R2R Spanish citizen daughter of british citizen

Mother British, father Spanish.  Born in Spain, Spanish citizen and passport holder.  Lived in Spain until 1994 (age 15) when she came, with mum, to live in UK.  Has lived in UK ever since:

2003 married a UK national, had child in 2004 (British citizen).

Separated from husband in 2007, but has not divorced. Estranged spouse was working and probably still is. 

Claimed and received IB for several years until failing WCA upon conversion to ESA. (has never worked)

Gets CA in respect of disabled son (aged 9). 

Claimed IS and was refused on R2R grounds

Any idea?

I cannot see a way around this that doesn’t involve claiming JSA, which I appreciate may be difficut when it comes to work availability.

The most obvious option that suggests itself is permanent right to reside by virtue of five years’ self-sufficiency falling partly after 30/4/06 which is the least complicated time frame for that particular R2R.  Problem then is comprehensive sickness cover and the uncertain role played by the NHS.  I don’t think this has been nailed by the courts yet, but they do seem to be inching towards a view that a private policy of some kind is needed (CH/15/2009 goes into this in quite a bit of detail; in Lepko-Bozua it is kind of implied by omission that entitlement to NHS treatment isn’t enough to satisfy this rule).

Because she was born before 1983, I don’t think she has automatic UK nationality by descent so it would appear that for the time being at least she is only Spanish and nothing else.

That means some innovative solution is needed.  Any possibility that her husband worked in Europe before 2003?

Thinking aloud here ...

1. Did her British mother work f/t or p/t in Spain? (the facts don’t say)

2. If so, could client have retroactive family EEA rights from her mother (pre-EEA regs) and therefore satisfy perm rtr under Reg 16 (possibly using Lassal)?

Haven’t got the brain power to look into it in detail with it being Friday afternoon but thought it worth a shout.