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Right to reside for foster child and IS appeal
Client is 18 y/o woman, Portugese origin, came to UK (without family) aged 7 years, and cared for by godmother and then foster parent. Left foster care and now living in hostel accommodation being paid for by Social Services currently under sec.20 Children’s Act.
Started FE college in August 2013 and claimed Income Support (prev claiming JSA successfully from March 2013 to August 2013), which has been refused as she doesn’t have a right to reside.
Finding it difficult to find grounds to challenge, although instinctively, I can’t believe that someone in this situation hasn’t established a permanent right of residence after living in the UK for the last 11 years. However, she wouldn’t appear to be a family member under the regs, her birth parents have never been to UK so no links there, and scratching around for an argument to advance.
Anyone have any bright ideas? Many thanks for anything you can offer…
Not a quick fix,but as she is over 18 and has lived in the UK for more than 5 years she could (if she wants to do so) apply for British citizenship on the grounds of naturalisation.
Leaflet BN7 refers.Applications are made to the Home Office National Quality and Enquiry Team in Liverpool.
Not a quick fix,but as she is over 18 and has lived in the UK for more than 5 years she could (if she wants to do so) apply for British citizenship on the grounds of naturalisation.
Leaflet BN7 refers.Applications are made to the Home Office National Quality and Enquiry Team in Liverpool.
thanks
Finding it difficult to find grounds to challenge, although instinctively, I can’t believe that someone in this situation hasn’t established a permanent right of residence after living in the UK for the last 11 years. However, she wouldn’t appear to be a family member under the regs, her birth parents have never been to UK so no links there, and scratching around for an argument to advance
Assuming she has Portuguese nationality, she is an EU citizen in her own right and it appears she has been lawfully in the country for a continuous period of 5 years (and thus perm res under art 16 of the Directive). Could be wrong but is this not similar to C-200/02 Zhu Chen (baby acquired Irish nationality by being born of Chinese parents in Northern Ireland found to have RTR in the UK in her own right)?
The term “resided legally” means resided legally in accordance with the directive. In other words she must have previously has a right to reside under one its articles, worker, family member of a worker, etc, or who can retain that status as a qualifying person under Article 7 or who has had that status for 5 years. Mere presence here for five years is not enough. I think the citizenship argument looks the best.
Yes, Martin Williams at CPAG suggested a Chen-style argument, but we do come up against the problem that Paul identifies, namely that merely living her for about 11 years (completely legally) doesn’t satisfy the directive regards “residing legally”.
As noted before, another issue is the lack of family members in the UK - it’s almost as if being cared for by godmother/foster carers now serves to penalise her compared to a child who has lived with their birth parents previously.
I can’t believe that someone in this situation hasn’t established a permanent right of residence after living in the UK for the last 11 years.
Unless this is one of those situations where an application for leave to remain should and could have been made but has not been made I find it difficult as well, I would have thought she would have established R2R, EU law or Community law by now given her circumstances.
Is there absolutely no self sufficiency argument, right the way through the 11 years? You might already have looked at this, but just a thought.
How long ws she with the Godmother? What happened to that relationship?
To adopt “birth parent” as a precursor to “family member” seems a bit tight to me considering adoptive children. What prevents an argument that Godmother was part of her family? If she lived with her for long enough surely there would come a time when that was de facto the case.
Don’t have anything to add on the RtR issue, though think something along the lines of Chen will have to be tried in the absence of any right of residence via the godparent (think it would be worth arguing the godparent can be included in definition of family member if the other facts meant this was the only barrier…).
However, just wondering aloud around the JSA/IS issue….
I’m assuming the switch from JSA to IS was to do with the rules around full-time non-advanced education and being availabe for/actively seeking work? But if this is the case why would it be - under the domestic rules around entitlement (i.e. leaving aside the RtR problem) - that a claim for IS could succeed whilst a claim for JSA could not?
Clearly, there’s no RtR barrier to your client being able to claim JSA, so if it’s just a case of her preferring to claim IS then…....
Don’t have anything to add on the RtR issue, though think something along the lines of Chen will have to be tried in the absence of any right of residence via the godparent (think it would be worth arguing the godparent can be included in definition of family member if the other facts meant this was the only barrier…).
However, just wondering aloud around the JSA/IS issue….
I’m assuming the switch from JSA to IS was to do with the rules around full-time non-advanced education and being availabe for/actively seeking work? But if this is the case why would it be - under the domestic rules around entitlement (i.e. leaving aside the RtR problem) - that a claim for IS could succeed whilst a claim for JSA could not?
Clearly, there’s no RtR barrier to your client being able to claim JSA, so if it’s just a case of her preferring to claim IS then…....
Not sure I entirely understand your point. She can’t claim JSA due to being a full-time student in relevant eduction, but aside from R2R issue, she could be entitled to IS as she is in full-time non-advanced education, aged under 21 and is estranged from her parents. So I can’t see where she’s preferring to claim IS, she doesn’t have a choice, or have I missed your point by a country mile (which is always possible :-)
No, just that wasn’t spelled out in your original post and with this kind of seemingly intractable problem we sometimes overlook the obvious/can’t see the wood for the trees - I do myself.
And just for clarity, I do see clients in similar situations who do prefer to claim IS rather then JSA. Saying that involves no value judgement at all - such a choice (where it actually exists) is entirely logical and one that I would make myself…
Some of the cases I’ve dealt with were single parents, quite happy claiming JSA, who then get told by someone in the jobcentre to claim IS. The children are not in education so cannot claim a right to reside following Teixeira, but fortunately they ticked the yes box on the hab’ res’ part of the claim form that asks, “are you looking for work”? So, we have been able to get the decision overturned using the decision in Elmi. It just goes to show that no matter how well meaning the jobcentre workers were, they shouldn’t be giving advice that they are not properly trained to give. As Pope said “a little learning is a dangerous thing”.
No, just that wasn’t spelled out in your original post and with this kind of seemingly intractable problem we sometimes overlook the obvious/can’t see the wood for the trees - I do myself.
And just for clarity, I do see clients in similar situations who do prefer to claim IS rather then JSA. Saying that involves no value judgement at all - such a choice (where it actually exists) is entirely logical and one that I would make myself…
Ah right, with you now, thanks. As for seeing the wood for the trees, cases like this make me wonder whether I should just run for the hills to be honest with you. Someone trying to gain some education to improve their career prospects after a very troubled childhood who is now encountering a system which says she can’t do that and should simply sign on for JSA instead. Words fail me….
How long ws she with the Godmother? What happened to that relationship?
To adopt “birth parent” as a precursor to “family member” seems a bit tight to me considering adoptive children. What prevents an argument that Godmother was part of her family? If she lived with her for long enough surely there would come a time when that was de facto the case.
On the first part of your question, I don’t think that’s an avenue that is worth exploring for various reasons.
However, I did wonder whether, as a foster parent can be treated as a self-employed person, we might be able to advance a worker-relationship argument of some sort? She was in foster care for at least 5 years as I understand it, so that could work maybe?
Hi…. did the godmother ever get child benefit, if so then the State has already acknowledged that she is the “loco parentis” as by definition child benefit secures parental duties and responsibilities. Therefore she is a family member. Neither the Directive not the UK regulations stipulate that a family member must have a blood or mariage conection to become part of a family.
Further, under s20 placement into foster care the LA become “corporate parents” and have duties to befriend and assist until the child is 21.
Therefore, could the family member for an R2R purpose be a Local Authority ?
Thanks for your thoughts Tony and Nick, certainly present more food for thought.