i have a cl. aged 74 who came to the uk 16/01/07, she has never lived in uk before.

cl. is disabled, and living with her daughter, who is a lone parent on i.s. came to uk because her son could no longer care for her in cyprus.

cl. claimed pc but has been refused because ps have stated she does not have the right to reside in the uk and is not habitually resident here.

has anybody got any thoughts on this ... if so, please do share them as it would be gratefully appreciated.

pete

have good weekend all

She is a family member of her daughter:
i(EEA) Regs 2006:
Family member
7. —(1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person—

.....
(c) dependent direct relatives in his ascending line or that of his spouse or his civil partner;

The trick will be to get the daughter to be a qualified person.....

Depends on the facts but these sort of scenarios may help:

if she worked at some time in the UK and her children are now in school then she may have a right to reside under Art 12 EC Reg 1612/68 and Baumbast. However it is not entirely clear that this would also allow her to have her mother gain a right to reside in that way as it seems that daughter with a right to reside of this sort is not a worker....

If the daughter was married to an EU national who was still working then she would have the R to R that way....


There are other options as well...

cheers martin , and top of the week to thee !

that's what i was going to look at actually ( honestly guv ). i got some bumf of the internet and it seemed to be a possible course of action so ...

... but please do tell me about the other options ? ? ?

thanx again and hope start to your week is going well.

pete

Other options will depend on the facts... can you post some information about the daughter's work/marriage history etc?

will do old chap after speaking with cl. daughter on the morrow ...

... til then, enjoy the rest of your day / eve and thanx once again.

pete

sad i know posting this info. at home of an evening but i really want to get to the bottom of this, and it's eating away at me so ...

... cl. daughter married a british citizen in cyprus in 1996 and they moved to uk in the same year. cl. daughter came to uk on a 6 month visitors visa, but after the 6 months remained in the uk and applied for indefinite leave to remain. this was granted a year later and between 1997 - 1999 cl. daughter worked at burger king. daughter had to give this work up in 1999 when she had a baby, and she / husband separated in 2000. as far as i am aware husband always worked whilst they were together.

since 1999 daughter has worked very occasionally as an interpreter for medway council, but has never earnt enough to come off benefits, or pay a stamp. her daughter is now aged 8, and i don't know if she/ husband have divorced.

i hope this info. is of help to you martin, and again, top of the morning to thee and thanx for your thoughts and time on this

pete

Ouch....

Right:

1. This is one of those cases where it is much easier to marry a non-British EU national than a Brit. Also one of the cases where a right of residence under an EU provision is better (for benefit rights) than a grant of leave under the 1971 Act.

2. However, it is arguable that your client husband (provided they are separated and not divorced) is a person to whom Reg 9 of the Immigration (EEA) Regs 2006 (SI 2006/1003) applies. Effectively, Reg 9 just operates to treat a UK national as if they were in fact from France/Germany etc. This is only worth doing so that the family members of that UK national can acquire rights under the regulations.

3. The basic conditions for which British nationals can be treated as EEA nationals is as follows:

a) The UK national was residing in an EEA state as a worker or was so residing before returning to the UK. You have problems with this as follows:

i) Did husband ever work in Cyprus?

ii) Cyprus was not an EEA country until April 2004. What to do about this? It can probably be argued that it does not matter that Cyprus only joined after he lived there. However might be a struggle.

b) The couple must have married or lived together in Cyprus (that bit seems fine).

4. If you can meet the stuff in the paragraph above then your UK national falls to be treated as if he was French/German/Spanish etc.

5. Your client daughter is still his family member notwithstanding the separation (see case of Diatta).

6. If he is still working in UK then is a qualified person as a worker.

7. Your client mother is therefore also a family member (dependent relative of his spouse in the ascendant line).
She can then go on to show she has a right of residence (quite apart from the right from her ILR) under Reg 10.


Your big problem will be the fact that Cyprus was not an EU state at time they met and married there and whether or not client daughter husband was working in the UK.
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Failing the above (ie if husband went away from UK for example) then may be able to shoehorn client daughter into something from Reg 10 of these Regs. However, it is not clear that a Reg 10 person can have other people acquiring a right to reside through their own status (if you see what I mean.....)

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Seems a bit weird this one as under the Immigration Act probably mother might get leave to remain if daughter could do maintenance undertaking (no benefits for 5 years but at least there would be some light at end of tunnel). I am not sure if such an application could now be made or not.....

blimey tweacle ! ouch several times ... what a polava

i think that makes sense what you sent to me but is it ok for us to have a chat on the phone re : this matter, be much appreciated but if you're too busy that's cool man. if you can give us your no. i would buzz you so ...

hope your day going well and your week follows likewise.

pete

Hi Pete, I have emailed you my phone number... thought would put here as well - 020 7426 4477.