avice needed

[sweetascandy]

hi all,
im a 27 year old polish born female, ive lived in the uk since i was 8.
i have been schooled and worked here (prior to 2004)...in 1999i married a british national and had 3 children (who are all british born)in 2006/2007 i was self employed with my husband running a gardening business and this is where it gets complicated...when i was married i claimed child tax and working tax credits withouth any problems and also ended up having to claim housing benefit at one point without any problems but in 2007 we decided to go our seperate ways i moved out with my youngest daughter and tried to claim IS i was told that i was a person from abroad (even tho ive been in the uk for most of my life and class myself as british,i alsor recieved my NI number when i was 16 like every1 else and never needed any permission to work etc..))and im not entitled to anything and this was 18 months ago!! im now living with my 3yr old daughter on around £30 per week and no one seems to be able to help me!!! im getting desperate
can any one help,im in desperate need for some information how it will help me untill i can return to work!!!
[/i]

[John]

It comes down to this ... in what way are you exercising your EU Treaty Rights? If indeed you are exercising them!

That is not clear from what you post. You are not working at the moment? Are you signed on at the Job Centre+ office and seeking employment?

[sweetascandy]

hi john,
thank you for you reply ,
i think this is where were having the problem,because since the 2004 rules ive only worked few months as ive been busy being a mum to 3 girls who are all british born to a british father,so i was unable to work because one of us had to look after them full time,i worked prior to 2004 but that does not seem to make much difference ,as for the jobcenter + yes im signed on but have been told im not going to recieve any money from them,but yes im on the books as a work seeker.

agi

[John]

Given that you have been in the UK since the age of 8, about 19 years ago, let's look at all possible angles. Of course Poland was not a member of the EU 19 years ago. Are you able to detail your UK immigration history, since you arrived 19 years ago?

As an aside, and it might possibly be relevant to you, have you realised that today is the 5th anniversary of 10 countries, including Poland, joining the EU? Accordingly if someone has been exercising EU Treaty Rights in the UK for the last 5 years, today is the day they get PR status .... Permanent Residence .... automatically!

[sweetascandy]

hello john and thanks for your reply. i havent been specific enough so i will try to be more clarified.

the facts are these: i was brought to this country voluntarily by my mother aged 8, i was schooled here up to the age of 16 and i received my N.I. number automatically. i did have a 5 yr visa that ran out in 2002 on an old passport but stupidly when i applied for a new passport forgot to apply for a fresh visa therefore up until 2004 according to HOME OFFICE i was an 'OVERSTAYER' here, my mother did get full citizenship i think around 2000 but failed to include me on her application FOR WHICH I WOULD HAVE BEEN 19 YRS OLD. i married an english national in 1999 aged 17, i then had 3 girls and did not work much due to commitments of bringing them up. i have recieved all child benefits and tax credits up until the point when i left my husband in dec 2007 including at some point JOBSEEKERS AND HOUSING BENEFIT as a joint claim. i was advised by the job center to apply for I.S. which was turned down because i was a PERSON FROM ABROAD and my entitledment was NIL, i was then adivsed to claim for JOBSEEKERS which again was denied because of my status. the only benefit i have recieved in almost 18 months is CHILD BENEFIT. i have been to 3 tribunals to have decision overturned all of which found in favour of DWP, HOWEVER THE JUDGE IN THE FINAL TRIBUNAL was more compassionate to my situation and advised me that he would overturn the decision in my favour but knew that they would appeal so allowed more time to gain info to strengthen my case.

it would seem that DWP are using the 2004 law and not considering my previous time here in the uk, surely having already spent 5 yrs here legally from 1997-2002 that i am entitled to right of residence.

my claim made in dec 2007 is some 18 months short now of being considered legally right to reside????

i have a representative from DERBYSHIRE UNEMPLOYED WORKERS CENTER and someone from chesterfield law center working on my case but so far have not been able to put something solid in writing that shows that i have a R.T.R.

desparately need some outside help from anyone who may know which way to go with this.

THANKS EVERYONE...

[John]

it would seem that DWP are using the 2004 law and not considering my previous time here in the uk, surely having already spent 5 yrs here legally from 1997-2002 that i am entitled to right of residence.

This is an extremely good question, and it goes right to the heart of your problem.

From when your country joined the EU, on 01.05.04, up to 29.04.06, the day before new EU regulations came into force, you could have made an application for ILR ... under UK immigration law. Had you done that your time in the UK prior to 01.05.04 would have been taken into account .... except, bad move ..... you were an overstayer and therefore had no right to apply for ILR!

