R2R through family member who is claiming JSA

I have had conflicting advice on issue and so wanted to check if a client can derive R2R through a family member (Dutch national) who is claiming JSA (so a workseeker)? 

My client is 23 yr old Dutch national who was claiming IS prior to period in prison.  He has severe mental health problem and so claimed ESA on his release, but has been refused on basis he has no R2R.  He has been here since he was 14, but has never worked.  His only family here are his mother and father; father claims JSA for them both. Father has previously worked, but I am currently unsure of periods. Cl is currently on psychiatric ward but usually lives with his parents (and I think it could be argued he is dependent on them)

Can it be argued he can derive his R2R through his father?  He has appealed ESA decision, but on basis of 5 years residence (so will be waiting for ECJ decision on whether 5 years without working can give permanent residence.)

Any advice greatly appreciated.  Thanks.

There’s no need to prove dependency if you are a family member under 21 so my question would be whether he had achieved 5 years before the age of 21. Dependency is a question of fact and probably needs to be proved rather than merely asserted.

Thanks for that ...  I see, so as my client has five years residence before he was 21 as a dependent of his father, providing his father was working or claiming JSA during this period,  my client now has the right to reside as he has acquired permanent residence .... is that correct? (sorry, I don’t have much experience with R2R issues)

I can’t see why not, but others may know better: I have known the argument succeed at appeal.
DMs never seem to have any idea about people who originally came into this country as the (young, necessarily dependent and school-attending) children of workers.

You will need to go into his parents work/ benefit situation in some detail since they came to the UK.

If he was put into education in the UK whilst a parent was a worker, then the child has a direct R2R through Art 12 of Reg 1612/68 - the right to education. The recently decided case of Lassall in the ECJ (see news item) allows periods prior to April 2006 (when the Citizenship Directive of 2004/38 came into force ) to count.

So if the child achived 5 years in education (provided he entered when a parent was working) he should already have a permanent R2R through Art 12 - this argument has never been tested yet but I think it is a logical consequence of the decisions in Teixiera and Ibrahim.

I say that the child must have entered education whilst a parent was actually working as this is how our Judges are interpreting this right now. There is another strand of thought that says that Teixiera and Ibrahim dont actually say that - it is sufficient that a parent was, at some point, a worker and the child could have entered education after they ceased being a worker and Art 12 will still operate. I think this is up in the air at the moment.

The child’s carer will then have a R2R, irrespective of any other R2R that they may have, due to Teixiera and ibrahim, until the child’s education ceased. This should also count towards the 5 year qualifying period, but again this has never been tested yet.

The problem is then what happens after his education ceased? If the child had not done 5 years in education, then he has to derive his R2R from the parents for the remaonder of the 5 year period, as a dependent aged under 21. As pointed out here, you do not have to show dependency if he is under 21. If the father or mother has worked then this will count, as will periods when they were claiming JSA- before April 2006 due to the ECJ case of Antonissed (see CIS/4299/2007 ) and after April 2006 due to EEA (Immigration) Reg 6(2)(a), as they count as a qualified person.

It may be that the parents are able to show a permanant R2R through 5 years work/ jobseeking, without having to use the Art.12 argument - provided this was achieved before your client was 21, then he can derive his R2R through them.

I hope this makes sense - it is ridiculously complicated. If you need to use periods after the client was 21, let me know.

Thanks for that, really helpful.  My client was quite vague during the first interview and following further research it seems that
the family members have not worked, but have had a continuous claim for JSA. 

I will use your info to argue that he should have permanent right to reside as dependent of a
jobseeking family member for 5 years whilst under 21.

Thanks again for the help.