Permanent right to reside

Hi Everyone. I would be grateful for some quick advice on a right to reside issue. I believe I am right but want confirmation on it and also any further information that will help with both this case and future ones.

I have a client who is from Portugal and she has lived here in the UK since 2004. In this time she has had two children, one being 9 the other 1 years old. Both born in the UK but do not have UK passports. Due to the habitual residence test, she has been declined Income Support and now HB has stopped.

She worked part time in 2004 up until 2006. It may be slightly less than the full two years and I am looking into this.
At the time of the first child being born client was on HB at this time. Once her first child turned 5 she begun to claim JSA and she was asked to take an English course at college. She then claimed JSA for approximately 4 and a half years.

When her next child was born the client stopped her JSA to make a claim for Income Support as she was under the understanding this is the benefit she needed to be on as her son was under 5 etc. If she didn’t cancel JSA until IS was in payment there may not have been as much as a problem.

Am I right in saying that we could argue that she has a permanent right to reside as with the combined years of Job Seeking after 30TH April 2006, and the previous employment before 2006 it would total over 5 years?

Does anyone have any other tips? I.e., would a child having a British passport mean she would have right to reside?
A new income support claim has been made and I want to get as much of the expected appeal together ASAP.

Look forward to your response.

Craig

Hi Craig,

Leaving aside the permanent RTR issue if she has worked in the UK (which from your post she has) and has a child in education (the 9 year old) she has a RTR via the child in education anyhow (so should be entitled to IS on that basis). I should request MR of the original decision refusing IS rather than advise her to make a new claim.

Hi Craig,

Might need a bit more detail on this one - you say your cl claimed HB until first child turned 5, but was she claiming any DWP benefit? To make an argument for 5 yrs lawful residency it would be necessary for your client to have made a claim for JSA, or at least IS, providing it could be argued they were seeking work in this period.

Even if it was possible for child to gain citizenship (and I don’t believe this would be easy), I don’t think it would assist your client - being a primary carer of British citizen does not, as things stand, satisfy the R2R test for any benefit/tax credit.

1964 - 20 July 2016 02:23 PM

Hi Craig,

Leaving aside the permanent RTR issue if she has worked in the UK (which from your post she has) and has a child in education (the 9 year old) she has a RTR via the child in education anyhow (so should be entitled to IS on that basis). I should request MR of the original decision refusing IS rather than advise her to make a new claim.

That’s absolutely right! Should be a more surefire route, although exploring prospect of permanent R2R is always handy.

Hi all,

Thanks for your reply’s, they are much appreciated.

So, when the first child was born in 2006 the tenant claimed HB with IS and was on this as far as I am aware until the child turned 5. She then went on to JSA and looked for work.
At this time she was asked to also go and learn English at college as part of JSA.

When the 2nd child was born she then tried to claim IS and stopped JSA straight away without knowing the outcome of this.

In regards to the child being in education, I am under the believe that she was never working when the child was in education. I think this is a stumbling block?

I spoke to someone yesterday who said that if I can check whether the father of wither of the child is British and on the birth certificate I could go down this route?

Look forward to your replies.

1964 - 20 July 2016 02:23 PM

Hi Craig,

Leaving aside the permanent RTR issue if she has worked in the UK (which from your post she has) and has a child in education (the 9 year old) she has a RTR via the child in education anyhow (so should be entitled to IS on that basis). I should request MR of the original decision refusing IS rather than advise her to make a new claim.

If it’s at appeal already I’d argue the permanent R2R first. As we all know the I(EEA) regs grant a status to jobseekers that goes a step further than the residency directive so, as you say, she’s got a permanent right. JCP will battle that and it’s true to say it will be easier to establish Teixeira rights, however a Tribunal decision saying “permanent right” will be a useful document to have going forward whereas Teixeira rights don’t contribute to any lasting status even after 5 years.

DDP - 21 July 2016 03:47 PM

In regards to the child being in education, I am under the believe that she was never working when the child was in education. I think this is a stumbling block?

.

It shouldn’t be, see https://communitycareandhousing.wikispaces.com/file/view/m-21-12[1].pdf for reference

You’ll need to copy and paste the entire link rather than hit it thanks to the gaps.

DDP - 21 July 2016 03:47 PM

I spoke to someone yesterday who said that if I can check whether the father of wither of the child is British and on the birth certificate I could go down this route?

 

I believe you’d be arguing that she’s a Zambrano carer and they are specifically excluded from receiving benefits

As long as she was working at some point whilst she was the primary carer of the child it doesn’t matter if child was in education at the time she was working or not so she should be fine Craig. See Teixeira.

(sorry- was posting at the same time as Dan).

Thanks to you both. I will see the client today so lets see how it goes.

Much appreciated.

Hi both,

After meeting the client on Friday I have discovered she has never worked (Not one day) since the birth of the first child. So, this means we cant go down that road with primary carer of child in education.

I think now I will have to go with the Perm right to reside. The tenant has worked nearly 2 years from 2004-2006 and has claimed JSA for way over 4 years since 30th April 2006.

I have documents coming from HMRC that will show this. I hope this will work as I do not believe there are any other roads we can go down.

Thanks

DDP - 25 July 2016 10:56 AM

After meeting the client on Friday I have discovered she has never worked (Not one day) since the birth of the first child. So, this means we cant go down that road with primary carer of child in education.

 

I don’t profess to be as up to speed with R2R as I used to be but I must ask why does that rule out asserting Teixeira rights.

Parent has worked. Child is in education. End of… or so I thought.

Yes it shouldn’t matter - have a look at C-115/15.

Slightly different facts as the primary carer was from outside the EEA and their ex-partner (the other parent) who was German had been a worker before the child entered education.

The approach should be the same in your case, as long as one of the parents has been an EEA worker at some stage then the current primary carer can derive their r2r.