Document certifying permanent residence does not create a right to reside

Friday 26 August 2016

MD v Secretary of State for Work and Pensions (SPC) (Residence and presence conditions: right to reside) [2016] UKUT 319 (AAC) (Judge Rowland), 7 July 2016.

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In MD v Secretary of State for Work and Pensions (SPC) (Residence and presence conditions: right to reside) [2016] UKUT 319 (AAC) (Judge Rowland), the appellant was a Cypriot national who had been in the UK since 2000.

He had never worked in the UK. He was awarded income support from 2004 due to incapacity in error - i.e. without the right to reside test being applied.

In 2013 he was issued with a document certifying that he had a permanent right of residence in error. He claimed pension credit two months later - the claim was rejected as he did not, in fact have a permanent right of residence.

The First-tier Tribunal dismissed his appeal.

The UT Judge decided that the issue of permits in Dias (Case C-325/09) was distinguishable from this case, and in any event a document certifying permanent residence was only evidence and does not create a right to reside in itself.

The Judge added that an EU citizen may obtain rights of residence under domestic law where he or she does not have such rights under EU law, albeit that they must make a specific application for that purpose.

The Judge said that given the length of time the appellant had been in the UK and the fact that his wife was a British citizen that he may wish to make such an application.

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