Permanent Residence for A8 Children

If an A8 national came to the UK as a 14 year old (in 2004), then went straight out to work at 16 (but didnt register under WRS), would she be a permanent resident now after working for 5 years?

I am assisting a dependant family member

It’s actually her older brother I am assisting with an ESA claim.
This girl is the only family member who is working and supporting the family.
My only argument seems to be that he is a dependant extended family member of a worker (Article 2 I think), as he has had a complete breakdown, hasnt worked since the accession,and never completed a full year under the WRS.

Thanks TomH for your response.

With regards to the parents, my client tells me he came here before the rest of the family to work. However, he never completed a full years WRS, despite registering many times. The mother still lives with the daughter, and I am unaware if the father is still alive. None of them completed a years WRS.
My client has moved in with the daughter due to his psychosis, and despite pleading with my client to apply for JSA, he keeps getting signed off sick.
The daughter/sister is now supporting them all.

MR and Others (Extended Familly Members) [2010] UKUT 449 (IAC) is looking at questions regarding the need for a permit (I believe),
but I still need to investigate this further and would need to await this decision before submitting.

I’m not sure if he would qualify for DLA.

My knowledge of the Mental Health Act is neglible and may need to research this (he was in a mental hospital before being sent to his sister). Any ideas welcome.

LOL I meant I’m not sure if his care requirements are substantive enough to qualify for any level of DLA.

I have some doubts about whether the CPAG book is right on the issue of whether the issue of a permit is necessary to have R2R as an extended family member. The footnote refers to CPC/3588/2006 (a pre residence directive case concerning a non EU national) in which Judge Jacobs decided that reg1608/68 did not give any r2r, just the procedural right to apply for a permit to someone who has a r2r via domestic law (the 2000 Regs). In terms of extended family members 1612/68 did not go anywhere near as far as 2004/38. The relevant bit was in art 10(2):
“Member States shall facilitate the admission of any member of the family not coming with the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes”
Jacobs decided this just gave the right to apply for documentation and no right without it. This “facilitating” is very different from the situation after the directive with very specific rights to reside for beneficiaries in art 3 of the directive and I don’t think the same principle can apply. The requirement for residence cards where non-EU nationals are concerned is in Art 9 of the directive, para (3) of which says that the sanction for not applying for one when you should makes you “liable to proportionate and non-discriminatory sanctions”. I don’t think this fits with an approach that with no residence card comes no right to reside.
The 2006 regs does seem to require a person to have been issued with a residence card / permit. Reg 14 gives family members a right to reside and reg 7(3) treats extended family members as family members where they meet the conditions of reg 8 and have been issued with a permit, card or certificate:

“…a person who is an extended family member and has been issued with an EEA family permit, registration certificate or registration card shall be treated as the family of the relevant EEA national…”

So the regs seem to impose an extra restriction not in the directive. I’ve had a quick scan of MR & others and the questions for the ECJ and it doesn’t look like this issue will be directly addressed in that case, although it could get useful answers on questions about relying directly on the directive.
I have had a few appeals where the issue was whether or not a person was an extended family member and the DWP have never raised the issue of documentation. Have other people had different experiences?
On the issue of residence permits and the like for EU nationals generally the following is from the ECJ in Dias
“The grant of a residence permit to a national of a Member State is to be regarded, not as a measure giving rise to rights, but as a measure by a Member State serving to prove the individual position of a national of another Member State with regard to provisions of European Union law (see Case C-408/03 Commission v Belgium [2006] ECR I-2647, paragraphs 62 and 63 and case-law cited).
49     Such a declaratory, as opposed to a constitutive, character of residence permits, in regard to rights, has been acknowledged by the Court independently of the fact that the permit in question was issued pursuant to the provisions of Directive 68/360 or Directive 90/364 (see, to that effect, Commission v Belgium, paragraph 65).”

Thats very interesting Damian.

I presume we are all appealling to Wick, so we should expect the same answers as you, so it is encouraging me to put my submission in earlier than expected.

I havent actually read MR and Others, but have read one of the questions is

Can such other family member referred to iin Question 1 rely on the direct applicability of Articl 3(2) of Directive 2004/38/EC in the event that he cannot comply with any requirements imposed by national legislative provisions?

If that question was answered positively it may mean that a person could have an extended famly member right without the need for a permit.

This is my first extended family member case, so I am still finding my way around. Thanks for the feedback.

Damian-

I was the unfortunate rep in CPC/3588/2006.

The CPAG Handbook is right on this point in terms of the currently declared authorities. Although a pre Directive case then CPC/3588/2006 cannot be distinguished on the basis that all that was required under Art 10 of 1612/68 was the “facilitation” of residence for other family members. That is because this wording has been carried over almost exactly into Article 3(2) of the Directive:

2. Without prejudice to any right to free movement and residence the persons concerned may have
in their own right, the host Member State shall, in accordance with its national legislation, facilitate
entry and residence for the following persons:

(a) any other family members, irrespective of their nationality, not falling under the definition in
point 2 of Article 2 who, in the country from which they have come, are dependants or
members of the household of the Union citizen having the primary right of residence, or
where serious health grounds strictly require the personal care of the family member by the
Union citizen;

(b) the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and
shall justify any denial of entry or residence to these people.

The fact that this refers to the “facilitation” “in accordance with national legislation” of residence for such persons has led various UK Tribunals and Courts to conclude that the Directive does not itself create any enforceable rights for such persons to reside- rather it simply creates a requirement that Member States have national provisions (hence the referral discussed above in this thread which is really looking at what happens when Member States have not drafted such national laws and asks whether someone can rely upon the Directive itself in such a situation). See for examples of such decisions ones like KG and AK v SSHD [2008] EWCA Civ 13. See also Bigia v ECO [2009] EWCA Civ 79.

I agree you have an argument with the Dias points (that was what we were saying in CPC/35882//06 although referring to much earlier caselaw on residence documents. However, the difficulty is that:  the rights do not exist within the Directive itself but within national law and national law explicitly requires the card then .......

hbinfopb:

Note that the requirement for the dependence to exist in the country of origin point - in Pedro (in which Ms Pedro was a CPAG client) the Court were considering “dependence” for a full (Directive 3(1)) family member and not for an extended (Directive 3(2)) family member.

We conceded in that case that dependence would have to exist in the state from which person has come for an extended family member (as that is what the Directive says). Indeed that was one of our arguments- because the Directive says it for extended family members it must be the case that for full family members there is no such requirement.

See the following link for an extensive discussion regarding the tensions between EC directives and the national legislation of member states.  Directives must be incorporated into national legislation within a given time frame and rights, as Martin indicates, are not created until they are so incorporated.  If member states have not enacted the required legislation within the appropriate time frame then people can rely on the directives themselves and their particular wordings.

Furthermore, the national legislation must give full scope to the directive and not restrict that scope in any substantive way.  Judge Jacobs in CE/2010/2010 is effectively saying that on this particular point the national legislation of the UK does not substantively restrict the scope of the directive and that would seem to be the position for now.

http://www.rightsnet.org.uk/forum-archive/index72a5.html#7561