CB and Right to Reside

Client is an EEA citizen who came to UK in 2019 and did agency work for two to three months before falling seriously ill. He is still undergoing treatment.

Client successfully obtained SSP and claimed UC. SSP has run out, but he is still getting UC, including the LCWWRA element. He has also successfully claimed PIP, using EU co-ordination rules to avoid the past presence test.

Client has now been joined by his wife and child and has successfully incorporated them into his UC claim.

However his claim for CB for his child has been refused, and the refusal confirmed after MR. No justification beyond “you are not a qualified person and do not have a right to reside in the UK,” although there was a statement in the original decision that “he failed to provide sufficient evidence that his employment is [was?] genuine and effective.”

To me it’s pretty clear that he does have a right to reside, with the only potential weakness in his case being if he couldn’t show that his inability to work was temporary.

Does anyone have any other thoughts? Also, is this a case where there is little downside in having it determined on the papers rather than by a hearing?

Sounds like they’ve fallen foul of the imaginary “Minimum Earnings Threshold”.

I still think I’d ask for a hearing so that, if need be, the tribunal can be walked through it and it can be emphasised that the MET is non-binding and woefully misleading guidance which should be ignored.

As I understand it he was working full time for £10 per hour. Obviously he only worked for a couple of months before falling ill, but it’s hard to see why that should be held against him.

Yes but that will still put him below tier 1 MET (24 hrs per week for 3 months).
https://www.gov.uk/government/news/minimum-earnings-threshold-for-eea-migrants-introduced

You and I both know that this is irrelevant and does not reflect the actual legal test for “genuine and effective” work, but many CB decision makers won’t go any further than that.

Thanks - point taken