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family member of an EEA national
HI
I have been asked about right to reside for housing allocation and just wanted to double check my thinking:
Mr is originally from Nigeria but has a spanish passport as do his children. He worked until late July 2018. Mrs is Nigerian with an EEA family member card. She arrived with the children at the beginning of July 2018. He isnt working now but looks after children as Mrs is a live in carer for part of the week.
Im thinking that he has a derivative right as children were present whilst he was a worker (just!) and children are in education, but im not sure about Mrs. I know that an EEA family member can have right to reside if the person that they are family member of is a qualified person, but don’t think this applies to a derivate right. Would Mrs still have right to reside in her own right as the primary carer of an EEA national? can they both be carers? not really come across this situation before. thank you for any guidance.
edited to correct dates.
[ Edited: 1 Feb 2021 at 09:44 am by dizzymare ]The concepts of a qualified person and a family member are not strictly applicable when you are discussing the derivative right.
Where the child has a parent who was or is an EEA worker and there is a common period of the child residing in the UK and the parent having been in work, that child has an Article 10 right to pursue an education in the UK. The primary carer of that child then has a derivative right (whether that is the worker parent or someone else). Two people can fall into the role of primary carer where responsibility for the child is shared equally - see e.g. reg 16(8)(b)(ii) Immigration (EEA) Regulations 2016.
If there was a common period where the father was working and the children were living in the UK, and the children (or at least one of the children) is in education, then on the face of it the two parents ought to be able to put themselves forward as sharing the role of primary carer and enjoying derivative rights.
For the sake of completeness, if one of the couple were considered not to be eligible, it would still be possible for a tenancy to be granted to the eligible applicant solely.
Hi yes of course, was looking at regulation 16 to decide that Dad did have right to reside but read any of child’s parents to mean ‘either’ rather than both. Reg 16 (8) makes it perfectly clear and I hadnt noticed that so thank you. Yes the tenancy will still be granted but they were just looking at whether to make this joint tenancy. Thank you Elliot
[ Edited: 29 Jan 2021 at 09:41 am by dizzymare ]Sorry, perhaps I’m being unclear. It is only necessary for the child to have one EEA worker parent for the right to pursue an education to be established.
Once that right is established, the primary carer(s) of that child have a derivative right to reside even if they themselves have never been EEA workers.
It is impossible in this case for the mother to have been an EEA worker because she is not an EEA national - however that isn’t relevant to the question of whether she can have a derivative right to reside.
In this case, on the face of it, the child has a right to reside to pursue his education in the UK - see reg 16(3) - because his father was an EEA worker at a time when he was also residing in the UK.
The effect of that is then that his “joint primary carers” per reg 16(4) and (8) have a right to reside. This covers both of his parents on the basis that they share his care equally.
(Edit: I think you may have edited your post while I was writing that so my response might not make sense..)
Elliott, thank you for the clarification, and for taking the time to answer my question. Much appreciated .
Once that right is established, the primary carer(s) of that child have a derivative right to reside even if they themselves have never been EEA workers.
I don’t suppose you’ve any authority for that Elliot? It is how I perceived things to be but a Tribunal Judge told me exactly the opposite a couple of weeks ago, apparently on reference to the commentary in Sweet & Maxwell.
I’m glad this has popped up as I’ve been researching this very issue this morning.
One way to do it is just first principles- read the regulations.
Reg 16(3) is satisfied by a child if (a) they have an EEA national parent (b) that parent was in work at a time when the child was also resident in the UK and (c) the child is in education. If all of those criteria are satisfied, the child has a right to reside under reg 16(3) (or strictly the EU law right to enjoy an education under the best possible conditions as per Art 10, Regulation 492/2011).
Once we have established that the child has that right, their primary carer has a right to reside which is derived from the child’s as per Teixiera and Ibrahim. This is set out in reg 16(4). The person claiming the right must be (a) primary carer for the child and (b) their absence from the UK would prevent the child from continuing in their education.
There are five questions set out in the regulation to ask and answer and not one of them is “has the claimant ever worked in the UK?”.
But if you want case law, just look at the facts of Ibrahim itself. Ms Ibrahim was a non-EEA national who had never worked in the UK but established a derivative right on the basis that her former husband who was the father of her children had previously been an EEA worker. Therefore Ms Ibrahim was able to rely on the derivative right as her presence as primary carer was needed in order to enable his children to enjoy their education.
If the Judge has held that the claimant themselves need to have worked in order to be capable of using derivative rights, they have gone extremely wide of the mark.
If the Judge has held that the claimant themselves need to have worked in order to be capable of using derivative rights, they have gone extremely wide of the mark.
Not that the claimant needs to have worked, but that the claimant/Primary Carer needs to be an EEA national.
I thought it was wonky… Thanks for the Ibrahim tip; that will clinch it I suspect.
Yeah its wrong all the same. Claimant can be non-EEA as was Ms Ibrahim.
HI
I have been asked about right to reside for housing allocation and just wanted to double check my thinking:
Mr is originally from Nigeria but has a spanish passport as do his children. He worked until early July 2018. Mrs is Nigerian with an EEA family member card. She arrived with the children at the end of July 2018. He isnt working now but looks after children as Mrs is a live in carer for part of the week.Im thinking that he has a derivative right as children were present whilst he was a worker (just!) and children are in education, but im not sure about Mrs. I know that an EEA family member can have right to reside if the person that they are family member of is a qualified person, but don’t think this applies to a derivate right. Would Mrs still have right to reside in her own right as the primary carer of an EEA national? can they both be carers? not really come across this situation before. thank you for any guidance.
Dizzymare,
You say he stopped work in early July 2018 and the children did not arrived until the end of July 2018. There isn’t a common period when he was a worker and the children were present! Is it a typo and the children arrived in the UK in early July 2018 and Mr stopped work at the end of that month?
Jim
[ Edited: 29 Jan 2021 at 09:26 pm by Mr Jim ]HI
Dizzymare,
You say he stopped work in early July 2018 and the children did not arrived until the end of July 2018. There isn’t a common period when he was a worker and the children were present! Is it a typo and the children arrived in the UK in early July 2018 and Mr stopped work at the end of that month?
Jim
HI Jim, yes sorry it is a typo (not a good day for me - that’s what comes of trying to do too many things at once) yes, there was definitely a common period - they came beginning of July and Mr stopped work at the end of July. sorry for any confusion (need to start this again I think!)
I thought I’d update this as we had an outcome this week. The new Judge had no qualms accepting that the third country national could enjoy Teixeira rights.
Job done; thanks all.
I thought I’d update this as we had an outcome this week. The new Judge had no qualms accepting that the third country national could enjoy Teixeira rights.
Job done; thanks all.
Hurrah - good work Dan.