Income Support and Right to Reside EU national age 17 & estranged from parents

I have a client who is a Portuguese National age 17 – will be 18 on 27/3– who is estranged from his parents, both EU nationals, living & working in the UK.  He is doing a non-advanced full-time course at a football academy and claimed IS.  Only income is Educational Maintenance Allowance.  Is being housed by English Churches Housing Group who supprt vulnerable 18-25 year olds. Was refused on the basis that he does not have RTR because he is a person from abroad.  Appeal is in.  I believe he does have Right to reside as a family member of a qualified person – ie a direct descendant of a person who is qualified and under 21 - see CF/1863/2007.  Am I correct and does anyone know of any other relevant case law?

This is clear from CF/1863/2003 and from Diatta v Land Berlin Case C-267/83:

In CF/1863/2007 the claimant was refused Child Benefit on the basis she had no right of residence. She was aged under 21 and was not living with her father, who appeared to be a worker or someone who retained that status. The Commissioner explains:
The claimant’s case was that her father must have been accepted as a qualified person under the 2004 Regulations and the EEA Regulations to be awarded the benefits that he was receiving. HMRC submitted to the appeal tribunal that that did not work, because once the claimant ceased to reside in the same household as her father she could no longer be regarded as his dependant. The appeal tribunal took the same view. It said this in its statement of reasons:

  “Although the circumstance in which her father was awarded benefits are far from clear, the Appellant’s first argument was that her father was treated as qualified person, she was under 21 and had been a dependent, thus also having the right to reside. I have rejected this argument simply on the facts. She had ceased to live with her father long before the claim and was maintaining herself.”

6.  That view is inconsistent in law with the plain words of regulation 7(1)(b) of the EEA Regulations. The claimant is a direct descendant of her father and was under 21 at the date of the child benefit claim and decision. Accordingly, she satisfied the definition of “family member” without the need to satisfy any further condition about actually being a dependant of her father. Thus, if her father was a qualified person, with a right to reside under the Regulations, so was the claimant. That point was specifically identified when I gave directions on the appeal (leave to appeal having been granted by the chairman of the appeal tribunal) and was accepted in the submission dated 3 September 2007 on behalf of HMRC. It is plainly sound in law and requires the setting aside of the appeal tribunal’s decision.

In Diatta the European Court of Justice held that:

18 IN PROVIDING THAT A MEMBER OF A MIGRANT WORKER ’ S FAMILY HAS THE RIGHT TO INSTALL HIMSELF WITH THE WORKER , ARTICLE 10 OF THE REGULATION DOES NOT REQUIRE THAT THE MEMBER OF THE FAMILY IN QUESTION MUST LIVE PERMANENTLY WITH THE WORKER , BUT , AS IS CLEAR FROM ARTICLE 10 ( 3 ), ONLY THAT THE ACCOMMODATION WHICH THE WORKER HAS AVAILABLE MUST BE SUCH AS MAY BE CONSIDERED NORMAL FOR THE PURPOSE OF ACCOMMODATING HIS FAMILY . A REQUIREMENT THAT THE FAMILY MUST LIVE UNDER THE SAME ROOF PERMANENTLY CANNOT BE IMPLIED .

Note that the Article 10 referred to is that of EC Regulation 1612/68. The requirement that the worker have available accommodation for their family members has not been carried over into Directive 2004/38 EC which is designed to strengthen free movement rights (see recital 3).

As your client is estranged then you may have difficulty proving that the parents are working etc. If this is the case, then you should ask the Decision Maker to use their information gathering powers to find out and explain that if they don’t bother then your client wins appeal- see Kerr v DSDNI [2004] UKHL 23

Thank you for your help. Please can you tell me where to look for Kerr v DSDNI so I can include more detail in my submission.

here’s a link to kerr judgment -

http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040506/kerr-1.htm

cheers ros