As from 30.04.06, when new regulations came into force, your only theoretical ability (still relevant) is to apply for PR status ... Permanent Residence .... and you could only do that after exercising EU Treaty Rights in the UK for 5 years. As your country joined the UK only on 01.05.04, it therefore follows that PR status is only possibly applicable from 01.05.09 ..... last Friday! As from 30.04.06 time in the UK pre-01.05.04 ceased to count on your 5-year clock.

But that begs the question, have you indeed been exercising EU Treaty Rights in the UK? This is central to your question. Could you please expand upon "i then had 3 girls and did not work much due to commitments of bringing them up"? Since 01.05.04, did you work? When? If the job ceased, did you sign on at the Job Centre? When?

Or were you exercising your Treaty Rights as a Self-Sufficient Person? You might well have been doing that up to the time of your separation, but it is doubtful you have been since then.

How old are your children now? Are you able to go out to work?

[sweetascandy]

hi john, that doesent sound like good news to me.
i had my 1st daughter in 2000, my 2nd daughter in 2003 and my 3rd in 2005. can i just say though that at no time did i intend to overstay my visa nor did i realise that i was doing so and was just a huge mistake on my part by not checking. who would have thought that after all these yrs that it was going to cause me huge problems. due to having to bring up my children my husband worked full time as a lorry driver and welder, although prior to 2004 i did work full time at a nursing home, i then had my 2nd daughter and worked part time after she was born at the same nursing home, during this time i did pay tax and N.I. i continued work in this job on and off for 2 yrs.

so if the government knew i was an overstayer, knew where i lived was i not contacted and still allowed to pay tax and N.I., i also recieved child tax credit during this time.


i was brought here voluntarily by my mother and consider myself to be more british than polish.

after 2004 as far being self sufficient goes, my husband worked as a welder, lorry driver and had his own small landscape/gardening business which is when i worked for my husband doing the accounts/books and taking a small wage for this. would this still qualify as being self sufficient considering that for the last 18m onths i have not received anything from the benefits office???

in 2005 my husband did claim jobseekers for few months during jobs and i was included on that claim and recieved money for this, up until the point when i left my husband we have always received child tax credit and working tax credit.

currently i do not work, i was told not to, my daughter has 3 hrs a day in nursery and i simply cannot afford extra childcare, i have survived only with the help of friends and family for the last 18 months. i cannot receive jobseekers due to my entiltlement.

i have recently contacted child poverty action group for their opinions on this case.

thank you so much john for your help.

[sweetascandy]

hi everyone just thought id post this link for you all to read re: the case of a french woman who has had her case referred to the european court of justice to decide whether or not her time spent in the uk prior to 2004 can be deemed as evidence of 'right to reside', it would seem that there is a law passed in 2006 that states anyone who has spent 5 lawfully prior to the 2004 new eu laws can be classed of having a right to reside.

good news for my case but seeing as ive been here since 1990 and had been here lawfully until 2002 should add some clout to my case.

i hope that you enjoy reading it because this could help in some similar cases.

http://www.administrativeappeals.tribun ... px?id=2439

and

http://www.bailii.org/cgi-bin/markup.cg ... od=Boolean

please tell me what you think.

[John]

it would seem that there is a law passed in 2006 that states anyone who has spent 5 lawfully prior to the 2004 new eu laws can be classed of having a right to reside.

Well not quite! The EU Directive that came into force on 30.04.06 means that someone exercising their EU Treaty Rights in the UK for 5 years, prior to 30.04.06, would automatically get PR status on 30.04.06.

However, this begs the question, were you exercising EU Treaty Rights for 5 years, prior to 30.04.06? Clearly the answer to that is, on your facts, no! Unfortunately. You have told us you are Polish, and as your country only joined the EU on 01.05.04, the answer is clearly ... no!

[sweetascandy]

this is more about whether someone who has spent 5 yrs lawfully prior to 2006 and if you read the links john you will notice that there is also one for people here living lawfully for 5 yrs prior to 2000. so seeing as i was brought here by my mother at what...aged 8 that would mean that up until 2002 when my last visa expired that i had enjoyed 12 yrs of lawful residence in the uk so yes, my case will be heard on those points and if the higher court decides in favour of this then 'yes' i will win my case.

do me a favour john instead of blowing people out of the water, try giving some encouragement to those who choose to stand up to the government and their wriggling little ways, do you think that an asylum seeker should be entitled to more than someone wwho has spent 20 yrs here already.

people need to stand up and shout out their rights in htis country. dont forget im fighting for more than just myself but others in my situtation so if i find something of importance than can help then i will.