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EU Lone Parent & IS Claim - Help
I know this has probably been addressed many times but any advice would be appreciated. Polish female client comes to the UK in 2008 and marries a English man. After several years the marriage breaks up and since then the Polish client has spent several periods away from the UK. In January this year she returns to the UK with her two (2) children from the marriage (and born in the UK) aged 3 & 6 and claims income support as a lone parent. Meanwhile the ex husband has moved to Africa to work. Client has been refused IS. Are the DWP correct as client has no RTR or can she claim JSA and then put the children in education and then claim IS etc Any Advice would be appreciated.
It’s aways a surprise to find that having been married to a British national and having British children gains an EEA national very little by way of residence rights. I think she needs to seek work, and JSA is the only benefit she can get while doing so.
If she finds work, will that give her an additional right to fall back on as a Teixeira carer as soon as the older child is in school? It’s not clear to me how that works if the children are British, since their right to go to school does not rely on mum having been a worker. The situation has more in common with Zambrano, except here the worst that can happen is the family relocates to Poland which is still in the EU so Zambrano wouldn’t apply and would not in any case provide a route to means tested benefits.
If you can derive a Teixeira right to reside as the primary carer of a British child, what happens down the line if she finds herself claiming JSA as a job seeker again? Say for example she finds work now, but loses her job while the younger kid is still under 5, and decides not to seek work for the time being but claims IS instead. When the kid turns 5 she will have to look for work again anyway as part of the normal benefit rules, irrespective of her nationality. In Reg 15A of the Immigration (EEA) Regs 2006 it says you cannot have a right to reside as a Teixeira carer if you also have a right to reside in some other capacity ... which she will have if she looks for work as an EEA national. That is a potential problem - especially if she pays rent and needs to claim HB. If jobseeker status “trumps” or suppresses the Teixeira right, she would not be entitled to HB. I suspect a Tribunal would regard that as a pedantic over-reading of the Regs, but it’s something to bear in mind.
So all in all I think she needs to go down the obvious route: try to find a job now and claim JSA
If the lone parent can claim a right under Teixeira then can he/she claim income support as a carer up to when the child is 18 or does the normal rules of being a carer come in eg for a British lone parent where the IS would stop when the child reached 5 in any event.
Being a Teixeira carer just gets the claimant over the right to reside hurdle: she is then in the same position as anyone claiming out of work DWP benefits and subject to the same conditionality
As the children are British I don’t think that Teixeira applies. The ratio of Teixeira is the prohibition of discrimination under Article 12 of EC Regulation 1612/68 (now Article 10 of EC Regulation 492/2011) which is in the following terms:
“The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory”.
In Teixeira the court ruled:
“A national of a Member State who was employed in another Member State in which his or her child is in education can, in circumstances such as those of the main proceedings, claim, in the capacity of primary carer for that child, a right of residence in the host Member State on the sole basis of Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992, without being required to satisfy the conditions laid down in Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC”.
FAO HB Anorak - Just to confirm then the case law won’t help her as the 3 year old is too young to attend school and the 6 year old is too old in any event for IS even if the client was a British lone parent. Therefore is the Polish client’s only right to reside is being a jobseeker, worker, self employed, self sufficient or student and therefore only eligible for JSA.
We need to keep general eligibility conditions and EEA rights of residence separate from one another.
As regards general eligibility, having a three-year old would make her eligible for IS right now.
But quite separately from that she also needs to satisfy the right to reside condition. Having a six year old at school is one possible way of satisfying the right to reside condition for some Europeans, but not on the facts of her case because (1) she hasn’t worked yet and (2) in any case the child is British, which nevip and I think is fatal to the derived right of residence as a Teixeira carer.
So as it stands she is in the right client group for IS, having a child under 5, but fails the HRT.
If she were to somehow satisfy the HRT for IS, she could get it until she no longer falls within an eligible client group (i.e. until her younger child is 5).
For the avoidance of doubt, the child under 5 who makes her eligible for IS would not have to be the one from whom she derived a right to reside (if she did, but she doesn’t).
So in fact as the children are British the case law has no bearing so she can be treated as a British lone carer as the children are British themselves and the younger child allows her to claim IS until 5 years of age!
