My client is an EEA national who came to the UK March 2003, lived with partner (UK citizen) and had a child. She worked from August 2005 til August 2008. Split from partner August 2008 and made unsuccessful claim for Income Support as a lone parent. Claim disallowed based on right to reside test, appeal pending. Client is currently paid JSA so appeal concerns a closed period.

My (limited) understanding is that the R2R test is satisfied if a person has a right of permanent residence arising from 5 years residing legally in the UK-Art 16 EC Directive 2004/38.

Has case law settled whether periods when a person is not economically active can count towards the 5 year lawful residence?

Another possible way to succeed might be if my client were a self-sufficient person for the purposes of Reg 4 The Immigration (EEA) Regs 2006. Does she count as self-sufficient during the period when not working but living with her working partner? Also in practical terms what does the requirement to have "comprehensive sickness insurance cover"
amount to?

Has case law settled whether lawful residence (however defined) prior to 01/05/2006 counts towards the 5 years?

Thank you for any help

My understanding was that the 5 years have to be as a worker or workseeker, or a family member of a worker or workseeker.

She would be able to use the family member's time working to count towards the 5 years if he was an EEA national.

The problem is that as far as I know, unless her partner (UK national) has worked outside of the UK ('exercised his treaty rights in another member state'), he is not classed as an EEA national: you have to have exercised treaty rights in another member state to be a fully fledged EEA national.

As such the period when she was with him when he was working, would not count towards the 5 years of residence.

I may be completely wrong on this, certainly investigate it further, I did myself have a query about it which I put up on here but I didn't get a response.

Just to make you aware that UK national doesn't necessarily equate to EEA national.

On the self sufficient argument and the medical insurance etc, I really don't know, not used that one myself.

Best of luck!

My understanding is that comprehensive sickness insurance effectively means some private insurance, which few people have - if you do not have this you cannot run an argument on self sufficiency. Also she was not self sufficient as she was dependant on her husband who was supporting her. Normally you could run a family member argument if the spouse was working at date of claim and include periods as a family member towards permanent residence(either as lawfull residence under Directive or Reg15 EEA(Immigration Regs) - however this does not work if married to UK national unless he has exercised Treaty Rights by workseeking/ working in other EU states in past.

The issue of lawful residence under the Directive is up in the air at moment - case of McCarthy is before ECJ though no idea when judgement expected. There are others too but can't remember them right now! Also in Lassal, awaiting a decision on a referral from C of A - DWP are arguing that rights of permanent residence do not apply retrospectively before Directive came in on 30/04/06, though C of A has indicated that this argument will fail.

n the face of it your client may not have a permanent R2R in her own right until August 2010 (due to her work plus JSA claim - short period waiting for IS decision is probably not a problem). If her child is in primary school your best arument is R2R thru Art/12 Reg 1612/68 - see link below;

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topics&forum=106

Sorry - just forgot to mention. Have heard from a local PO that no guidance has been issued following the decisions in the questions referred on Teixiera and Ibrahim, though PO's are being told not to concede on any arguments advanced on those grounds in case the DWP decides to try to appeal further! How daft is that?

Thanks for your thoughts.