Right to Reside nasties

and here’s me hoping to have hung up my R2R gloves… Sheesh!

20 y.o son of an EU student. Soon to be trying to establish entitlement to ESA. Parent is in FT education and has a R2R pursuant to that but has kicked son out.

Son remains a family member and we have persuaded certain agencies that he retains a R2R unencumbered by the unreasonable burden test in accordance with reg 14(3) I(EEA) & Art 7(1)(d) 2004/38/EU.

How to convince JCP?

I really want to get this chap onto ESA as he’ll struggle to cope with JSA but can feel the old feeling of dread where it’s an out of the ordinary R2R situation…

Any ideas?

Dan

There is a derogation under article 7(4) from 1(d) for family members except those family members who are spouses, registered partners and dependent children.  Do you know what the definition of “dependent children” is for the purposes of the Directive?  Is it the same as the definition of “family member” under article 2 (c), i.e. “the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);”?  Or is it narrower than that?  If read in conjunction with article 3(2), referred to in 7(4) it appears, at first sight, to support a wider interpretation rather than a narrower one otherwise it would lack a certain consistency.

It’s logical that “dependant children” is more restrictive than “family members” but I have a dependant child. Art 3(2) broadens it where necessary for “other family members”

The key is the “dependency” on my reading, obviously they’re saying “don’t bring your grown up kids with you” but Art 3(2) gives a discretion to facilitate residence for dependants. However where “children” isn’t defined then as long as we can show material dependance akin to CIS/2100/2007 and <21 -both are in the back of the net- then I think it’s still arguable despite the derogation.

Ed… Cheers Paul!

Looking at it again, it seems to me to be clear that article 2(2) distinguishes between children of EEA nationals who are dependant and those who are under 21, implying that those under 21 don’t have to be dependent.  What the derogation does is remove that distinction for direct descendants of students so that the child (meaning a child in its broad sense, irrespective of age) has to be dependent on the EEA national to also have a right to reside.  If that is right the age thing is a red herring and dependency, as you say, is the key.  What do you think?

If I am understanding this thread correctly, I think you do have the problem identified- ie that it is only the dependent children etc. of a student who can have a right of residence as the family member of a student.

The student must still of course have sufficient resources to avoid the child becoming a burden etc. - however, that does not mean the student has to provide those resources to the child and therefore the child’s benefit claim can be made.

You could also consider arguing (if the facts support it) that the son is a jobseeker in EU law who has claimed ESA which is a benefit of a financial nature intended to facilitate access to the UK labour market and therefore must be provided to the son- eg that reg 70(2) ESA Regs (excluding a jobseeker right of residence from being a sufficient one to pass the right to reside test for ESA) is unlawful in the light of Athanasios Vatsouras and Josif Koupatantze v Arbeitsgemeinschaft (ARGE) Nürnberg (Joined Cases C-22/08 and C-23/08). The difficulty with such an argument is you do need to show the claimant meets the EU definition of jobseeker- ie is looking for work and has genuine chance of getting a job. My thoughts on this usually is that it is very hard for the DWP to argue that someone in the WRAG has no chance of working… would kind of expose years of rhetoric to the contrary as the shallow rubbish that it is.

nevip - 14 January 2013 04:19 PM

If that is right the age thing is a red herring and dependency, as you say, is the key.  What do you think?

The age thing may delineate who is a “child” which is why I’ve still got an eye on it.

We agree on the dependancy.

I’ll look at that decision later; cheers Martin. OTOH I don’t need to; he’s not a Jobsseker… yet!