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Forum Home  →  Discussion  →  Income support, JSA and tax credits  →  Thread

EU Lone Parent & IS Claim - Help

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J.Mckendrick
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FAO SHowells/Paul - Are you saying that she could not derive a right from her husband(eg family member of…)  because he is British but had he been eg Polish himself then this would be ok for her settled status.

nevip
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J.Mckendrick - 30 September 2014 03:40 PM

FAO SHowells/Paul - Are you saying that she could not derive a right from her husband(eg family member of…)  because he is British but had he been eg Polish himself then this would be ok for her settled status.

She can only have a right as a family member of her husband if he had worked in another member state.  If he was Polish, then she could.

“I have a question, though: if mum works, puts the eldest in education and then decides to stop to take advantage of the rule in Teixeira….”

She can’t take advantage of Teixeira as the child is British so the facts of the Teixeira case don’t apply to her.  That’s why I said it’s misleading to talk of broad rights (or, if you like, rules).

Yes, reasons for looking for work are irrelevant.  The question is, is the work genuine and effective?

“If a non-British EEA former worker whose British child is in education, both of whom have moved within the EEA, did not have a right to reside, would this not deprive the British child of the useful effectiveness of their rights in exactly the same way it would a non-British EEA child who has moved here? The children would not be able to complete their education if required to leave the host state because they are the family members of a person who has exercised her right to move and reside freely. The right of a British child to enter education may not come from the Regulation but you cannot use a secondary measure to restrict the scope of fundamental Treaty rights”.

There is force and substance to that argument but you will have to find another provision of EU or international law other than article 12.

 

 

past caring
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Basically, yes.

The thing to remember in all of this is that rights of residence (for benefits purposes) almost invariably derive from someone, somewhere in the equation exercising EU Treaty rights - the Treaty basically gives EU citizens the right to move to another member state to work, to look for work, to offer services (self-employment) to study or to reside as a self-sufficient person.

In order to make such rights effective, this may mean that individuals who have never exercised any such rights (and are not themselves even EU citizens) may have a right to reside (e.g. in the previous example I gave, a retired parent of the Argentinian spouse might have a right of residence if they could show dependency) but someone has to be exercising (or have exercised) such rights. A British citizen cannot be doing this in the UK*, nor a French national in France - they have no need of such rights to work, study or engage in self-employment.

* a UK citizen who has exercised Treaty rights in, say, Poland and who returns to the UK, can use this fact to overcome the habitual residence test. And conceivably, the Polish spouse of a UK national who had exercised such rights could rely upon this for a right of residence were the couple to separate after returning to the UK….

nevip
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From Post 15.

“If a non-British EEA former worker whose British child is in education, both of whom have moved within the EEA, did not have a right to reside, would this not deprive the British child of the useful effectiveness of their rights in exactly the same way it would a non-British EEA child who has moved here? The children would not be able to complete their education if required to leave the host state because they are the family members of a person who has exercised her right to move and reside freely. The right of a British child to enter education may not come from the Regulation but you cannot use a secondary measure to restrict the scope of fundamental Treaty rights”.

The UN Convention of the Rights of the Child contains the following.

Part of the Preamble

“Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community”.

Article 5

“States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention”.

Article 9(1)

“States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence”.

Article 18(1)

“States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern”.

 

J.Mckendrick
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Nevip - Do you think the Convention has a legal standing and if so could it be argued that the two (2) British children in this case can choose to be educated in their own country and not be separated from their mother as a result of European case law and legislation! If the mother has no RTR in the UK and therefore has to leave then the children would be placed in care etc. Can this be right.

UNICEF is the only organisation working for children recognised by the Convention. All UN member states except for the United States, Somalia and South Sudan have approved the CRC. The UK signed it in 1990, and it came into UK law in 1992.

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J.Mckendrick - 02 October 2014 09:53 AM

Nevip - Do you think the Convention has a legal standing and if so could it be argued that the two (2) British children in this case can choose to be educated in their own country and not be separated from their mother as a result of European case law and legislation! If the mother has no RTR in the UK and therefore has to leave then the children would be placed in care etc. Can this be right.

Whilst there may be some mileage in arguing Convention rights (I’m not expert enough to say) the situation is not as outlined above - far from it.

1. The mother has no right to reside for the purposes of IS entitlement. She would have a right to reside as a workseeker (and so could claim JSA - and be in the exact same financial position as if receiving IS) or as a worker/self-employed person.

2. Even absent any right to reside, this is soley for benefit purposes and she could legally remain in the UK whilst her children are in education - there is no prospect of her being removed and she does not therefore ‘have’ to leave and face the children being placed in care.

3. And if she did decide to leave the UK because she is unable to claim IS, she could return to Poland and claim benefits there and take the children with her - something that (from your first post) she appears to have already done on a couple of occasions.

I’m not defending either the DWP’s or the UK government’s position - I wish it were different - but I’m not sure that over stating the situation helps.

nevip
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Signatories to international treaties assume legal obligations to give full effect to those treaties and implement domestic measures accordingly.  It is there to be argued that any measure which infringes upon the rights contained in a treaty is unlawful.  However, the relationship between international law and domestic law is complicated and agreement between legal scholars over which prevails, and how, is far from unanimous.  Anyone who wishes to pursue a case in the higher courts would need to seek specialist legal advice.

And yes, I agree, that there is a danger of overstating an individual case.  Each case will turn on its own facts and it shouldn’t be assumed as a matter of course that children would, for instance, end up in care or be subject to neglect.
http://www.legalanswers.sl.nsw.gov.au/hot_topics/pdf/international_69.pdf

 

HB Anorak
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As an aside, a few posts back matthewjay commented on abuse of rights and whether there was some case law on it.

