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ESA right to reside
have a case where an Spanish Citizen who is disable arrive in this country 08-09-09 to live with his parents who are British citizen. He is already receiving DLA due to his disability, He was refuse ESA as he did not pass the RTR & HRT.
Does he has the right of appeal this decision? if so under which regulation of RTR can this case go forward! the fact that his parents are British citizen can count as a dependent family member? any advice and guidance?
Were his parents EU nationals before they became British? If so, when did they naturalise? Was your client with them then? How old is client? What rates of DLA is client on and what is nature of his disability? Sorry about all the questions, just need abit more info!
Thank you for you time!!
Were his parents EU nationals before they became British? No
If so, when did they naturalise?
Was your client with them then? No
How old is client? 30
What rates of DLA is client on: lower rate mobility and highest rate care
and what is nature of his disability? Epilepsy and learning dificulties
thank you for you help
John from LADPP phoned my helpline about this right to reside (R2R) case. We discussed DMG at http://www.dwp.gov.uk/docs/dmgch0703.pdf
Client’s parents (who are British Citizens) have not been outside the UK such that they could count as returning EEA nationals with the same rights as other EEA nationals who aren’t British Citizens.
This unfortunately puts an end to any argument about his having a R2R as a family member through being a direct descendant of EEA nationals where, even though aged 30, he is a their dependant. For the same reason we can ignore the question as to whether he is an “extended family member” (DMG 071238, Directive 2004/38/EC, Art 3(2)).
We also discussed whether he could acquire a right of permanent residence after 5 years – as he’s already been here on ESA for 4 years. He also needs this for his DLA renewal (or PIP transfer) as R2R now applies to those benefits too. As DMG 071196 says, he needs to have resided legally in the UK for five years – which means being a worker or self-employed person, or having been one who has ceased work activity and can acquire the right to reside in the UK permanently without that requirement. Unfortunately he can’t acquire a R2R this way because he has never been nor is it likely he ever will be a worker or self-employed person.
Conclusion is that it looks as though he can’t get irESA any longer nor will he get DLA/PIP any longer on next DLA renewal or PIP claim.
John also asked, does he have a R2R due to his worsening disability. I don’t think he does. The Immigration (European Economic Area) Regulations 2006 as amended by Immigration (European Economic Area) (Amendment) Regulations 2012 (set out at http://www.no8chambers.co.uk/docs/LectureNotesEEARights.doc for example) don’t include any such route to R2R.
I’ve posted this (with John’s agreement) here on the rightsnet thread in case anyone else can suggest any alternative ways forward to help his client.
A possible solution, quite cheeky in fact -
one parent goes does a spell of work abroad in Europe (France/Germany etc)- sufficient to satisfy EU law ie “genuine and effective” who comes back as British National who has exercised treaty rights as a worker - who can now legally be both a British Citizen and an EEA National.
At that point son can be classed as a family member - this dependancy would have to be shown.
To-date, I have yet to see any caselaw/legislation/guidance which prevents such action.
Any thoughts anyone??????
Another one which would certainly apply to Portuguese citizens is that although they had gained British Citizenship they had not terminated their Spanish citizenship and with dual nationality could be accepted as EEA nationals.
A possible solution, quite cheeky in fact - one parent goes does a spell of work abroad in Europe ...
Yes it sounds cheekily good … then I saw Rebecca Walker’s article in CPAG WRB Feb 2014 at page 7. It says the British Citizen has to transfer their ‘centre of life’ to the other EEA state in order to then be able to count as returner with EEA national rights, which may be a tall order in this client’s family’s case. (I tried to attach a scanned copy of the relevant bit here but was defeated by the forum’s ‘no greater than 600 x 800 pixels’ setting.)
The dual nationality option was closed off in 2012 when the I(EEA) Regs were amended after the McCarthy case: a British citizen in the UK cannot rely on any other EEA nationality they happen to hold in order to gain R2R for their family members, except via the “Surinder Singh” route, which now requires moving the “centre of their life” to Europe under the 2014 amendments to I(EEA) Regs 2006
I’m behind the times… Too many WCA appeals!
The obvious thing would surely be for him to apply for British citizenship (if the family can afford the fee).