Teixeira judgement and permamnent right of residence / temporarily ill but claimed IS as lone parent

Afternoon all

I understand that in order to obtain permanent right of residence a person must exercise their treaty rights for five years - ie be a worker, work seeker, family member of the same etc.

Is time spent as the main carer of a child in school for five years (after two months as a worker) going to get my client permamnent right of residence?

Also, my client left work due to ill health (which is still ongoing after many years but she could recover from) but claimed IS as a lone parent for some time, before claiming ESA when the children went to live with father.

Can she still rely on worker suffering temporary illness as a basis for a right to reside?

Thanks for any help or pointers you can offer.

Dan

Dan Norris - 05 July 2011 03:36 PM

Can she still rely on worker suffering temporary illness as a basis for a right to reside?

Yes she can, they are either temporarily ill or permanently ill, and temporary illness has no time scale. Ifshe satisfies the conditions then it should be fine.

Uganda [2010] UKUT 447 (IAC) (16 November 2010)

http://www.ait.gov.uk/Public/Upload/j2328/00447_ukut_iac_2010_fmb_uganda.doc

Duplicate message posted in error.

“Is time spent as the main carer of a child in school for five years (after two months as a worker) going to get my client permamnent right of residence?”

One of my clients at a previous job won at tribunal level with this argument towards end of year, some time after Lassal decision. Apparently DWP has just been granted permission to appeal.

AndreaM - 06 July 2011 09:23 AM

One of my clients at a previous job won at tribunal level with this argument towards end of year, some time after Lassal decision. Apparently DWP has just been granted permission to appeal.

I’m not surprised they did, bearing in mind this is not immigration advice as I can’t give one, in order to gain permanent residency EU law refers to the person having exercised treaty rights for a period of 5 years, or less, depending on the individual circumstances. A carer for a child that was previously a “worker”, for the purposes of the treaty, that gains a right of residency through Teixeira, in my view, does not have the same standing as a previous “worker” turned primary carer for a child in education.

Unless of course they are ALSO excersing treaty rights at the same time. For example being self-sufficient.

AndreaM - 06 July 2011 09:23 AM

One of my clients at a previous job won at tribunal level with this argument towards end of year, some time after Lassal decision. Apparently DWP has just been granted permission to appeal.

Andrea, would you be kind enough to let us know the details of the case?

I don’t see that someone exercising a R2R under Art 12 of 1612/68 for 5 years would be in a different position to anyone else - remember the Directive 2004/38 refers to “resided legally” whereas the 2006 Immigration Regs refer to residing in accordance with these Regs - and of course the latter does not include Art 12 rights. The Directive would of course take precedence and I cannot see how a RTR under Art 12 would be anything other than legal residence.

This has never been tested though, hence the DWP’s actions.

@chacha
The case is at a job I left a few months ago, I will get the new case worker to provide details, if there are any yet. Afaik DWP have been granted permission to appeal but not actually appealed yet.
It was actually the child in education who won the appeal, not the worker mother, the argument brought forward was more or less as set out by the message from Plumstead