Terminally ill EU husband, 3 kids, no R2R

Sorry, this is another complicated one….
Husband is EU national who came to UK to work in 2013.  His wife and 3 kids joined him (youngest child now 6).  She is Nigerian nationality with a residence document for a family member of EEA national, the kids Italian.  He was diagnosed as terminally ill in 2014 and finished work on grounds of ill health.  PIP for him and CA for her successfully applied for and CB, CTC HB in payment.  We helped the wife to make a claim for IS on the basis she is a carer.  This has been refused under reg 7(1) as defined by reg 6(1)(b) on the basis she has not shown she is a family member of a qualified EEA national.
The children are in FT education and I had assumed this would give her a derivative R2R.  Am I wasting my time?

I’d agree- so long as he was working in the UK whilst the kids were present she should have a RTR via him (and via the school-age child).

Alternatively, if he was employed for two full years before finishing work he’d have a permanent ROR (and she would have the same).

On the permanent rtr the requirement is to have been working prior to becoming permanently incapacitated and to have resided rather than necessarily have worked for two years in the UK. See p 180 - 182 of our benefits for migrants handbook on this and what constitutes residence.

He was in employment for 18 months so the 2 years doesn’t apply unfortunately. He has been refused r2r as he doesn’t hold worker status as he’s not temporarily absent from work (being as he’s dying) so it will have to be on the back of the children I think.

Sorry to tag on to the back of this, but I have a similar query and am just looking for clarification.

Man is a Syrian National and moved to UK in July 2007. Is married to woman who is also a Syrian National. 4 kids, 2 born in UK and 2 in Syria. He worked 07/09/13-12/09/15, and then ended work due to ill health and was claiming ESA (Failed WCA and currently going through MR).

We applied for PIP and he has been awarded SR Daily Living and SR Mobility for 10 years. Im looking at whether his wife can claim IS and CA instead of his ESA? Based on what was said above, he should have perm residence no as he worked for 2 years prior to giving up work for health reasons, so would this allow IS and CA to be claimed by his wife?

Any thoughts gratefully received.

thanks
Andy

The permanent right to reside as a result of permanent incapacity is an EEA right of residence - no EEA nationals in your question so it doesn’t apply.

The right of either member of this couple to claim means-tested benefits depends on their immigration status under UK national law: do they have leave to enter/remain, if so is it time-limited, if so does it carry a condition preventing access to public funds.  This should be easily established from the passport sticker or plastic card.  My guess would be they are refugees with five years’ limited leave to enter the UK and no conditions (actually looking at the dates Indefinite Leave is more likely by now), which means they can claim means tested benefits, but that is what you need to check.

Great, thank you. Il do some additional digging and see what it throws up.

So, going back to my original post, am I right in thinking it’s as simple as below?

“Mrs A has a derivative right to reside as she is the primary carer of children of an EEA national who was a “worker” in the UK and those children would be unable to continue their education if she were required to leave
The Immigration (European Economic Area) (Amendment) Regulations 2012 (SI 2012/1547).”

Yes, simple as that.

Just checking in CPAG’s ‘Benefits for Migrants’ handbook (p170/1) - could also say that right of residence of primary carer of worker’s child in education builds on residence rights of child (under Article 10 of EU Regulation 492/2011), which are necessary in order to be educated in state where parent is a worker, and the ECJ decision in Baumbast - here’s a link -

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61999CJ0413

In addition, following the ECJ decision in Teixeira, there’s no need for the carer to be self sufficient on order to have residence right - here’s a link -

http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1454077359908&uri=CELEX:62008CN0480

Excellent!  Thanks all; as always.