Hi... interesting case... EEA mother arrives in UK in May 2004 with 13 yr old dtr. Mother works and dtr attends school. Mother commits suicide in Jan 2006 when dtr was 15. Dtr gets pregnant and has baby. Dtr is now i6, with baby, and still attending same school. What is the dtrs R2R and eligibility for benefits !!

Cannot treat her as an EEA student as they must be self sufficient.
Tried Immigration 2006 EEA Reg 15 for permanent residency, but the mother had not been here for the required two years.

Tried Immigration 2006 EEA reg 10(3)which says that ... on the death of the citizen ... if the child is in education... the child retains a right to reside.

Adelphe house are suggesting that although she has the R2R under this regulation to complete her education, that this right is not a "qualifying right" for benefits. realistically however if no benefits then its not practicle. She is now an orphan so going back would be a problem.... WHAT DETERMINES A QUALIFYING OR NON-QUALIFYING RIGHT ??

The problem looks like they are arguing that she is not economically active using Directive 2004/38/EC which gives all EEA nationals 3 months R2R.

However, I don't think the economically active argument holds water. The Directive also holds that residence can continue where the child is enrolled at an educational establishment until the end of the studies.

In CPAG handbook (p1405) it states that family members do not lose R2R simply because of departure or death of the other person. A non-EEA member does not lose right despite death of other person as long as they had one year together prior to death. Equally if there had been another non-EEA parent present they would have been able to claim benefit for your client.

It strikes me that there is also a Human Rights argument here in that she is entitled to continue her education and clearly Adelphi House are accepting this to stop you putting this argument.

This is a bit different to the cases I have seen as it is the child themselves claiming benefit. I would challenge the decision to refuse using Bambaust which clearly holds that there is a R2R and arguing that this means entitlement to benefit. It seems inherently ridiculous that another person could claim benefit for her and theoretically her child yet she can't - she is in effect being punished because of her sad personal circumstances over which she had no control.

(I tried to PM this to you but got undeliverable!)

Thanks Tim .... and Derick .... keep you posted... Nick

I have a very similar one:

Mother (Dutch National) arrived in UK with 4 children on 01/07/03, never worked but claimed IS continuously and had transitional protection as an IS claimant on 01/05/04.

The oldest daughter (18) gave up full time education and 16 hours a week job when her mother died in September 2006 to care for 3 siblings who are all in full time education. She claimed and was paid IS from 16/10/06 -20/02/07 on the basis of s mistaken assumption on DWP's part that she was continuing in work and therefore economically active. When she complained that she was only being paid £ per week when her income (apart from CTC) was nil the claim was stopped although they accepted that the ovepayment was an official error.

As the children were never accompanying anyone exercising their rights as an EEA worker, is it stretching the point too far Baumbast apply to them?

Any suggestions?

Finally Tax Credits are refusing to process the appeal against their decision that she was overpaid CTC for the same period on the basis that 'If the DWP has ended your claim then you are not entiteld to child tax credit' (Accompanied by the further explanation that 'If (the DWP) consider you to be an unreasonable burden on the social assistance system of the UK you will fail the HRT test and in turn fail the right to reside.'- carts and horses spring to mind)

My feeling is that HRMC have no right to delegate their duty to make their own decision on R2R and HRT to the DWP, but they are adamant that they have to somewhat bizarrely citing Reg 3 (4) of the Tax Credits (Immigration) Regulations 2003, I think that they mean Reg 3 (1) Case 4, but I still think that the decision making and appeal rights rest with HMRC not the DWP.

hi... does she have formal custody of the kids ? ... if she has... then issue of whether the mother was exersising an EU right may not be relevant as your client was working... therefore under Baumbast... the parent / person who has parental responibiliy... retains the R2R and her retained worker status on the childrens R2R to remain in education... Could also argue that it is not an unreasonable burden because it is time limited to when the children leave school... I'd appeal against both departments at the same time

Nick- on the point that an Article 12 1612/68 R to R following Baumbast is not a qualifying R to R for benefits-

1. All the legislation says is that the client must have a R to R.
2. the legislation then excludes certain types of R to R as sufficient for entitlement to IS (for example by excluding someone whose only R to R is as a jobseeker). The Baumbast R to R is not listed as an excluded R to R. Therefore it must be a sufficient R to R.

Hi... in my opinion....looking at the directive.... there is no such concept as a qualifying R2R for benefits.... there is either an R2R or there is'nt ... some have specific restrications attached such as self suficiency... or in the first three months of entry...most others are subject to the unreasonable burden upon the state... which creates the removal or loss of the R2R... and therefore the removal of the right to benefits... the problem is convincing the benefit agencies of this.

Does she need to have formal custody to have 'parental responsibility'?

She was still working 16 hours a wekk, and therefore had worker status for a short period after her mother died and she therefore arguably had defacto parental responsibility, is there any mileage in arguing this?

Hi... my origonal case of the 16 yr old school child from Poland whose mother committed suicide and is being refused HB. We now have an HB tribunal hearing date in september in Southampton... Because I also work for the Council (homelessness) the policy does not allow me to represent her... Need some FREE help please... I presume legal aid will be refused on the same grounds of not eligible for benefits.

Urgent contact required as I'm on holiday from Friday 20th.... 02380 832737

Got the decision on my case this week.

Tribunal,didn't accept my Baumbast argument on the basis that

'The children were not intalled in education in the UK during a period of dependence on a paretn who was a worker. They do not derive right to reside from either parent under REulation EEC 1612/68. That ther were dependent on Ms M while she was a worker cannot confer a rigt to reside on them because they are not dependent children of hers. The y are memebrs of her family, but not deccendnets. Therfero she cannot in ture derive benefit from their stuts when she lost her own.'

'The principles set out in the Baumbast case at paragraph 68 are peruasively in favour of a different interpretation but they dpeend on the rights estqablished by Article 12 of regulation 1612/68. These children do not have rights under that Article.'

However, nil desperandum:

The Tribunal did accept an alrernativer argument that my client who had a contract of employment at the time of her mother's death in September and was on unpaid leave until December 2006 retained her Worker status

'Ms M was undoubtdly a worker by reason of her work for P's. That stus subsitsed after she acutally stopped work by reaosn of her other's illness and initially whilst the contract subisted and she hoped to return.' So she got 2 months benefit...