Extended family member

I want to run this by someone who knows more about EEA law than me please.

Client is EEA national, probably has permanent right to reside through claiming ESA continuously for 6 years (checking this). Was doing Permitted Work but misadvised by someone at DWP to cancel this and claim UC instead. Partner aged 24 has never worked in the UK or elsewhere but receives Carers Allowance for caring for client. In long-term, durable relationship, 1 child, pre-schoool age.

UC has said partner has no right to reside so claim paid for client only and partner’s CA deducted from award.

1) Client wanting to MR no r2r decision for partner. As far as I can see partner could potentially be an extended family member but this would rely on them obtaining Registration Certificate issued by the UK Home Office. Is this correct?

2) Also, guidance suggests that in order to be an extended family member they must have been dependent upon the Qualified Person prior to arriving in the UK. Is this correct?

3) Client met partner in a 3rd country (Germany) about 3 months before they came to the UK together but they only lived together for about a week before coming to UK (partner was living with other family members before that).  Is this short period of dependence likely to derail point 2) (above)?

4) Any other pointers or things I have missed?

Many thanks

Is the partner an EEA national or a non-EEA national?

Is the child a UK national, EEA national or non-EEA national?

Sorry, you did mention registration certificate which implies partner is EEA national. And child isn’t school age so nationality also irrelevant. (Next time I’ll do the research before asking questions.)

Partner must be treated as an extended family member for relevant purposes if she has a registration certificate. As I understand it, the registration certificate is proof that the holder had a right to reside on the date issued (EEA Regs 17 (8)). The certificate is not a required for someone to have a right to reside (it’s actually the other way round, a right to reside is required for the certificate).

Regulation 8 of EEA Regs states that family member must satisfy either 8 (2) or 8 (3) or 8 (4) or 8 (5). Being a partner in durable relationship is 8 (5). Dependency is 8 (3). Partner does not need to satisfy both. If she can prove to decision-maker that they are in a durable relationship (i.e. 8(5) satisfied), then dependency is irrelevant.

(Definitely not an expert though, just someone with an interest and time on their hands)

Thanks Income Max, much simpler than I thought.

The caselaw on this is that the registration cert is needed for the right to reside of extended family member- SS v SSWP [2011] UKUT 8 (AAC).

Nice one Martin ... here’s [2011] UKUT 8 (AAC):

https://www.rightsnet.org.uk/welfare-rights/caselaw/item/Right-to-reside-of-an-extended-family-member

http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=3149

Huh… looks like I missed a technical point there. Sorry about that.

Thanks Martin and Shawn.

Anyone got any further insight into questions 2, 3 or 4? I’m obviously reluctant to advise my client to spend £65 applying for a Reg Cert if it is going to be pointless anyway.

I have been reading C-83/11 http://www.eearegulations.co.uk/CaseLaw/ByPage/ECLI_EU_C_2012_519 which does not seem at all promising in relation to questions 2 & 3 at the OP, although the facts are somewhat different. Am I missing the point here given what Income Max has said above?

Any help appreciated, I just can’t get my head around this.

Thank you.

EDIT
Have received some clarification. Client was living in UK for 6 years, met partner (also EEA citizen) through internet dating site whilst partner was in Germany (not country of origin). Client flew to Germany , stayed with partner for week then they came together to UK in 2014 where they had baby (EEA national). They have lived together ever since except for brief period (about a month) when they separated and partner returned to country of origin.

If the client can establish themselves as a family member than they have r2r via the partner (who presumably worked in the UK before being on ESA? Anyway it seems DWP accept partner has an r2r, & possibly perm r2r from what you’ve said).

For an extended family member to be treated as a family member they need a registration certificate….

I can’t see another route to a right to reside for them directly, as they’ve never worked here.

I’m just rushing to work & haven’t had time to read the whole of the link you posted but isn’t this partly about dependency & whether that needs to have existed before coming to the UK, which isn’t relevant here as the partner is relying on being a partner in a durable relationship, not dependency?

PS - worth a complaint & request for compensation re the advice to claim UC if overall client has lost out anyway (I mean leaving aside partner issue for now)? If was doing permitted work then quite likely to be worse off working whilst retaining LCW in UC?