EEA Former family member with British children

Would be good to have a separate topic subject for RtR and HRT. I have put this question in the UC thread as this is what I need to know if my customer can claim.

I have a Polish national who has been married to a British National for 14 years. They have separated but not divorced. They have two children (British passports). They have NEVER lived in the UK as a family, they lived in Dubai. He is still there but she has been living in the UK for a year in a house they bought outright.
Children are 9 and 12 and in FTE but she has never worked. She has been living off her savings since last year.

My usual cases would have lived in the UK together so this scenario is a new one for me.  I am struggling as I am not sure she can even get her rights from being separated as he does not live here and hasn’t done for some time. He isn’t working for a company which are UK based either - •the separated spouse or registered civil partner of an EEA worker who is living in the UK but you have not yet divorced (or dissolved your civil partnership)

Anyone else had a case like this?

i think your polish national can only rely on her EU rights.  She can’t derive anything from her husband as he hasn’t been exercising treaty rights in the EU…..

McCarthy is relevant

http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2008/641.html&query;=(“right+to+reside”)

there will, i have no doubt, be other cases but this is the one that springs to mind…..claimant was Irish, resident in UK, jamaican husband - so sightly different underlying facts…but couldnt rely on irishness as she hadnt been exercising treaty rights (she’d always been in UK)

surely this situation is a Texeira type situation - carer for british (EU) citizen children in education?

ClairemHodgson - 03 May 2018 01:54 PM

i think your polish national can only rely on her EU rights.  She can’t derive anything from her husband as he hasn’t been exercising treaty rights in the EU…..

McCarthy is relevant

http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2008/641.html&query;=(“right+to+reside”)

there will, i have no doubt, be other cases but this is the one that springs to mind…..claimant was Irish, resident in UK, jamaican husband - so sightly different underlying facts…but couldnt rely on irishness as she hadnt been exercising treaty rights (she’d always been in UK)

surely this situation is a Texeira type situation - carer for british (EU) citizen children in education?

Thanks, used that case law a lot however it’s the fact that she has never worked in the UK at the same time the children have been resident here and in FTE and neither has the father that makes it a different case from the usual legislation that is throwing me as this does not apply in the Texeira/Ibrahim.