EU Single Parent & IS Entitlement

The cases exclusively concern right to reside. If your client has a right to reside and habitual residence, they can claim whatever income replacement benefit fits their circumstances.

Sorry to harp on about this but can I again confirm the following in that the Polish mother would have a RTR if the estranged father was an EU national and NOT a UK national eg born in London. Secondly if the father was a UK citizen, if the mother had worked in the UK would she still be ok in having the RTR as the primary carer.

Question 1:

the Polish mother would have a RTR if the estranged father was an EU national and NOT a UK national

Answer: assuming they are married and the estranged husband currently has a right to reside then yes, so does she - her right to reside is as good as her husband’s

Question 2:

if the father was a UK citizen, if the mother had worked in the UK would she still be ok in having the RTR as the primary carer

Answer: now this is more difficult. A child born in the UK with a British father will tend to be British.  As far as I am aware there isn’t yet any authority on this precise combination of circumstances: EU parent who has been a worker but is no longer economically active with British child at school.  Can an EU parent with a work history derive a right of residence through her British child?  Derivative rights are founded on the right of a worker’s children to be educated in the host state, but this is a right that a British child has in any case: the child does not need to rely on its mother having been an EU worker in order to go to school and so European law isn’t engaged.  I suspect that would be the view of the UT/court if asked to decide this, but I am not 100% confident.

GOV.Uk states…

EU countries
The EU countries are:

Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the UK.

The European Economic Area (EEA)
The EEA includes EU countries and also Iceland, Liechtenstein and Norway. It allows them to be part of the EU’s single market.

Switzerland is neither an EU nor EEA member but is part of the single market - this means Swiss nationals have the same rights to live and work in the UK as other EEA nationals.

So can the Polish lone parent who resided with a UK national count as the carer of a child in education so as to have a RTR or has case law addressed this saying a UK citizen doesn’t count.

Yes this has been addressed by the case law and the legislation both.  In the Shirley McCarthy case the European Court said that a British/Irish dual national could not put on her EU hat in order for her Jamaican partner to by-pass normal visa requirements - as a British woman in Britain she herself was not relying on European law for her own right to reside so EU family member rights just weren’t engaged.

In the Immigration (EEA) Regs 2006 the definition of “EEA national” was amended following McCarthy to exclude British nationals from the definition as it applies in the UK.

So that’s why I tend to think that the EU/British parent combo won’t work - if the child is British it is entitled to go to school in Britain without EU law being engaged at all.

As far as I am aware the British national can be perceived as an EEA notional for the immigration purposes and the purpose of derivative right to reside ONLY IF the British national had moved to another EEA member state with intention of settling there permanently and had been exercising their treaty rights in that different EEA state for an appreciable period of time (a week or month won’t do it) and subsequently changed their mind for whatever reason and returned to live in the UK. In that circumstances a British national on return is perceived as an EEA national and can benefit from EEA Treaty Rights.

The Polish mother to British child in the circumstances described can live in the UK but, as she ceased economical activity she is not exercising EEA Treaty Rights and therefore not eligible to receive benefits as she will fail the right to reside test.

This is where she finds herself in a limbo; however she can make an application for Permanent Residency - EEA (PR) to the Home Office on discretionary grounds, even though she has not been residing in the UK for the 5 years and has not been exercising EEA Treaty Rights for the 5 year period. She would need to provide detailed explanation of her circumstances (including the fact that she is the main carer, the fact that she might not be able to return to the country of origin as the estranged father with parental responsibility can make that impossible; she can also point that her British child is discriminated against as the child benefit and child tax credits are the state benefits for the children, if there was any DV issues that would also be worth mentioning) 
This does not guarantee that she will be granted permanent residency status - as it would be at the discretion of the Secretary of State depending on the circumstances of her case.
This is not an immediate solution as this can take up to 6 months or longer to be processed, and the more supporting evidence is provided with the application the better (including letters from social workers, other supporting organisations, crime ref no if victim of DV and that was reported and so on)

The other option for the mother is to start working again part time with weekly gross earnings of £155 minimum; and I know that it’s hard to do that being a single parent of a young child not in full time education, however she can try to use or find some support circle friends/relatives (maybe a family member from Poland could come and help), maybe she knows someone in similar situation and they could help each other with childminding arrangements and altering working patterns.

They allow a claim for IS, ESA, JSA, HB etc on the same terms as a UK claimant. Ruth

Sorry responded to a query further up the thread. But on the most recent comment, she doesn’t have to earn £155 per week to be considered a worker. This is just the first part of the two-tier test. If she earns this, it is definitely “genuine and effective” but if she isn’t then they have to apply the “genuine and effective” test based on the circumstances - regularity, number of hours, length, earnings etc - and on the case law. People with 10 hours or less (depending on the circs) could be classed as workers.