No - she doesn’t have a right to reside for IS purposes so she won’t get that far. The fact that the Teixeira case has no bearing is not good news for her. Having an EEA right to reside and satisfying general IS eligibility requirements are not alternatives: you have to do both. She satisfies the latter but not the former.
As a person with no history of economic activity who is about to seek work, the only adult subsistence benefit she stands any chance of getting is JSA(ib), and only then after she has lived in the country for three months. Unless she gets a job sooner than that.
I assume you’ve ruled out a 5-year permanent right of residence derived from her ex-husband, presuming he was working throughout period together? You note they got together in 2008, so depending on when the break occurs (and you haven’t said it wasn’t before 2013), this might be an option if so?
He was British, Paul, so there’s no chance of her deriving any* right of residence from him, permanent or otherwise.
* - I suppose one could argue a permanent right of residence on the basis of self-sufficiency via his earnings if they were high enough and she could overcome the CSI requirement.
Thanks Simon, I knew it was risky replying to a right to reply thread when I’d just got back from leave.
As the children are British I don’t think that Teixeira applies. The ratio of Teixeira is the prohibition of discrimination under Article 12 of EC Regulation 1612/68 (now Article 10 of EC Regulation 492/2011) which is in the following terms:
“The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory”.
In Teixeira the court ruled:
“A national of a Member State who was employed in another Member State in which his or her child is in education can, in circumstances such as those of the main proceedings, claim, in the capacity of primary carer for that child, a right of residence in the host Member State on the sole basis of Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992, without being required to satisfy the conditions laid down in Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC”.
Are we sure that the Teixeira doctrine cannot apply in this case? The Court does not refer to the nationality of the child and neither does the Regulation. The possessive ‘of another Member State’ belongs to ‘the [carer] national’, not the children.
It’s also worth bearing in mind that the children have exercised their Treaty rights by moving to and residing in Poland and then coming back. Does this not bring them within the doctrine on McCarthy/Singh?
You can never be sure when complex rights derive from several legislatures, often in conflict with each other, and sometimes far from clear, are developing on a case by case basis, and often leaving other questions to be answered by the next case that comes along. That’s why I think it can be misleading to talk of broad rights, such as ‘Teixeira rights’, when each case is decided on its facts.
In my view, the whole thrust of the intent of article 12 was to afford equal treatment between children residing in a member state of which they are not nationals of and children who are nationals of the member state in which they reside. Although the ECJ judgement doesn’t expressly state that Mrs Teixeira’s daughter was not a UK national one can reasonably assume it otherwise, in my view, article 12 would not have been engaged in the first place because, if the child was British, she would have a right to reside anyway and Teixeira firmly concludes that that case was decided solely on article 12 rights.
It’s a while since I read McCarthy so I don’t know the answer to that at tis point.
Are we sure that the Teixeira doctrine cannot apply in this case? The Court does not refer to the nationality of the child and neither does the Regulation. The possessive ‘of another Member State’ belongs to ‘the [carer] national’, not the children.
It’s also worth bearing in mind that the children have exercised their Treaty rights by moving to and residing in Poland and then coming back. Does this not bring them within the doctrine on McCarthy/Singh?
It’s worth remembering that Art. 12 grants a child a right to education, rather than a right of residence. And the reason that the Court (and Art. 12) does not refer to the nationality of the child is because the child might well have non-EEA nationality - e.g. the child of a French worker employed in the UK with a spouse who is Argentinian may also be Argentinian.
A British child does not need to rely on Art. 12 for a right to education - they have that right anyway by virtue of being British.
Perhaps McCarthy and Singh are not terribly apposite cases. My point was basically that the children have actually exercised their citizenship rights of movement and residence, thus bringing them within the personal scope of EU law.
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.
In any event, seeing as this client has not yet worked, it’s all academic and would probably not be a quick fix.
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, for how long would she have had to have worked? If it’s for a very short period of time is there not a danger that her work might be viewed as an abuse? Or is motivation irrelevant to this? I recall reading some caselaw a very long time ago that said motivation for seeking work is irrelevant (you can, for example, move to a new country mainly because you like the scenery but that does not mean the work you do there doesn’t count) but not sure in these circumstances where we are talking about stopping your economic activity.