EEA residence rights: tricky cases

As the countdown to Brexit begins, EEA nationals living in the UK are rightly expressing anxiety about how their legal status in the UK will change. The Government’s web page entitled “What you need to know” still contains confusing and contradictory information, and many people remain uncertain about their future.

However, the situation is more complicated for some people than for others. This post starts a series of “tricky” cases, anonymised from my own files.

1. The victim of domestic violence

I received an enquiry from an EEA national, A, who had separated from her EEA national husband. They had been married for 8 years, and lived in the UK for the last 6.

The relationship came to an end because of A’s husband’s violence. She and their son were forced out of the family home. She managed to take a few items belonging to her husband, including a copy of his passport and a few old P60s and bank statements. However, she has not been in contact with him since she left.

As she is a full-time carer for her son, A has not worked in the UK. She and her husband are still married and have not divorced.

A applied for a Document Certifying a right of Permanent Residence (“DCPR”), based on 5 years of residence in the UK as the family member of an EEA national. Her application was refused because she did not supply her husband’s original passport or national ID card, and because she could not provide enough evidence that he had been working continuously in the UK for a 5-year period.

The Home Office does provide guidance to its caseworkers about how to deal with applications from people who can’t provide complete documentation because they have been the victim of domestic violence. The current version of this guidance is in the guidance on “Free movement rights: direct family members of EEA nationals“. It tells caseworkers:

“You must take a pragmatic approach if the applicant provides proof to show they were the victim of domestic violence and cannot provide evidence relating to their EEA national sponsor’s nationality or free movement rights. Asking them to do so in these circumstances could put the applicant at risk.” [p. 19]

Caseworkers can make direct enquiries of the EEA national sponsor’s employers, or HMRC, to establish their work history. Nevertheless, A’s application was refused without this option being taken.

A has appealed to the First Tier Tribunal. At the Tribunal hearing she will be able to give witness evidence, including what she knows about her husband’s work history. If the judge finds her evidence credible, this could win the case.

Information about her husband’s employment history has also been requested directly from HMRC. Although the Data Protection Act would normally prevent data being released to a third party, the Act provides an exemption in cases where the information is necessary to assert a legal right, or to take legal advice. However, HMRC could still refuse to disclose the information if they do not deem its disclosure “necessary”.

Finally, an application might be made to the Tribunal for directions that the Home Office should use its powers to obtain the relevant evidence prior to the hearing.

Permanent residence status is important to A, as a full-time carer who might need to prove that she is entitled to benefits to support her and her son. Her residence status also has implications for her son’s ability to register as a British citizen.

Given the hurdles that A has already had to overcome in proving her right to live in the UK, she does not have a lot of confidence in the Government’s assertion that, as an EEA national, she “does not need to do anything now”. If she had decided to wait until 2021 to apply for “settled status”, what value would the as-yet-unknown application process put on her experience of living in the UK?

Coming up: 2. The long-time UK resident

If you have a question about your right to reside in the UK under EU law, please contact me.

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