TCM0307180 - Specialist areas: international: right to reside: retaining a right to reside following giving up work during the latter stages of pregnancy

Introduction

Note: Work means employment or Self- employment

A woman who:

  • gives up work, or
  • gives up seeking work, or
  • gives up looking for work and have retained their status as a worker,

in the ‘latter stages of pregnancy’ and who intends to return to work after ‘a reasonable period’ following child birth, can retain a right to reside in the UK.

As a guide, the ‘latter stages of pregnancy’ is currently 11 weeks before the estimated date of delivery. However, consideration should be given to the facts and circumstances of each individual case.

When considering extending the period of the latter stages of pregnancy to more than 11 weeks, the customer should provide evidence of why this extension is necessary. For example:

  • has the mother undergone complications during her pregnancy, or
  • has the type of job the mother had been doing, required her to leave work at an earlier stage of her pregnancy.

Guidance

Step 1

Check the information provided to establish whether the customer has given up work or seeking work because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth.

If the customer has given up work or seeking work within 11 weeks of the expected date of birth of the child, go to Step 3.

If the customer has given up work or seeking work more than 11 weeks before the expected date of birth of the child, go to Step 2.

Step 2

Has the customer provided satisfactory evidence for giving up work or giving up seeking work more than 11 weeks before the expected date of birth of the child?

If the customer has provided satisfactory evidence, go to Step 3.

If the customer has not provided satisfactory evidence:

  • the customer does not have a right to reside in the UK as a ‘qualified person’ as a retained worker or jobseeker
  • check for other ways the customer may have a right to reside in the UK.

Step 3

Check that the customer intends to return to employment following the birth of their child.

Note: An intention to return to work or, return to job-seeking within a reasonable period, should be accepted in all cases unless the customer expressly states that she has absolutely no intention of returning to work. Where an intention to return to work is accepted, the claimant’s Saint-Prix rights will continue up to the point where either, the customer expressly states that she does not intend to return to work or, the end of the reasonable period is reached, whichever occurs first.

The ‘reasonable period’ set out in the Saint-Prix judgement has been defined as 52 weeks, however in certain exceptional circumstances it would be reasonable for the period to exceed 52 weeks. For example; Due to serious illness or, disability of the child, there is a need for continued parental care.

If the customer intends to return to work or return to job-seeking within 52 weeks following the birth of their child:

  • the customer has a right to reside in the UK as a ‘qualified person’ who has retained their status as a worker
  • make a note to review the case 52 weeks after the child’s date of birth
  • return to the guidance you were previously following.

If the customer intends to return to work or return to job-seeking more than 52 weeks following the birth of their child:

  • the customer may only retain their status as a worker for 52 weeks following the date of birth of their child
  • make a note to review the case 52 weeks after the child’s date of birth
  • return to the guidance you were previously following.

Note: On expiry of the 52 weeks reasonable period, a customer will need to show they have returned to work, or have resumed looking for work, in order to continue satisfying right to reside conditions. If they are unable to do this, for their entitlement to continue, they will need to show they have a right to reside in another way.

Where a customer returns to seeking employment after the reasonable period, they will only have a right to reside as a jobseeker for a maximum period of 91 days. For entitlement to continue they will have to show they have a right to reside in another way. If they were looking for work prior to the latter stages of pregnancy, the number of days they spent looking for work, should be subtracted from the 91 days following their return to job seeking, if they start seeking work within 12 months of last doing so.

If the customer does not intend to return to work:

  • the customer does not have a right to reside in the UK as a ‘qualified person’ as a retained worker or jobseeker
  • check for other ways the customer may have a right to reside in the UK.