permanent right to reside

morning - taxing question to start my day

EEA national, living here since the age of 12 with her Mother. Now aged 24.  Client has lived separately from her Mother for around 3 years and has her own tenancy, and 3 children under school age..  She worked for a short period (maybe a year) but this was several years ago. She isnt married and doesnt live with a partner (Father of children is also I believe, an EEA national); client currently getting HB, CB, and CTC but no income for herself. She is looking to move house.  I was asked to check RtoR for social housing and triggers for UC.  My concern is that though there is no trigger to UC, she is missing out on income for herself. I have asked her to seek support/advice with the settlement scheme but she seems a bit reluctant. I have advised on missing income for herself (but she doesnt want to claim UC and I would be wary of pushing this unless I was certain of her rights). HB is currently paid on permanent right, but having looked into this further, I am not certain if this is correct, hence my query to all the experts out there:

Clients Mother did a bit of work, but has not got 5 years for permanent right to reside. Her rights are derivative as she has children in education. However, my understanding is that this does not count towards the 5 years necessary for permanent RtoR.  My client is not dependent on her Mother (nor anyone else). She has more than 5 years as a dependent as she was 12 when she came here, and during this time, her Mother had a derivative right; but my question is can my client acquire permanent right as 5 years as an EEA family member? im thinking not as if her Mother cant get this, how can my client? in this case, am I correct in thinking that this lady does not have a right to reside at all? her children are all under school age.

thank you as always for your help

If your client was the schoolchild (or one of them) through whom her mother had a derivative right to reside, then your client had such a right herself - in fact, hers was more immediate as she was the child with the right to go to school.  But if she is no longer in education then unfortunately as you say she doesn’t bank any credit towards five years for permanent residence while exercising a derivative right to reside so leaving education means no further reliance on derivative rights.

There is another possibility though - albeit a remote one.  You haven’t mentioned her father.  Is it possible that he was in the UK while she was a child at school and that he had a right to reside (not a derivative one - a pukka right to reside) up to the day when he either died or left the UK?  If so your client would have retained her right to reside as a family member under the obscure and little known Article 12 of Directive 2004/38/EC: this is a “proper” right to reside, not a derivative one and it counts towards five years for a permanent right of residence.  It applies where the EEA national dies or leaves the UK and at that time his/her family members who are also EEA nationals remain in the UK as either a child at school or the person with care of a child at school.

Excluding that unlikely possibility, it would seem (and I say this is a disinterested observer passing comment and not someone offering advice, because they send you to the Tower if you offer advice without a licence) that her best bet would be to apply for settled status.  Someone who is licensed could maybe advise her that it’s free, it doesn’t matter what her economic situation is or has been and all she needs is evidence of having lived here for any five year period, but who am I to say that.

Thank you HB Anorak. I will explore the circumstances of her Father just in case. As you say, settled status would of course be the best course of action and as I am not able to give advice on that, I have directed her to the refugee and migrant centre for assistance - for some reason, she doesn’t want to do this but may be it is mistrust but I will try to encourage her again.

I think there are certainly some avenues that need exploring e.g. (not necessarily to answer here, more just worth thinking about)

What work did mum do and when?
What was she doing between gaps / why did she stop working?
Did mum ever have any family members who she could borrow status from (e.g. re-marriage)?
What happened to dad?

Also possibility that if the children’s father has a right to reside and the client is the primary carer, it is arguable that this is sufficient to found derivative rights (of a different category to the Teixiera/Ibrahim child in education sort). So there might be questions re the father’s status too.

But yes, settled status is potentially an answer to it all. I would add that I have been having a huge amount of difficulty corralling my EEA clients to appropriate sources of support and share the frustration re the slightly ridiculous position where I am able to - say - represent clients on points of EU law at the Upper Tribunal, but I am not trusted to tell them that if they have been living in the UK for 5 years, then they are probably a shoo-in for settled status.

thanks Elliot. Im pretty sure there is nothing to help via Mom (she did a little work self employed cleaning about 12 years ago and nothing since; no remarriage) Dad has never been on the scene so im not even sure he is/has been in UK but I will certainly explore this matter. Thank you again for information;  hopefully, will be resolved if she seeks support..