Right to Reside - in UK since 2002

My 24yo client and her parents are Swedish Nationals in the UK since 2002.  My client was 11 then and eneterd with her parents.  Her father started work on arrival, but then voluntarilhy gave this up sometime in 2003 to care for her brother who has a long term illness.  Since then he has worked no more than a few days here and there.  Her mother has never worked here.  It seems that the family were probably in reciept of benefits since 2003 but I don’t have full details of exactly what as cl wasn’t certain.  I assume it might have been Income Support and CA with DLA for the brother.

Cl herself has worked sporadically since the age of 16 but with gaps, about 2 years work in total.  Is currrently being treated as a jobseeker rather than an unemployed worker, and has just failed the genuine prosepct of work test having previously claimed for over 91 days with a gap of less than 12 months between claims, and no work between the claims (she went abroad for a few weeks to visit relatives).  From the details she has given me it looks unlikely she can show GPoW or argue that she is an unemployed worker so IF she is subject to the R2R test, I think the fact that they have applied GPoW and failed her on it is correct.

However does the fact that they arrived in 2002 have any bearing on things?  Didn’t the R2R test come in in 2004?  Her father does not seem to be having problems in relation to R2R as he is apparently getting benefits, and I am thinking she can perhaps show she had aquirred 5 years residence as his dependant child by age 21 or has some argument in relation to date of arrival, but if she was his dependant I wasn’t sure what his status would have been, and I couldn’t find anything that shed light on date of arrival being helpful to her.

On the information so far provided it doesn’t appear hopeful.

The key is - as you referred to indirectly - the fact that the right to reside test was introduced in 2004. For those already here when the rules came in - and already in receipt of benefit - there was (and continues to be) transitional protection. So someone in receipt of IS/JSA/ESA/HB could continue to receive those benefits and retain transitional protection so long as they do so. in fact the rules work so that a person could be in receipt of IS and HB, say, then find low paid work so that the IS ended but the HB continued and, when the work ends for any reason, re-claim IS or JSA and be awarded benefit via the TP - i.e. via the continuing HB claim. The same would be true for someone whose IS continued but whose HB ended (perhaps because they ceased to be liable for rent whilst living with friends).

But entitlement to benefits via the transitional protection rules does not give a right to reside. So it doesn’t help a person acquire a permanent right of residence. Whilst your client undoubtedly was a dependant family member of her parents for more than 5 years, the difficulty will be that it doesn’t appear that they themselves had a right of residence at the the time (or since).

Thanks, that’s really helpful to me, if not the best news for my client!