R2R Extended Family member

Client is an extended family member of EU workers (Client is uncle - father’s brother - of his working nephew and niece).
In Portugal had an accident 20 years ago, dependant on nephew and niece in Portugal since then.
Came to UK with the family. Lived with brother, nephew and niece until they could not cope.
He is now in residential care.
He applied for ESA.
My understanding was he had a R2R as he was dependant on the family in the country of origin and remains dependant on them.
Based on KG & AK v SS Home Dept and Jia C.

DWP say under Reg 7(3) Immig (EEA) Regs 2006 he has to have an EEA family permit, registration cert or residence card.
He has none of these.
He did enter without any problems.

Is this right?
Can anyone point me in the right direction?

I am not sure about the regs you mention, your client had no formal requirement when he entered the UK to have a family permit etc in order to be lawfully here however to claim benefits it’s a different matter and I think the problem is that he is no longer dependent on his family member. Hence his claim to ESA.
Can your client meet the requirements for permanent right of residence and gain entitlement to ESA that way?

Hi

I currently have an appeal going to the UT on this very issue.  Regulation 7(3) I(EEA)Regs does state that an EEA permit is required however I was not convinced that the regulation was drafted correctly given the information in Directive 2044/38/EC.  Were currently awaiting the response from the DWP.

It has long been established that an EU national does not need such adminstrative documents to exercise treaty rights and a family permit in my view is such a doucment.  The position is different for non-eea family members who do.  This is comfirmed in the directive what the entry requirements are for both EEA and Non-EEA nationals and they are dealt with in different sections of the directive.

When drafting the regulations both have been lumped together.  The position has not been helped by anther a decision by Judge Jacobs in respect of a Spanish National (i think), can’t remember the case number off the top of my head, where he has stated, as far as i can tell, that the permit is required for benefit purpsoes.  This decision is however based on two non-eea national immigration decision and I am not sure if it is right.  Hence my appeal.

I am appealing on the basis that that decision is wrong, that EEA nationals do not require such documents and that the regulations have been incorrectly drafted in this respect.  I am also considering arguing that to make such a requirement when it is not required for entry could be breaching the EU nationals treaty rights, but thats still very much in the drafting stage.

If you or any one else have any thoughts please let me know i’d be interest in getting another view