unmarried spanish woman fleeing DV never worked in UK

Unmarried Spanish woman has been in UK for about 18 months living with Spanish partner who was a worker in UK for a few months but now in receipt of IR ESA for last 18 months. She has never worked in the UK, instead providing care for her partner who has been severely ill. They have 3 dependent children in education. She has her own health problems (HIV and depression) and limited English meaning that her chance of getting a job are not great. Before coming to the UK she worked briefly in Spain (for about 5 months in late 2013 earning about 500 Euros p/m).

Recently her partner has become increasingly abusive culminating in an attempt to strangle her and she wants to leave him, possibly to go into a refuge. His behaviour may (or may not) be linked to an HIV related brain inflammation that affected him earlier this year and caused him to attack his doctors and nurses whilst in hospital. We have done a MARAC referral.

Other than 91 days of JSA (leaving aside Kapow to the GPOW for now) is there any argument for any other benefits for this poor lady should she leave him?

Will she be taking any of the children with her? If so, child in education route….and possible claim for ESA rather than JSA (I’m sure she must be suffering from stress/depression in view of the DV, etc).

Oh Hell- she’s never worked has she? Just realised I overlooked that bit. Sorry Billy….

No chance of her finding a PT job I suppose?

The woman has been trying to find a PT job for a while but no luck so far and it will be difficult for her. It is not 100% clear whether the children would go with her but assuming at least one of them did…

I came across this article from Martin Williamshttp://www.cpag.org.uk/content/think-children-right-reside-through-child from 2012 which includes the following:

“It has to be observed, that every time the ECJ has considered a situation where a child has a right of residence, and the question has arisen about the right of residence of the primary carer, the Court has immediately moved on to say that the primary carer must also have a right of residence to render the child’s right effective. In the cases thus far considered the basis of the child’s right of residence has not changed that conclusion. Thus:
•In Case C-200/02 Zhu and Chen v SSHD [2004] ECR I-09925, the child was self-sufficient in her own right and her parents were accorded a right of residence to enable her to exercise that right.
•In the cases of Baumbast, Teixeira and Ibrahim, the ECJ had to locate the right of residence for the child in the fact that they were the children of those who had been workers and were in education. However, again, once a right of residence for the child was recognised, it followed, for the Court, that the parent-primary carers also had such a right.
• In Zambrano, the children had an EU law right of residence in their own state as EU citizens and their carers had a right to reside with them in order to give effect to that right, as otherwise they would have had to leave the EU.

Thus, in all these different scenarios, the ECJ went on to find that the fact that the child had a right of residence meant that her/his primary carer too had to have such a right (to facilitate that of the child). It can, therefore, be argued that whenever a child has a right of residence then the primary carer of that child must have a right of residence. Furthermore, it can be argued that to deny the primary carer of the child of a worker a right of residence would, because it would deprive the worker’s child of an effective right of residence, restrict the right of that worker to move freely to work within the EU and possibly would raise similar articles under the charter to those highlighted by the AG in lida.”

Does anyone know if this still holds? And whether it applies even though the parent who would be the primary carer (my client) was never married to/in CP with the man who retains worker status through temporary incapacity? I can’t quite work this out from the article and CPAG etc., seems to suggest not.

This argument still works- we won an appeal on this in the FtT about 3 weeks ago. I have run it once before and we won that time too- DWP did not appeal. I suspect they won’t appeal this time either.

Martin

If one parent has worked, child goes to school then moves on with the other paretn the child retains R2R and so does the parent with care. As I recall those were the facts in Ibrahim..

The child has right to reside under Reg 15A(3) of the EEA regulations
The Primary Carer then has right to reside under Reg 15A(4)

Thank you all very much.

I have now also found the relevant bit in the DMG - dmgch0703, 073387 - 073388