Colleagues,

Your help would be appreciated...

Q1. Para 60 of Teixeira seems to suggest that the 'primary carer' who may enjoy the RTR will at the same time have been the qualifying 'worker' etc. However, the wording of para 75 of Teixeira refers to 'the right of residence in the host Member State of the primary carer for a child of a migrant worker'. Do you agree the latter suggests that the primary carer can have the RTR even if they (the primary carer) have never been a worker themselves? I am trying to work out the total scope of who might be assisted by this case.

Q3. What are the implications of Teixeira for Accession nationals? Is the RTR status of a parent derived from Article 12 of Reg 1612 outside the scope of derogation?

Many thanks for any thoughts,

Steve

No thoughts, really- just wondered if anyone else has had any?

I have a case which could hang on the same points. In relation to the 'primary carer' issue, my client (who is appealing against a negative JSA decision) is not the primary carer- his wife is. Presumably, if his wife was accepted as the primary carer under Teixeira, my client would therefore retain his RTR as a family member? Client and his wife are both A8 nationals and neither have completed 12 months registered work.

Any thoughts welcome....

Martin at CPAG has helpfully pointed out that in the ECJ case Ibrahim (decided on the same day as Teixeira), the husband was the qualifying worker, yet it was Mrs Ibrahim who obtained the RTR via Article 12 as the primary carer (irrespective of the fact they were separated etc). So the principle is established that the primary carer and the qualifying worker need not be the same person. I therefore cannot see any reason why the man in the case you are referring to would not now qualify as a family member, as you suggest.

So far as the broader problem for Accession Nationals is concerned, my understanding is that only Articles 1 to 6 of Regulation 1612/68 were subject to derogation. If that is right, then Accession Nationals should be able to make use of Article 12 facilitated RTR. Maybe this view is incorrect or fails to take into account deeper complications, and other views would be very welcome. Needless to say such an outcome, even if we think it is correct, would remain highly controversial so far as decision makers are concerned, and it is very likely that attempted claims will be refused, with all the consequent delays waiting for appeals.

If you go for it, I would be very interested to know what happens.

Steve

Thanks for that, Steve. We've been granted leave to appeal to UT so I'll keep you posted on how it pans out.