Derivative R2R -  meaning of “shares equally the responsibility for AP’s care with one other person who is not an exempt person.”

Couple, school age child. All EEA nationals, neither parent has Right to Reside other than that one has derivative right as primary carer of child in education whose parent was working in UK for common period… etc.

Now, other parent cannot count as a family member of spouse as their only R2R is derivative.

So presumably only the one with R2R can claim (UC reg 3 ) so only a single Standard Allowance.

BUT just wondering about the meaning of Reg 16 of Immigration Status (EEA) Regs 2016 -  and whether this helps:

“(8) A person is the “primary carer” of another person (“AP”) if—
(a)the person is a direct relative or a legal guardian of AP; and
(b)either—
(i)the person has primary responsibility for AP’s care; or
(ii)shares equally the responsibility for AP’s care with one other person who is not an exempt person.
(9) In paragraph (2)(b)(iii), (4)(b) or (5)(c), if the role of primary carer is shared with another person in accordance with paragraph (8)(b)(ii), the words “the person” are to be read as “both primary carers”.
(10) Paragraph (9) does not apply if the person with whom care responsibility is shared acquired a derivative right to reside in the United Kingdom as a result of this regulation prior to the other person’s assumption of equal care responsibility. “

Does “shares equally the responsibility for AP’s care” include couples living together (married or otherwise) or do you think it just refers to shared care determined by the courts ie where parents living separately?

Because in this case, if child’s parents are both primary carers and if child could not continue in education if both parents left, then both parents would have R2R through derivative right of child in education and joint UC claim could be made with couple rate Standard Allowance???

I think it is aimed primarily at couples who are still together - the case described is exactly the kind of case the regulation intends to cater for.

There is a recent UT decision saying that separated parents who share custody can be covered as well, but I think that is an advantageous side effect of something that was drafted principally to cover couples who are not separated.  I think that view is backed up by para (10) which is saying:

- mum and dad can both have a derivative right to reside as a couple
- but if mum and dad are separated, mum/dad’s new partner cannot

Thanks, that makes perfect sense - so in that case as both have derivative R2R as joint primary carers there would be a couple rate Standard Allowance -
I suppose if Mr left then came back again some time later para 10 would kick in and even though they might have counted as joint primary carers when together, the separation would change that and there would only be single SA?

We were trying to think of situations where there would have to be a single SA in an EEA couple case,  because in most cases the “In Great Britain” partner would confer R2R through being a family member.
I suppose another one would be a couple who are LTAHAW but not regarded as in a durable relationship.

Or in a durable relationship but without a residence document; or where one member of the couple has a retained right of residence under Articles 12 and 13 of the Directive/Reg 14(3) which I don’t think ca be passed on to further family members; or where one member of the couple only has a right to reside because they are a family member of someone else (eg estranged spouse, or dependant direct relative) .  I think in all those cases you could have one member of a couple who has an EEA R2R while the other member does not.

yes- no double piggy backing!

thank you!