles south of Farnham forms the most northerly gateway to the South Downs National Park.
    • FBaby
    • By FBaby 11th Nov 18, 5:45 AM
    • 17,019 Posts
    • 41,939 Thanks
    FBaby
    Valencia, I get your frustration. It doesn't make sense that having lived in the UK for many years and having paid taxes you are finding yourself in this situation just because you left the country, maybe not even to go back to your home country, in between.

    But the rules are based on government decisions made at one point of tike and that's how it is. At least your child DOES have British nationality. If they'd been born between 2000 and 2006, they wouldnt even have that because during those 6 years even if born in the UK to a British father, if the EEA mother wasn't married to the father, the child didn't get British nationality. They changed that utterly ridiculous ruling in 2006, but it remains so for children born during that time.

    You can't fight the rules, you can only get proper advice as to whether you fall inside or outside of them.
    • welshmoneylover
    • By welshmoneylover 11th Nov 18, 12:43 PM
    • 2,789 Posts
    • 3,667 Thanks
    welshmoneylover
    Alice,

    I do get that the UC entitlement is based on MY situation and not my childs, but the advisor AT the job centre told me himself that once baby is born, Habitual Residency test slightly differs, this is why I am bringing this up, someone who is a professional dealing with these sort of cases for a living should know these things right? That is why I am bringing it up.

    You can absolutely apply for leave to remain visa if you have a child, I don't know how common it is for EEA nationals to do so.
    Originally posted by valencia19
    Sounds as if the advisor gave you incorrect information. You mentioned previously you had to leave your home due and are staying with friends/ supporters.

    Is this still the case and you are not receiving HB?
    If you are not receiving any income, could the father temporarily help to look after the child if you do not have a permanent home?
    I have heard cases of SS removing children from their parents if they are unable to provide for them.
    Nappies, clothes etc are incredibly expensive.
    Be happy, it's the greatest wealth
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