Family member of someone with a derivative right to reside

I have a client (Hungarian nationality) who previously had a right to reside as a worker, and currently should have a right to reside based on her being the primary carer of a child in education.  She also supports her mother who has a serious mental illness .  Whilst she was a worker, her mother had a R2R as a family member and so was able to claim ESA (in addition to PIP in her own right).  However, her mother’s ESA has now stopped - once we get the R2R based on being a primary carer into place for my client, should her mother be entitled to the same right as a family member and again become entitled to income-based ESA?  Thanks Ruth

I’m not 100% sure on this, but as far as I’m aware: it may be that as the family member of a qualified person, the client’s mother had a right to reside for the purpose of claiming ESA. However, if the client’s right to reside is solely as a carer of a child in the UK, then they would have a derivate right to reside. As such they would not be a qualified person, and the mother would therefore not have a right to reside as a family member of a qualified person. Therefore she would not be entitled to ESA because she would not have a right to reside.

Alternatively, if they’d been in the UK for five continuous years as a qualified person they could have gained permanent residence and satisy right to reside that way. Failing that there are certain circumstances under which you can be classed as a former-worker I believe for a limited time, and the client may be qualified that way.

I’d say look into the .gov.uk guidance on EEA Qualified Persons, and Derivate Right of Residence if you have the time.