Zambrano (again) and PC

Second opinions welcomed.

Client is Spanish. In summary:

Worked in UK for 8 years. Married UK citizen, 2 children (born whilst he was living and working in UK). Marriage broke down, they divorced, client returned to Spain (where he lived for the following 9 years so no permanent ROR argument). Children and ex wife remained in UK. Ex wife became unable to care for the children due to health issues. Soc Services contacted client and asked him to return to UK to care for the children (who are both in local schools). Client did so. Claimed PC- refused (RTR). Client appealed (is currently recieving JSA, CTC, CB, HB/CTB) on basis of being primary carer of school age children.

PS argues that following SI 2012 2587 client cannot derive RTR via Zambrano (as the children are not forced to leave the EEA and could live in Spain with their father).

I’m losing the plot a bit on where things currently stand with Zambrano arguments post-8/11/12. Can anyone see anything I can use to argue PS is wrong?

This is just a quick reply for now.  They are right.  Zambrano doesn’t apply for the reasons they give.  You should be looking for EC Regulation 1612/68, Article 12 rights following the line of case law developed from the ECJ decision in Teixeira.  I’m not sure how his leaving the country effects that without further thought but it’s interesting that he has been awarded JSA.

Thanks Nevip. PS is arguing that because client was out of the UK for so long he can’t rely on his earlier period of residence in the UK to derive Article 12 rights. He’s receiving JSA on the straightforward basis of being a jobseeker (he’s in his early 60’s and is only just old enough to have a route to PC anyway).

There’s actually no financial advantage to the appeal succeeding (other than the few weeks between PC claim being made and JSA claim being made following the negative PC decision) and client is hoping to find work, but I’d like to get to grips with the PC issue and it seems to be alluding me.

The reasoning in the Teixeira judgment runs like this.  One of the child’s parents has exercised Treaty rights, say by having worked in the UK.  Child was installed with parent while exercising Treaty rights.  Child then enters main stream education.  Child has right to reside under Article 12.  Primary carer of that child then has right to reside under Article 12 in order to give effect to the child’s Article 12 right not to be discriminated against, as he would otherwise have to leave the UK.  It is the child’s Article 12 right that is the fundamental issue in Teixeira cases.  Once that is crystallized then the question is can that right be frustrated.  If not then the primary carer must be given a right to reside in order that the child’s right is not so frustrated.  If that line of reasoning is correct, then the father’s return to Spain for a period is irrelevant and a red herring.  However, I suspect that because your case is distinguished on the facts then the DWP will dig its heels in and let the tribunals sort it out.

Thanks Nevip,

Much appreciated. I think I can see wood for trees again now.