Person Subject to "no recourse to public funds" condition and derived right to reside

It looks obvious, but I wanted to check and I can’t find immigration advice to confirm to me that I am on the right lines

Person is subject to immigration control and has limited leave with “no recourse to public funds” condition.

He appears to have derived right to reside under regulation 16 of the Immigration (EEA) Regs as his child has dual EU/non EU nationality; the other parent is working (and has been working) full time in the UK; and the child is in education. The courts have placed the child with our client.

As I read Schedule 3 to the Regs, the “no recourse to public funds” condition should not apply for so long as he has a R2R under the regulations, therefore he should not be in breach of his “no recourse” condition if he claims HB, CHB, CTC and JSA

I would be grateful if anyone with greater experience in this area could confirm or correct me.

Would the client have to tell the Home Office that he had claimed benefits, even if he has a derivative R2R?

It might be obvious however it’s dangerously close to a criminal offence to give immigration advice so you might struggle.

gov.uk shows two registered Immigration advisers with 25 miles of “Wirral”

Migrant Help

Address: Birley Court
Percy Street
Liverpool
England
L8 7LT

Telephone: 
Fax: 
Email: Not Available
Website: http://www.migrantukhelp.org
Advice: Level of advice: 2
Asylum advice
Immigration advice

Refugee Action

Address: Refugee Action Liverpool
Kuumba Imani Millennium Centre
Liverpool
4 Princes Road
England
L8 1TH

Telephone: 0151 214 3020
Fax: 
Email: Not Available
Website: http://www.refugee-action.org.uk
Advice: Level of advice: 3
Asylum advice
Immigration advice

 

And further to what Dan said, it does not necessarily follow from the fact that the courts have placed the child with your client that he has a derivative right of residence. Yes, he’s the primary carer and yes the child is in education, but would the child necessarily be prevented from continuing their education in the UK if your client were to leave?

In other words, isn’t it possible for a child to be ‘placed’ with one parent by the court without the court simultaneously going so far as to decide there are no circumstances in which the child could live with the other parent…....

Thanks both - I couldn’t get on one website any the other, as far as I can see locally, only deals with asylum cases in Liverpool. I have emailed the Aire Centre to see if they will advise.

I take your point about whether the son has to be with one parent - my impression from the social worker was that there were significant concerns over the child which led to placement with our client and his exceptional leave was granted because it was in the best interests of the child, which indicates it is more than simply which one of two suitable parents should have residence

Thanks again both for your input, much appreciated

Brian - yes, from what you now say I don’t think there’s any doubt that reg. 16 is satisfied. And I’d say the Schedule 3 conditions also.

But i) as Dan says, to advise that the public funds restrictions can therefore safely be ignored is to stray into the dangerous territory of giving immigration advice and ii) it may well be that the court having placed the child with your client in the circumstances you have described could allow a persuasive case to be made to the HO for a variation of his leave conditions - i.e. lifting the public funds restriction, because as things stand (and unless the Sch. 3 exception applies) he can’t even claim CB/CTC for the child. And he’d want specialist immigration advice to do this.