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Forum Home  →  Discussion  →  Income support, JSA and tax credits  →  Thread

JSA right to reside derived from working parents?

Sue123
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EEA Family Support, Children's Centre Calderdale

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Hi, can a single male EEA nationality, 21 years old, who was claiming JSA and it’s been stopped due to not having genuine prospect of work, have derived right to reside based on the fact that his father started work and is now employed?
He is living with his father and mother.

thank you

Martin Williams
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Welfare rights advisor - CPAG, London

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Hi Sue -

Should be no problem on those facts:

I’ll explain it via the I(EEA) Regs 2006 (a really useful consolidated version of these is maintained online here- http://www.eearegulations.co.uk/Latest/Index )

1. Reg 7 provides the following definition of “family member” for your purposes:

7. (1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person—

(a)[....];

(b)direct descendants of his, his spouse or his civil partner who are—

(i)under 21; or

(ii)dependants of his, his spouse or his civil partner

2. Your client is not “under 21” so Reg 7(1)(b)(i) does not apply.

3. Your client is however a “dependant” of his parents and so is a family member under Reg 7(1)(b)(ii).

4. The case to cite regarding being a dependant is CIS/2100/2007  in which (then) Commissioner Jacobs does an extensive review of the CJEU caselaw and concludes:

Conclusion on the case law of the European Court of Justice
44. In summary, the case law is authority for these propositions:
• A person is only dependent who actually receives support from another.
• There need be no right to that support and it is irrelevant that there are alternative sources of support available.
• That support must be material, although not necessarily financial, and must provide for, or contribute towards, the basic necessities of life.

5. You can argue that (1) your client does receive support from his parents and (2) that support is material in as much as they provide him with accommodation which is clearly a basic necessity of life.

6. Your client therefore has a right of residence as the family member of a qualified person -Reg 14(2):

(2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national.

7. Final pedantic point- “derived right of residence” is probably a term best reserved for those who have a right under Reg 15A (Teixeira carers, Zambrano parents, children former workers in education etc)- that is how the term is used in the regs. I would stick to calling this a “family member right of residence” if you need a term.

Hope that helps.
Martin

 

[ Edited: 26 May 2015 at 10:31 am by Martin Williams ]
Sue123
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EEA Family Support, Children's Centre Calderdale

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Hi, thank you very much
will this help him with the fact that Jobcentre is saying that he’s got no genuine prospect of work and therefore they stopped his JSA?
I am not sure how to argue that. Is the fact that he’s dependant on his parent who is working enough to claim JSA?
Because obviously Jobcentre has new rules and they stop JSA if EEA nationals haven’t found employment after 3 months of being on JSA with the fact that they have no genuine prospect of work.
thank you

Edmund Shepherd
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Tenancy Income, Royal Borough of Greenwich, London

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The so-called “Genuine Prospect of Work” test is only applicable to EEA nationals whose only right to reside is as an EEA jobseeker. If any other right to reside exists, the GPOW test doesn’t apply. Correct me if I’m wrong?

Sue123
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EEA Family Support, Children's Centre Calderdale

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Ok so if he’s living at home with parents, who started employment while he was claiming JSA, does he now have a right to reside based on the fact that his parent is now in employment?
Is it worth writing to JCP asking for mandatory reconsideration and state the right to reside that my client has?
thank you

Ros
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editor, rightsnet.org.uk

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I would say yes, link below to recent DWP guidance on GPoW test which shows the sort of info they will require to show alternative right to reside - if you could provide proof of parent’s work with letter will prob help -

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/402043/m-2-15.pdf

Sue123
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EEA Family Support, Children's Centre Calderdale

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thank you very much,
I know this will be a long shot, but would anyone be able to check the letter I am going to send to JCP to see if it’s good? I have never written one like this before.
thank you

dianabagci
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Welfare benefits - Nottingham Law Centre

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Belated I know but still related, what I have understood from CIS/2100/2007 (and article 1(1)(d) of Directive 73/148) is that the support provided to the family member must have also been provided in their country of origin and at the time they came to the UK ?

This basically means a daughter who had worked, had a child, and fallen on hard times cannot rely on her mother’s perm residence status because she (the daughter)  had previously supported herself by working ?

Many thanks.