I have been referred a client who came to Britain from France at the age of 9yrs. She is now 17ys old. She was living with her mother until I believe she was 16 however they are now estranged. With the help of her Social Worker she applied for IS/HB/CTB. Income Support refused her claim on the grounds that she failed both the HRT and Right to Reside tests.

I would have thought that the HRT was a no brainer as she has been here continuously for 8 years, has attended full time education since she arrived, has GP, friends, assisted by Social Services for sometime. However the Right to Reside was more tricky. As she is estranged from her mother she cannot retain a right to reside through her, so I wondered whether she could be considered under the 5 year residency rules?

Estrangement does not affect her rights as a family member (under 21) of either her mother or father - I had a similar case which we won on appeal as the client's mum was a worker in the UK.

Wed 13-Jan-10 10:26 AM by ros.white

I agree - reg 14(2) of the Immigration (EEA) Regs says child of qualified person has to either be dependent or under 21.

That's ok if mother or father qualified person e.g. as worker or workseeker.

If not, 5 year qualification for permanent residence is still up in the air. Court of Appeal has referred to ECJ in Lassal and Dias to see (amongst other things) whether or not have to have been here for five years with right to reside under I(EEA) Regs or just been here legally (like your cl). I think appeals with those issues are being stayed pending outcome of ECJ referrals so worth appealing IS/HB decisions on grounds that does have permanent right to residence because of more than five years legal residence.

Clearly all that going to take a while and outcome far from certain so if neither parent qualified person might have to consider claiming jsa or getting part time job so as to safeguard HB at the least.