Right to reside

Hi

I have a case concerning an EU national with an Egyptian wife, they have 2 dependent children in education, for whom they have joint parental responsibility. The EU national worked as an employee in the UK for around a year, he is now in self-employed work but this is arguably marginal and ancillary (he does a around 3 hours a week). His wife, the Egyptian national, is working full time, but this is irrelevant I believe. They have claimed UC.

The EU national’s worker status bestows up the children the status of worker. UC have accepted that this then bestows upon a ‘primary carer’ a derivative right to reside, as the primary carer of a worker’s child in education, and consequently they have accepted the UC claim, but with an applicable amount appropriate to a single adult only. They are arguing that there can only be one primary carer, in this case they appear to have arbitrarily chosen the EU national as the primary carer.

I’m arguing that both husband and wife have a derivative right to reside as they are joint primary carers of a worker’s child in education (consequently they should have an applicable amount appropriate to a couple). I can’t see any reason why they shouldn’t be able to under reg 16 of the Immigration (EEA) Regs 2016; a derivative right to reside does not appear to be restricted to one primary carer, and it is acknowledged in the regulation itself that a person may have more than one primary carer.

Does anybody have any thoughts on this? 

Many thanks

Alex

Paras (8), (9) and (10) of Reg 16 are surely aimed directly at exactly this situation: a couple who are jointly responsible for their children can both have a derivative right to reside.

Alternatively, if they are saying that his self-employment makes him an “exempt person”, which in turn prevents her from having a joint derivative right of residence, well then she has a right to reside in the conventional way as a family member.  It’s got to be one or the other: family member or joint derivative.  Either of those is sufficient to include her in the UC assessment.

That was my feeling; those paragraphs specifically mention people who are jointly responsible for a child.

The DWP aren’t arguing that the EU national is an ‘exempt person’ due to the self-employment, as they initially refused UC entirely as they said his work wasn’t genuine and effective. They then revised the decision to allow the claim with a single person’s applicable amount when we pointed out his history as a worker and the fact that his children are in education. They seem to accept him as having a derivative right to reside, but don’t accept that she does, because apparently ‘regulations state that only one parent may derive such a right’, but I can’t see any basis for this argument in the regulations themselves. 

Thanks for your thoughts, much appreciated.

Alex

Hi Alex,

It looks like the DMG would endorse this view this states:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/690047/dmgch0703.pdf

Meaning of “primary carer”
0 7 3 385 A person is to be regarded 1 a s the primary carer of another person (“the child”) if t hey are a direct relative or legal guardian of the child and 1. t hey have primary responsibility for the child’s care o r

2. they share equally the responsibility for the child’s care with one other person (“the joint primary carer”) provided that the joint primary carer is not an exempt person Note 1: t he term “direct relative” is not defined in the Imm (EEA) Regs but should be taken as including direct relatives in the ascending line (i.e. parents, grand parents, great grandparents) of the child, but not uncles, aunts, cousins etc.

Note 2: a person is not to be regarded as having responsibility for a person’s care on the sole basis of a financial contribution towards that person’s care 2 .

There are also some useful comments in NI case MA v DSD (JSA) [2011] NICom 205).

See para 13:

“The Department, however, sees no basis for concluding from the CJEU judgments that it was intended that only single parents can derive a right of residence from their children via Article 12 and that consequently, where a married couple are concerned, that only one member of the couple can have a derived right.  The Department finds no direct support for such a proposition in this case and indeed is of the view that both the terms of Article 12 itself, particularly the reference to the State’s duty to encourage all efforts to enable children to attend courses under “the best possible conditions”, and Article 8 of the European Convention on Human Rights (ECHR) that protects family life, would tend towards the conclusion that the right should not be so narrowly construed.  The Department submits that in order to give full effect to Article 12, read in conjunction with Article 8 of the ECHR, (the claimant) must also derive a right to reside.”

I have had this issue with IS a few times where they have selected one primary carer at random and they have always been revised. I have never had a UC case as we are in live service at present.

Thanks,

Rob S

Thanks very much, that is extremely useful. Does anyone know where I can find a copy of MA v DSD (JSA) [2011] NICom 205)?

Cheers

Alex

If you follow this link you should find it:

Just type the reference to the text search

http://iaccess.communities-ni.gov.uk/NIDOC/Users/internetsearchpage.aspx

thanks

Rob