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Permanent residence - dependent (adult) child
Help please!
I have a Portugese national client who has been in the UK since he was a child. Despite him being here 24 years it’s been a real struggle to find his 5 years.
Client has 5 years of jobseeking, except for a two week disallowance for not actively seeking work. If his temporary absence (a 3 week family holiday) did count towards his 5 years he’d have acquired his permanent residence just before that disallowance.
I know the DWP position is that the temp absence doesn’t count so I argued that he had an alt R2R as a family member of an EEA worker/jobseeker (dependent child). Dad is claiming JSA and working p/t as a cleaner.
My question is on the dependence point. Although he was 27 (at the time) and claiming JSA(IB), he still lived at home with his parents. He has never lived independently (social housing with dad as the HB claimant) and dad buys all the food, pays household bills etc. I naively thought it wouldn’t be a problem as all he needed to show was material support and him providing accommodation would be sufficient…
The DM has not accepted that he was a dependant child during the 2 week break in his entitlement (or now for that matter as it is accepted that dad now has permanent residence). DM states that because he was” claiming JSA in his own right and was registered at the Jobcentre, as actively seeking, and capable of, full time work” they do not consider that he was dependent.
Elsewhere in the decision, they return to why he is not dependent with the argument that the son has been claiming his own benefits for years, JSA is intended to cover all living expenses, dad does not get any benefits paid to him for son, dad is on JSA(IB) and can’t support him etc.
Any thoughts please? I’d be grateful for any help/opinions.
Thank you!
I cannot see anything in the rules that says getting support from the state precludes also being a dependant.
On the subject of the absence abroad, have you looked at Idezuna (EEA - permanent residence) Nigeria [2011] UKUT 00474 (IAC)? The decision disegarded a lengthy absence abroad for the purposes of calculating 5 years’ legal residence and, indeed, counted it towards the five year period. SSWP v Dias Case C325/09 makes interesting reading as well, if you haven’t already, on absences and permanent residence.
I can’t comment on the dependency question, as I haven’t made the argument myself. However, I would say that DWP’s opinion that JSA is sufficient to live on is not a truth universally acknowledged and I would say you’d struggle to find a substantial number of people who can live on JSA for any substantial length of time without relying on support from other people. I’d be interested to read the responses here on this question.
I wouldn’t expect DWP to back down and I would be inclined to get it in front of a tribunal as soon as possible.