Forum Home → Discussion → Residence issues → Thread
Whether child “would be unable to continue to be educated in the United Kingdom if the person left the United Kingdom for an indefinite period”
Reg 16 (4) (b) of Immigration(EEA) Regs 2016.
Is there are any caselaw around this?
Mother, EEA national, failed HRT for UC and we are trying to reinstate her legacy HB.
LA is exploring the issue, not without some sympathy I must say.
However, they would like to be convinced that the child would be unable to continue to be educated in the United Kingdom if the person left the United Kingdom for an indefinite period.
How can we persuade the LA (who argue that child may potentially live with father (EEA worker) or other family members) that separating a 4 yo child from his mother is unacceptable or unlawful or contrary to Human Rights?
Mother has a restraining order against father but father did not show any violence/inappropriate behaviour towards the child.
S21 Notice has been issued and mother became quite unwell with stress and anxiety.
I am looking for legislation and caselaw, as I already have a statement from client.
Separate work is of course going on with challenging UC decision.
LA is quite able to deal about potential overpayment- if UC appeal successful.
,
How can we persuade the LA (who argue that child may potentially live with father (EEA worker) or other family members) that separating a 4 yo child from his mother is unacceptable or unlawful or contrary to Human Rights?
it isn’t necessarily the case that separating a 4 year old from his mother is a breach of human rights or anything else - it happens a lot, as you will know, in family (both public and private law cases); never mind situations where the relevant parent dies.
LA, if they want to take that route, should investigate whether in fact father can care for child, what support he has to do so (working hours all those things); they’ll also need to think about contact and such where hear or in country of origin, and given mother has order, supervised contact, and so on and so forth - all the things theyd normally be looking at
BUT, more fruitful, surely, to be looking at the reasons UC said she failed HRT, given her circs and father’s circs - UC are often wrong, as we know
and you cite immigration regs - is this an immigration decision - don’t see how it can be - or a UC decision?
S21 Notice has been issued and mother became quite unwell with stress and anxiety.
I assume you’re also looking for some urgent advice about this aspect of the case?
We cover section 21 evictions, or ‘no fault’ evictions at section 6.3 of our factsheet Preventing evictions
Depending on whether the section 21 notice has been properly prepared or not, your client might also be able to approach the local authority for advice and assistance as someone threatened with homelessness.
I have never known much attention to be given to this requirement. It is normally taken for granted that if the person who has, in actuality, sole care of the child were to leave the UK, they would take the child with them. It is not really a good look for the local authority’s housing benefit department to be dictating who a child can or should be living with - particularly if the father is a possible risk.
The ECJ cases O & B C-456/12 and Chavez-Vilchez C-133/15 are largely on point as they relate to the circumstances in which Zambrano style rights can be denied on the grounds of a non-resident parent in the jurisdiction. I think there is a fairly clear analogy.
I’d suggest reading those cases - particularly Chavez-Vilchez at 70-72 and 77-78 which refers to the relevant considerations, including the human rights and best interests of the child. It is also relevant but not decisive whether the non-resident parent would actually, in reality, be willing to take over sole care of the child.
http://curia.europa.eu/juris/document/document.jsf?text=&docid=149082&pageIndex=0&doclang=EN&mode=lst&dir;=&occ=first&part=1&cid=5941752
http://curia.europa.eu/juris/document/document.jsf?text=&docid=190502&pageIndex=0&doclang=EN&mode=lst&dir;=&occ=first&part=1&cid=347090
and you cite immigration regs - is this an immigration decision - don’t see how it can be - or a UC decision?
Hi Claire, It is a UC decision- and yes, we are at an appeal stage (grounds: primary carer of an EEA worker’s child in relevant education)
So I am doing both; trying to reinstate HB and appealing HRT failure.
Where do LA’s duties to investigate the issues you have mentioned (father’s ability to look after the child etc) arise from?
BUT, more fruitful, surely, to be looking at the reasons UC said she failed HRT, given her circs and father’s circs - UC are often wrong, as we know
and you cite immigration regs - is this an immigration decision - don’t see how it can be - or a UC decision?
The DWP have refused UC on the basis that the claimant fails the HRT. The Immigration (EEA) Regulations are, as far as domestic law goes, the arbiter of whether she does or doesn’t have a right to reside which is why they are relevant.
Jo has, quite shrewdly, realised that in this situation rather than sitting around and waiting for months for a UC decision, she can more quickly persuade the local authority that it was inappropriate to terminate the HB using Peter’s argument relating to the reg 8 of the transitional provisions. However the LA are clearly not going to award HB to somebody who has no right to it, so she needs to also persuade them that the client has a right to reside - which again is based on the EEA Regs.
Paul; thanks for the resource. My client is on a HA starter tenancy and has 4 months worth of rent arrears. Notice has been checked and is composed correctly :(
Yes, Elliot, I am arguing to DWP that UC was wrong to fail her on HRT, then arguing to LA that she has HRT but, according to DWP, has not satisfied Reg 8 (1) (b). It messes with my head.
My LA is asking what is involved in sending Stop Notices to terminate HB. I “know” the process is automated andI have a vague memory this was discussed here but can’t find relevant post. All i can find is this: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/726072/g7-2018.pdf (HB Bulletin HB G7/2018) where it says that all they look at is claimant identity (bullet point 5).
I can’t find however a definitive confirmation that no further checks at this point are involved to examine “that the claimant meets the basic conditions specified in section 4(1)(a) to (d) of the Act”
Yes you are sort of arguing to the DWP that your client does meet the basic conditions of entitlement and therefore, implicitly, they can’t be criticised for issuing the stop notice, but then you are arguing to the local authority that the stop notice was incorrectly issued because the DWP did not satisfy themselves that the basic conditions were satisfied BUT you are also having to argue that the basic conditions were, in fact, satisfied and the stop notice is only invalid because the DWP incorrectly found that they weren’t.
My advice is to not think about it too much…
Paul; thanks for the resource. My client is on a HA starter tenancy and has 4 months worth of rent arrears. Notice has been checked and is composed correctly :(
In that case, she is definitely someone who is threatened with homeless - however, it’s just struck me that the second test for assistance from the local authority is that she is “eligible for asssistance” which in her case also means having a right to reside again basically.
You’d hope the two arms of the authority might put their collective heads together and make a decision that she does have r2r of a child in education and reinstate HB to clea r the arrears, which in turn could overturn the s.21 notice and enable her to remain in the current accommodation.
Given that the test is a two-part test, which states you have a derivative right to reside under the EEA regulations if you:
* are the “primary carer” of a child of a worker who is in education, and
* the child would be unable to continue to lbe educated in the UK if you were required to leave
is there an argument that the partner with the restraining order cannot, in simple fact, be treated as the primary carer and so that’s a dead-end from the off? Your client does satisfy the primary carer strand, in fact, and therefore the second arm of the test is satisfied by extension.