2011 10 Migrants

Tuesday 1 November 2011

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Official Guidance on EU Law

The DWP have issued new guidance on the CJEU decision in Secretary of State for Work and Pensions v Maria Dias (ECJ Case C-325/09). The guidance to decisions makers in Memo DMG 23/11 – Permanent Right to Reside – Recent CJEU Decision (click here for link) advises that (i) a residence permit does not confer a right of residence during the period when the claimant is out of the workforce but (ii) where a claimant holds a residence permit, even thought the claimant is economically inactive, it can ensure that a claimant preserves a right of permanent residence already acquired so long as the gap is less than two years. Under the heading ‘Effect of the Decision’ the Memo at para 10 states:

The decision only affects cases where a question arises as to whether a claimant has completed the required period of lawful residence prior to 30.4.06 and only concerns periods falling before 30.4.06. If a claimant completes five years of lawful residence prior to 30.4.06 and this is followed by a continuous period of more than two years (ending before 30.4.06) during which the claimant had no right to reside under those Community Law instruments which were repealed and codified by the Citizenship Directive then the right to permanent residence was lost. In practice therefore the period without a right to reside must start on or before 30.4.04.

Note Once a permanent right to reside has been acquired it can only be lost after 30.4.06 by actual absences from the UK of more than two years.

In DMG Memo 24/11, (click here for link) the DWP advises that the Immigration (European Economic Area) Regulations 2006, has been amended to take account of a decision of CJEU which held that the ‘extended family member’ can now be living in any state with the EEA national before moving to the UK.

Commission requests United Kingdom to end discrimination of EU nationals residing in the UK regarding their rights to specific social benefits

The Commission has issued a press release in which its states (click here for link) ;

"EU nationals who habitually reside in the UK are subject to the so-called 'right to reside' test to qualify for certain social security benefits. As this test indirectly discriminates non-UK nationals coming from other EU Member States it contravenes EU law. This is why the European Commission has requested the United Kingdom to stop its application. " (cl"i ( ("

The DWP has released an Urgent Bulletin HB/CTB U5/2011(click here) to its decision makers that advises -

'You may have seen a statement issued by the European Commission declaring that the right to reside test breaches EU law. DWP will be responding to the Commission on the points raised in their statement. You should continue to make right to reside decisions as normal.

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