UC and Pre-Settled Status

My client has Pre-Settled Status as a third country national Chen carer for her EU citizen daughter aged 12. The father has not worked in the UK and is out of the picture.
Client claimed UC after 5 years living in the UK. This has now stopped on grounds of no Right to Reside.
Client is applying for Settled Status but as she has a derivative right to reside this has to be on paper and a decision is likely to take some time.
She is making a new claim based on AT which will be stayed.
The High Court decided in the IMA case that a right to permanent residence under the Withdrawal Agreement did not require an application for full Settled Status but arose after five years qualifying residence (para 192)-

https://ima-citizensrights.org.uk/app/uploads/2022/12/IMA-FINAL-judgment.pdf

Any thoughts on submitting evidence of support for the child for 5 years befor the UC claim and arguing that the client has Indefinite Leave under the EEA Regulations?

You can’t argue that client has ILR- she doesn’t. What the IMA case decided is that one cannot require a person to make a second application to EUSS when LLR PSS status expires. That is not the same as saying that such a person then has ILR from that point.

You also cannot argue is that client has a permanent right of residence after 5 years as a Chen carer under the I(EEA) Regs 2016 as preserved for your client- due to reg.15(2) which prevents a derivative right counting towards the 5 year period.

If their CHILD has now acquired a permanent right of residence the Chen carer will arguably then be able to continue to assert a right of residence regardless of self sufficiency - in order to facilitate the WA right of residence of the child. See E v Her Majesty’s Revenue and Customs (CHB)  [2022] UKUT 4 (AAC) That case needs to then be supplemented with argument to show that the same right arises under the WA- effectively, I think that is via (1) client being a family member of her child under article 9(a)(ii) and then (2) client then having a right of residence as the family member of that child per article 13(2).

In terms of a new claim using AT  being stayed- the DWP should be asked not to stay deciding that pending AT (although their operational guidance would suggest they should just refuse it as they (very arguably wrongly) do not think that a third country national can ever benefit from AT.  Staying would arguably be a further breach of client’s article 1 CFR right- and wrong if client would experience hardship - as she will if she is indeed an AT person.

Also, AT should have been considered on the decision to remove the existing award- and can still be considered on that at MR or appeal stage.

Many thanks Martin.

FE v HMRC should cover it.