Family member - living away from parent

Probably straightforward but I just need confirmation one way or the other from those on her who deal with more R2R cases than we do.

UC claimant is EEA national aged 17 and now estranged and having to live away from her EU national mother- there is no father on the scene and I think he may still live in state of origin. She came to UK at the age of 9 with her mother and siblings. Mother is currently temporarily ill from work (both as employee and self employed - does both).

Am I right in thinking that UC claimant is still a family member of her mother for R2R purposes, notwithstanding the fact that she can no longer live with her?

Yes. Definition of family member in reg 7 EEA regs 2016 makes no reference to need to be living with or dependent on parent for child under age of 21.  In this case anyway the child is likely to have acquired a permanent right to reside because they have been in the UK for a continuous period of 5 years with a right to reside (ie as family member of a worker). Also has a right to complete education if still in education and so a right to reside to do that too (reg 16).

Main issue is going to be proving any of this, even though burden should be on DWP to do so. Depends how estranged they are - if mother will provide proof that she is/was a worker then not so much of a problem but if not then might be more difficult. DWP of course could just check their NI records ... but will hide behind Data Protection even though not asking for any disclosure of actual personal data. As such, may have to get case to a tribunal at which point the judge can issue a direction requesting the DWP records for the mother as there is an exception in the Data Protection Act that allows them to do this, although arguably they should do it before that anyway under same section of the Act. See p371 - 373 of our Migrants handbook for more info on this.

Thank you for the comprehensive reply - unfortunately we haven’t got the Migrants handbook, You are right in guessing that the UC decision makes a lot of noise about client having to prove things about her mother, although in the same breath refusing to consider evidence supplied about her mother because they do not consider the mother would have given consent for it to be provided (due to the estrangement). We are not the agency dealing primarily with the UC but I am making sure her HB (which still applies for her rent - exempt accommodation) carries on in payment. I will pass that information on to the people dealing with her UC claim - many thanks again (and I will buy my own copy!!)