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Derivative rights - UC?

Rebecca Lough
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Welfare rights - Greenwich Council

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Joined: 23 November 2018

Hi All

Just want to check something. I have a scenario of a 5 year old French national and their Mum, who is a non-EEA national. Father of the child was French but no current contact and never married. Not sure if he’s still in the UK but he had been here a long time when she knew him. Derivative right BRP issued in 2016 under EEA regs on the basis of her being a main carer to her son.

Can she claim UC? She has pre-settled and she has just applied for settled status for them both - son’s has been awarded. Mum has a good working history but currently off sick but I’m not clear that her work history will cut it?

Help please!

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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Is there a typo in that: should it be 15 instead of 5?

If so, I would say there is enough evidence to support a derivative right to reside: if it existed back in 2016 (as evidenced by the residence card), it logically ought still to exist now.

If not, then I assume we are talking about two different children are we?  Is the older one from 2016 no longer in education?  You would need evidence of French father having been a worker in UK during 5-year-old’s lifetime.

Mother’s own work history irrelevant.

Rebecca Lough
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Welfare rights - Greenwich Council

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Hi! No it’s is a five year old. She said it was initially refused and then taken to immigration tribunal and I asked whether it focused on her ex-partner but she felt it was very much rooted in her child who was only born in 2016.

I asked her whether she has a copy of the immigration decision but she’s lost it. It took her from 2016 to 2019 to actually be awarded it. She gets Child Benefit from 2019…

HB Anorak
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Struggling to see how she would have had a derivative right to reside in 2016 with a new-born baby, unless the child was self-sufficient?  In that case, the mother’s work history becomes relevant and might indeed have been the basis on which the child was self-sufficient (as per Chen case).

Obviously not self-sufficient now if claiming UC, and might not have five years’ unbroken self-sufficiency for a permanent right to reside if gaps in work history.  But if child now in school and French father was a worker at some point since 2016, could rely on the more usual Ibrahim-style derivative right to reside instead

Elliot Kent
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Aside from the 2016 derivative rights mystery, can she not rely on whatever grounds were used to award her pre-settled status? I assume that this would have been awarded based on the HO being satisfied that she had derivative rights or otherwise.

Rebecca Lough
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Welfare rights - Greenwich Council

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Ok thanks both. I will see if she can find her paperwork to help us along and otherwise argue re father’s working history.

I was pretty surprised by her status so happy to hear I’ve not missed something obvious.

Rebecca Lough
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Welfare rights - Greenwich Council

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Total Posts: 222

Joined: 23 November 2018

Hi All

Sorry, just realised I typo’d. Her leave was awarded late 2019 when he would have been 3 years and 9 months but not sure that changes anything.