I can think of three:

On the “liking the scenery” point, I think that’s Levin: British woman who got a job in the Netherlands not because she particularly wanted one, and she hadn’t gone there for that purpose: the family was in NL because of her non-EEA husband’s work and she took the job as a device to ensure they would have a right to reside.  The court said that’s OK as long as the work is intrinsically effective and genuine.

Lair and Ninni-Orasche are the other two and I have to say I don’t really understand what they are trying to say about abuse of rights (maybe it doesn’t come across well in translation).  Both cases involved someone who worked briefly before starting a course and applying for student finance.  The decisions say that abuse of rights is not within the scope of the treaty and it isn’t clear whether that means:

- the treaty is silent about abuse of rights, but the Levin decision means these things are self-regulating in that your work is less likely to have been effective and genuine if it was a mere contrivance so there is no need for any specific rule.  Or
- if you set out to cynically abuse an EU right you put yourself outside the scope of the Treaty and cannot rely on things you have done for improper reasons

Maybe there isn’t a lot of difference either way.

J.Mckendrick
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Just another query regards this subject…. I now have a 16 year Polish female who has had to leave her parents address for certain reasons. She now lives along with her 6 month year old child (temporary under the care of social services). Her parents have lived in the UK for 8 years working for the majority of time as agency workers. Can I take it that yet again the young mother cannot claim income support or housing allowance, but please can someone advise me about the ‘relative of a qualified person’ subject ie does this just give the right to reside to the young mother BUT NOT income support. If there is any help around the relative of a qualified person argument does it make any difference that she no longer resides with her parents. Many thanks.

HB Anorak
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On the right to reside point, as long as she is under 21 and her parent(s) has/have a right to reside, so does she - no strings.  The definition of “family member” requires a descendant to be either dependent or under 21.  Her right to resideis as good as, but only as good as, her parents’.

Not only that: if she has had such a right as a child of Polish workers fior five years continuously she now has her own personal permanent right of residence.

That puts her in the same position as anyone claiming IS - she will have to satisfy the normal eligibility conditions i.e. although she is fit circumstances prevent her from seeking work. FT relevant education I would guess?

One way to look at this is to imagine the IS eligibility conditions (kid under 5, carer etc) as hurdles in a running race.  Any claimant will only reach the finishing line of IS entitlement if they clear one of these hurdles.  Europeans are not even allowed out of nthe changing room unless they have a right to reside.  If they do have such a right, they can take up their place on the starting line alongside the British athletes.  Then it’s the same race with the same hurdles.

J.Mckendrick
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Many thanks HB. Can I clarify two (2) further points…

I) Does the 16 year old child gain ‘settled status’ in her own dependent right even though she has never worked in the UK and her last 5 years were in secondary school.

ii) Can she now be classed as a family member when she has now left the parents to live on her own. If she is still a ‘family member….’ can she claim IS for her child until the child reaches the age of 5.

HB Anorak
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1.  Yes, although when talking about an EEA right of residence the term “permanent right to reside” used - “settled” means indefinite leave to remain under UK immigration law which is a status granted to non-EEA nationals who have no EEA family connections.

2.  I believe that is correct: just being under 21 and having your parents in the country gives you a right to reside as long as the parents have such a right, even if you are estranged from them.  It is only once the person reaches the age of 21 that they face the additional requirement of being dependent on their parents and that is obviously harder to demonstrate if you are estranged and living apart.

J.Mckendrick
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Sorry to harp on about this but looking into the matter it is my ‘belief’ that the said 16 year old single Polish mother who has resided in the UK for 8 years is still not able to receive IS….

Reg 17 of the IS Regs states that the applicable amount for a lone parent who is a person from abroad (“PFA”) is NIL.

Reg 21AA of the IS regs states the conditions that someone will not be treated as a PFA ie habitually resident lay in paragraph 3.

As the client’s right to reside only lays in Reg 15(1)(a) of the Immigration (EEA) Regs 2006 and possibly 15(f)(I)&(ii), these are not covered/mentioned in Reg 21AA and therefore even though she has lived in the UK for 8 years it looks like she cannot claim IS in her own right. Any views on the matter would be appreciated.

HB Anorak
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Reg 21AA is not exhaustive. It mentions people who definitely are PFAs and people who definitely are not. Anyone else who has a right to reside must also satisfy the additional requirement of being in fact habitually resident. Assuming you are a British citizen you can easily test this by asking yourself where Reg 21AA mentions you. It won’t, but you are not a PFA. Same goes for your client.

[ Edited: 10 Nov 2014 at 01:23 pm by HB Anorak ]
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J.Mckendrick - 05 November 2014 04:47 PM

Just another query regards this subject…. I now have a 16 year Polish female who has had to leave her parents address for certain reasons. She now lives along with her 6 month year old child (temporary under the care of social services).


We would view this through the homeless lens.

She is currently being assessed/accommodated by social care. They will make a decision on wether she can return to parents.

Most probably if she cant, she will be assessed and accommodated as a Section 20 “Southwark child”, with all the benefits that entails.

Why wouldnt she or you, not want her to be accommodated under Southwark, if Social Care felt this was in her interest?

https://england.shelter.org.uk/__data/assets/pdf_file/0005/231269/G_v_Southwark_briefing_revised_Nov_11.pdf

It is difficult to answer until you know how she is accommodated…......