November 2018 – Right to Reside Challenges

03/11/2018

In two recent cases, the Upper Tribunal considered whether a person retained their right to reside as family members when that relationship came to an end.

In the first case an Italian male sought Pension Credit on the basis that he had retained a right to reside following divorce from a British citizen. The court dismissed the appeal, stating that EU Directives (specifically Article 13) did not provide a simple continuation of the right to reside on divorce. Instead, they provided that any independent right to live and work in the UK was not ended by divorce – for example rights established by being a worker in the UK. In particular, the judge held that if the claimant was correct that the wording of the Article provided for the continuation of residence without further conditions, this would mean that anyone in such circumstances would effectively inherit a right to reside from their spouse on divorce. This would almost amount to a permanent right of residence achieved without the necessity of complying with the conditions of acquiring that right and regardless of the burden which the person imposes on the host state.

In a second case, the claimant was a Portuguese national whose late wife had a right to reside in the UK as a worker before her death. He too sought to retain entitlement to benefits (in this case income related Employment Support Allowance) on the basis of retained rights to reside as a family member. In a similar judgement, the court held that Article 12 did not provide for ongoing residency after the death or departure of a spouse. Rather, any other independent right to reside was not affected by the death of their spouse.

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