R2R advice anyone?

I have a client who moved from the Netherlands with his family when he was 12. He is now 23 and is currently a hospital patient.

He has never worked in the UK. He had several JSA claims in his late teens, but ended up in prison and was transferred from there to hospital. He applied for ESA while in hospital and has been refused due to no R2R.

As he has never worked, he does not seem to have any argument in his own right. His father did work when he first arrived in the UK, but he is reluctant to get involved. In any case, the appeal papers seem to suggest that the father has a current ESA claim only on the basis of primary carer for a child in education.

My client has 5 siblings, at least 2 of which seem to be working and may have done so for at least 5 years. However, my client doesn’t seem to be in direct contact with them. This lack of contact with the family makes me think establishing a derivative R2R is unlikely even if any of them have R2R in their own right.

Finally, he has a 2 year-old child, but the mother is a British citizen who has never lived abroad, so he doesn’t appear to have any grounds through them.

I’m running out of ideas, so if anyone has any thoughts they would be greatly appreciated.

I’d not necessarily accept as a given (i.e. simply because it’s what the Department says in its submission) that your client’s father only has a Baumbast right of residence - in my experience, it’s not uncommon for the DWP, when it accepts that someone has a particular right of residence at a specific time and for a specific claim, to then look no further - i.e. it might well not look at whether the father has a permanent right of residence.

If the father does have a permanent right of residence - and this was acquired whilst your client was still his dependant (and remember that regardless of living arrangements, your client was automatically a dependant until he turned 21) then your client too will have a permanent RtR.

So worth pinning your client down on exactly what his recollection is of his father’s (or mother’s) employment and benefit history was in the UK. I understand that your client will probably not have anything more than vague dates and certainly won’t know where his father worked - but this isn’t necessary. And neither does it matter that the father is reluctant to get involved. If, based on what your client is able to tell you, there appears a real potential for the father (or mother)* to have a permanent RtR, then I’d ask the DWP to produce a copy of his/her/their NI contribution record(s) and benefit claim history so as to enable you and the tribunal to determine this issue as a matter of fact - the Department will only require the NI numbers in order to be able to do this. Copy the tribunal in, site Kerr and ask for a direction that the Department produce the goods if you encounter any reluctance to provide the info.

* I know you haven’t mentioned a mother and there may not be one in the equation. But worth bearing in mind that in a situation where there were two EU parents in the UK and they separated and neither had acquired a permanent RtR, it might still be possible for their dependants to have acquired such a right. Although, if not married, one parent might not be able to rely upon periods of the other’s right of residence for their own/to acquire one of their own, their dependants would - and could switch from one parent to the other during the course of a 5 year period to arrive at their own permant RtR.

Thanks for that. The information that exists in the papers suggests that his father’s claim for ESA was made in Feb 2009, which was 4 and 1/2 years after he arrived. It only refers to work he did during the first 6 months of his stay but, even if he actually worked up until the date of the ESA claim, he can’t have accrued a full 5 years.

In my brief and unsatisfactory phone conversation with the father, he did seem to suggest that he was claiming as sick now. If this is the same claim, it would seem to rule out the possibility of permanent R2R for him.

The mother lives with the father and I do not think she has worked, but I will double-check this.

The family must have arrived sometime in 2003 - 2004 then?

If the father worked for the 4 1/2 years prior to the ESA claim, then the basis of the right of residence on that claim would have been the retention of worker status whilst temporarily incapacitated (it doesn’t matter that the DWP think it’s a Baumbast right) - a further 6 months receiving ESA on that same basis would give him a permanent RtR.

At the very least it’s worthwhile establishing how the family supported itself between their arrival and the 2009 ESA claim made by the father.

That’s really helpful, thanks.

I’ll find out as much as I can about the work history and see if there is enough for a case.