Wed 12-May-10 03:25 PM by Martin Williams

See the rightsnet news story of today regarding this.

Just a quick note:

1. At para 7(1) of the guidance it appears the DWP position is that the claimant seeking to claim IS etc following the Teixeira and Ibrahim judgments must be both the parent and primary carer of the child of the person who was a migrant worker. That is wrong in my view as no relationship is necessary- they must simply be the primary carer.

2. At para 7(2) they seem to suggest that the primary carer person cannot the one who has done the work (ie the classic case of a lone parent who works for 3 months and then kids go in to school and she claims IS) - this directly contradicts the facts of Teixeira

3. It is strongly arguable that they are wrong in para 10 to suggest that the primary carer of the kids of an A8 national who has not completed 12 months work will not have a right of residence following these judgments.....

Takes them 3 months to issue some guidance and then they mess it up...

Par for the course.

Interesting I read the memo and thought exactly the same regarding your points 1 & 3. I don't think I agree with you regarding point 2 though as it says "the claimant or the child’s other parent is a citizen of another EEA State".

In terms of the primary carer being a parent I originally thought that it couldn't be right because it goes against the princples of the case i.e. that the child has a right to complete it's education so the carer is given the R2R to enable the child to finish. It shouldn't matter who the carer is, what matters is the fact that the child has R2R and that they need the care. However when I went back to the decisions they keep referring to the primary carer who is a parent etc. I think there will need to be another case taken to the ECJ to clarify that primary carer should refer to anyone e.g. grandparents.

The argument regarding A8 nationals not being "workers" is pretty weak I would suspect. If they are saying they are not full "workers" then wouldn't that mean the child wouldn't be able to access education through article 12 in the first 12 months?

"The argument regarding A8 nationals not being "workers" is pretty weak I would suspect. If they are saying they are not full "workers" then wouldn't that mean the child wouldn't be able to access education through article 12 in the first 12 months?"

and then the parents taken to court for failing to ensure child in education? that would be a good one to argue for someone...

In the red corner: the forward looking liberal minded european legislature. In the blue corner: the inward looking authoritarian minded british governement, some of whose departments couldn't even interpret a bloody pop song. My god its so depressing sometimes.

When I suggested another case may be needed to clarify whether a non-parent can be granted R2R through article 12 there is already one at CoA stage which may be useful:

Lekpo-Bozua v Hackney LBC <2010> EWCA Civ 222
http://nearlylegal.co.uk/blog/?s=ibrahim

Are CPAG aware/involved?

be interesting to see what they say when the appeal comes on for hearing in due course. i could almost see another referral...