JSA, RTR, derivative rights owing to children in education, JC+ say can’t have RTR as partner can claim instead.

Received the following decision (part of it):

“Being the parent and primary carer of a child who is in general education in the UK and is the child of an EEA worker:

The Regulations state that to derive a right to reside as per Regulation 15A(3) & (4) of the Immigration Regulations 2006, this right will not apply unless the primary carer, and where caring responsibilities are shared, both carers, would be required to leave the UK. Although it has been established that you can no longer exercise a right to reside as a job-seeker and are not exercising any other right to reside, the same cannot be established with regard your partner….

As (partner) is an EEA national and has not previously exhausted a relevant period as a job-seeker, this option remains open to her and has not been ruled out. As it cannot be shown that both you and (partner), with whom caring responsibilities are shared, would be required to leave the UK you are unable to derive a type of right from Regulation 15A (3) & (4).

Once (partner) has demonstrated that she can no longer exercise a right to reside as a job-seeker and is not exercising any other right to reside then Regulation 15A (3) & (4) can be considered.”

They seem to be saying that in the case of couples both must have run out of job-seeker status before derivative rights can be claimed.

It sounds like nonsense to me - surely the couple are a unit and entitled to a family life. It also seems to seek to create an hierarchy of rights.

They are a couple with three children. I can advise the partner to claim JSA - but there would be no HB!

Any thoughts on this would be gratefully received.

Oh that’s bizarre….My gut feeling is the same as yours but I would be most interested in the opinion of one or more of the many RTR forum gurus.

The derivative right of the child to be educated and the further derivative right of the parent whose care is required to facilitate the child’s right are both enjoyed directly under Regulation 492/2011 which allows the child to be educatd under the same conditions as a host state national and under the “best possible conditions”.  And the Teixeira and Ibrahim cases say that such carers are not required to have sufficient resources not to need social assistance (such as HB).

It isn’t necessary for national law to transpose an EU regulation.  While Reg 15A of the I(EEA) Regs does that anyway,  I don’t think that a quirk of drafting should be seen as temporarily suppressing the rights of these children and their carers while they seek work. All Reg 15A is saying really is that you can fall back on a derivative right to reside if you don’t have any other.  It is there to provide a right of residence, not take it away.

Hull WRS - 01 June 2015 01:06 PM

Received the following decision (part of it):

“Being the parent and primary carer of a child who is in general education in the UK and is the child of an EEA worker:

The Regulations state that to derive a right to reside as per Regulation 15A(3) & (4) of the Immigration Regulations 2006, this right will not apply unless the primary carer, and where caring responsibilities are shared, both carers, would be required to leave the UK. Although it has been established that you can no longer exercise a right to reside as a job-seeker and are not exercising any other right to reside, the same cannot be established with regard your partner….

As (partner) is an EEA national and has not previously exhausted a relevant period as a job-seeker, this option remains open to her and has not been ruled out. As it cannot be shown that both you and (partner), with whom caring responsibilities are shared, would be required to leave the UK you are unable to derive a type of right from Regulation 15A (3) & (4).

Once (partner) has demonstrated that she can no longer exercise a right to reside as a job-seeker and is not exercising any other right to reside then Regulation 15A (3) & (4) can be considered.”

Regardless of what rights exist under EU law, I just can’t see where they would get this interpretation of Reg 15A(3) and (4). The bit of the regulation at issue are as follows:

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.

[....]

(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.

[...]

(6) For the purpose of this regulation—

[....]

(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.

So the key thing is their interpretation that your client’s partner is an “exempt person” under Regulation 15A(6)(c) and that this makes a difference.

Note that the definition of exempt person is nothing to do with whether someone who is not an exempt person would have to leave the UK as they say (such wording is found in other paragraphs of Regulation 15A but does not apply to people within the paragraph you want to rely on). Rather the definition is someone who has some other right to reside in the UK.

Is partner an exempt person

The thing here is to look at what they say about the partner:

“you can no longer exercise a right to reside as a job-seeker and are not exercising any other right to reside, the same cannot be established with regard your partner…. As (partner) is an EEA national and has not previously exhausted a relevant period as a job-seeker, this option remains open to her and has not been ruled out.”

It is clear from this that the partner is not currently exercising rights as a jobseeker. So he doesn’t have such a right and is not an exempt person.

Would it make a difference if he was an exempt person?
Furthermore, unless the partner is married to your client he does not form part of her family for EEA law purposes (see Reg 7) and in this situation even if he was a jobseeker it would not change your client’s right to reside.

This is a very creative attempt by the DWP to make a case which is founded on a subtle misunderstanding of the law….

Thanks guys,

I have done the SSCS1 in quite general terms.

I have found an NI decision where the Secretary of State concedes the point C2/11-12(JSA).

It is quite old and I haven’t quoted it yet.