RTR on serious health grounds

I thought I’d got my head round this one but I’m not so sure now….
Client came to UK with parents and 2 siblings 3 years ago from Slovakia.  Mum worked for a short period before giving up work to care for my client who applied for and was awarded DLA at the age of 15.  Mum subsequently claimed CA and IS by having a derivative RTR.  The other children are younger than my client.  Client is now 16 and has finished FT education.  Her health issues make it impossible for her to continue in any type of education so she claimed ESA.  I thought reg 8(1)&(3) of Immigration EEA regs would apply as she relies on Mum for FT care and Mum retains a derivative RTR through the other 2 children who are still in school.  Claim was refused of course and I wasn’t able to provide all the info required for the MR in time so that has failed too.  Reading the explanation though I’m beginning to doubt my own argument.  Is a derivative right enough to be considered a “qualified person”?  Hope I’m making sense.

My understanding (happy to be corrected) is that as entitlement is for a qualified person and their family members (reg 14), you can’t claim benefit on the basis of being a family member of a family member of a qualified person.

In your case, the younger child has a right to reside as a student and the mother is piggybacking off that through the family member provisions. Your client can’t further piggyback off the mother’s rights as a family member - she would need to either be a qualified person in her own right or show a relevant connection to someone who is.

I think your client has r2r under reg 15A para 5 Immigration(EEA) Regs 2006:

Derivative right of residence
15A. (1) A person (“P”) who is not an exempt person and who satisfies the criteria in paragraph (2), (3), (4), (4A) or (5) of this regulation is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria.

(2) P satisfies the criteria in this paragraph if— (a) P is the primary carer of an EEA national (“the relevant EEA national”); and (b) the relevant EEA national— (i) is under the age of 18; (ii) is residing in the United Kingdom as a self-sufficient person; and (iii) would be unable to remain in the United Kingdom if P were required to leave.

(3) P satisfies the criteria in this paragraph if— (a) P is the child of an EEA national (“the EEA national parent”); (b) P resided in the United Kingdom at a time when the EEA national parent was residing in the United Kingdom as a worker; and (c) P is in education in the United Kingdom and was in education there at a time when the EEA national parent was in the United Kingdom.

(4) P satisfies the criteria in this paragraph if— (a) P is the primary carer of a person meeting the criteria in paragraph (3) (“the relevant person”); and (b) the relevant person would be unable to continue to be educated in the United Kingdom if P were required to leave.

(4A) P satisfies the criteria in this paragraph if— (a) P is the primary carer of a British citizen (“the relevant British citizen”); (b) the relevant British citizen is residing in the United Kingdom; and (c) the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave.

(5) P satisfies the criteria in this paragraph if— (a) P is under the age of 18; (b) P’s primary carer is entitled to a derivative right to reside in the United Kingdom by virtue of paragraph (2) or (4); (c) P does not have leave to enter, or remain in, the United Kingdom; and (d) requiring P to leave the United Kingdom would prevent P’s primary carer from residing in the United Kingdom.

(6) For the purpose of this regulation— (a) “education” excludes nursery education; (b) “worker” does not include a jobseeker or a person who falls to be regarded as a worker by virtue of regulation 6(2); and (c) “an exempt person” is a person— (i) who has a right to reside in the United Kingdom as a result of any other provision of these Regulations; (ii) who has a right of abode in the United Kingdom by virtue of section 2 of the 1971 Act; (iii) to whom section 8 of the 1971 Act, or any order made under subsection (2) of that provision, applies; or (iv) who has indefinite leave to enter or remain in the United Kingdom.

(7) P is to be regarded as a “primary carer” of another person if (a) P is a direct relative or a legal guardian of that person; and (b) P— (i) is the person who has primary responsibility for that person’s care; or (ii) shares equally the responsibility for that person’s care with one other person who is not an exempt person.

(7A) Where P is to be regarded as a primary carer of another person by virtue of paragraph (7)(b)(ii) the criteria in paragraphs (2)(b)(iii), (4)(b) and (4A)(c) shall be considered on the basis that both P and the person with whom care responsibility is shared would be required to leave the United Kingdom.

(7B) Paragraph (7A) does not apply if the person with whom care responsibility is shared acquired a derivative right to reside in the United Kingdom as a result of this regulation prior to P assuming equal care responsibility.

(8) P will not be regarded as having responsibility for a person’s care for the purpose of paragraph (7) on the sole basis of a financial contribution towards that person’s care.

(9) A person who otherwise satisfies the criteria in paragraph (2), (3), (4), (4A) or (5) will not be entitled to a derivative right to reside in the United Kingdom where the Secretary of State or an immigration officer has made a decision under regulation 19(3)(b), 20(1), 20A(1) or 23A.

Many thanks Damien.  I’ve won this case on the grounds you advised: Reg 15a (2) and (5):)