RTR: Primary carer of a worker’s child

Can anyone clafify please?  I’m reading that, a primary carer of a worker’s child in education has RTR.  I have an A8 couple with a child in relevant education.  Dad has worked continually since 2009.  His wife has been diagnosed with cancer and will be in and out of hospital for at least 2 years.  He has now given up his job to care for her and the child (prior to taking advice).  She has claimed ESA and failed RTR.  Assuming dad can retain his worker status should mum have RTR?  I have seen this written in so many different ways I’m confused.

Hi

Was dad working for at least 5 years? Even if it was June 2009 - June 2014 and he stopped working in July 2014, he will have a permanent right to reside (assuming he was working in according with the workers authorisation requirements if they applied to him). Also look very carefully at the circumstances around his employment ending. He might have had periods of annual leave/sick leave/parental leave before his contract was finally terminated. If his job is still open for him you should argue he is still a worker, even if he isn’t getting paid. This might give you enough to make up 5 years.

If dad retains his worker status, then, yes, mum would have a RTR. However, I’m not sure how dad could retain worker status in this case as he would need to be registered as a jobseeker.

As for the primary carer point: article 10 of Regulation 492/2011 gives a right to children of workers and former workers to enter the host state’s education system and complete their education. The European Court of Justice held that primary carers of such children derive a right to reside so that the child can complete his education. But family members of such a person do not have a right to reside.

An alternative approach is if dad can start some kind of self-employed activity, even if only part-time. Doesn’t necessarily have to be much and he doesn’t need to start earning right away, so long as he is taking steps to set up a business (such as taking in ironing).

Matt

Thanks Matt, that’s really helpfull in guiding me to asking the right questions.

Whether he retains a right to reside is irrelevant as to whether she has such a right.  As long as the child was installed with him when he was exercising treaty rights as a worker and then went into education then his wife as a primary carer will have a right to reside based on the child’s right not to be discriminated against in education under article 12 of EC Regulation 1612/68 (codified by Regulation (EU) No 492/2011).

“....the right of children to equal treatment in access to education does not depend on the circumstance that their father or mother retains the status of migrant worker in the host Member State. As is apparent from the very wording of Article 12 of the regulation, that right is not limited to children of migrant workers, and applies also to children of former migrant workers” (Teixeira, ECJ, para’ 50).