Habitual Residence Test & qualified worker status

My client is a Polish national aged 35. She came to the UK 9 years ago with her parents who came here to work. The client has learning difficulties and has never been able to work other than occasional days. She has been refused both ESA & JSA on the grounds that she fails the Habitual Residence Test & has not attained “qualified person” status. The regulations used were Reg 70(1) of the ESA Regs 2008 and Reg 6 (1) of the Immigration ( EEA ) Regs 2006.

Parents are both working but in low paid employment and are struggling to support the client. It is very unlikely that she would ever be able to work and she is not in a position to be able to return to Poland on her own or live there without support.

Does anyone have any thoughts on this? Even if it is argued that the parents must continue to support the client, I wonder what would happen in the event of their deaths.

I had a similar case with a young man from Portugal with very severe physical disabilities. Obviously clients in this situation do not make a free & adult decision to come to the UK even if they are adults, are not in a position to return to the country of origin but are effectively left with no income.

Can anyone offer any advice please?

She has the right to reside - therefore passes the habitual residence test as the dependent family member of an EEA worker - direct line as they are her parents and she receives material support - they provide her will accommodation and financially support her.  If the parents have had status for 5 years (was all their work registered) then they have a permanent right to reside and she can then get her five years from being the family member of a person with a permanent right to reside.  So the decision should be challenged on these grounds.

Thank you. That is really helpful. Does this definitely apply as she came here as an adult?

Yes. So long as the support she receives from her parents is material support (i.e. it does not need to be financial) that helps provide the necessities of life, she is dependent on them for the purposes of the regs.

Many thanks. I have just written the MR request.