Permanent right to reside query

Hi, hoping for some help with this - I know it came up before but ages ago and cannot remember the outcome?

(I have only very sketchy details so far)

My client has claimed and been refused UC on R2R grounds.

She is a Czech citizen, born 1997, came to the UK in 2009/10 and attended school until 2015.  Since then has just lived on PIP (I think).
Does this give her a permanent right of residence assuming a five year period at school?
I’m struggling to find out if the parents were working but hoping I don’t need this info - she was removed from the family home due to financial abuse so they are unlikely to be providing information anytime soon.
Any thoughts?

You will need some history for the parents - as a child under 21 she had a right to reside if either of her parents did: she does not, for example, need to have lived with them or been dependent on them. But unless the parents had a right to reside for the required five years at some point, she won’t have a permanent right of residence through them.

Usual caveat about licensed advice but it seems quite likely that she would qualify for ILR settled status and perhaps she might be supported to explore that option if you have or can access someone with the appropriate credentials. Wink.

all good except the Czech republic no longer exists and isn’t in the EU or EEA you may need to check there passport.

My Bad must be suffering cabin fever.

I’d agree with the advice given previously, that you need to look at the parents’ history in the UK, and that in terms of ongoing entitlement settled status is very probably a promising course of action from a benefits perspective.

Given that the claimant is estranged from the parents, by the sounds of it, the ball is in the DWP’s court to obtain the parents’ history of employment, benefit claims etc. I’d ask the DWP to provide NI records, tax records, benefit records (tax credits and DWP-administered benefits) for the parents. They’ll almost certainly be reluctant to do this on data protection grounds. So cite the case of Kerr (here: https://publications.parliament.uk/pa/ld200304/ldjudgmt/jd040506/kerr-1.htm), which confirmed that the DWP should take steps to obtain information where the claimant cannot furnish it themselves. Also cite the relevant bit of the data protection act 2018 which says that info can be disclosed in relation to ‘legal proceedings’ which this will be, at least if the case gets to the Tribunal stage. See below for details.

It’s also a bit of a thorny issue in that you don’t have consent to go bandying about the client’s parents’ details (NI nos etc), so I’d ask your client to provide those details to the DWP herself to avoid this issue.

Paragraph 3 of schedule 11 of the DPA 2018:

3. Information required to be disclosed by law etc. or in connection with legal proceedings

(1)The listed provisions do not apply to personal data consisting of information that the controller is obliged by an enactment to make available to the public, to the extent that the application of the listed provisions would prevent the controller from complying with that obligation.

(2)The listed provisions do not apply to personal data where disclosure of the data is required by an enactment, a rule of law or the order of a court, to the extent that the application of the listed provisions would prevent the controller from making the disclosure.

(3)The listed provisions do not apply to personal data where disclosure of the data—
(a)is necessary for the purpose of, or in connection with, legal proceedings (including prospective legal proceedings),
(b)is necessary for the purpose of obtaining legal advice, or
(c)is otherwise necessary for the purposes of establishing, exercising or defending legal rights,

to the extent that the application of the listed provisions would prevent the controller from making the disclosure.

Thanks all, that’s what I thought but was hoping to avoid getting the parents info.
As for settled status - wink - clearly can’t advise this - no siree - not me- not never - however there was no need to not suggest it as there have been some sort of court proceedings to remover her from her parents (not clear what this was ) and the Court suggested settled status be applied for.

I need access to the client’s parents’ NI records.

Is anyone aware of any civil or UTT cases post-Kerr on access to their party records?

Thanks

Not really. The position shouldn’t be controversial.

DWP has access to some material that claimants don’t have access to. Claimants have access to some material DWP don’t have access to. The NI information of a third party is something which the claimant usually has no way of accessing but which DWP can access as they have a view across into HMRC records (see SSWP v LM (ESA) [2017] UKUT 485 (AAC)). Each party must co-operate with the decision making process and apply information within their knowledge to it. If a party fails to pull their weight and use information within their knowledge in pursuit of reaching the right decision, then the defaulting party has to bear the consequences of the resulting collective ignorance.