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ESA R2R

 

Andrew Hansard
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Advice Team, CVTRA (Castle Vale, Birmingham)

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      [ Edited: 22 Mar 2017 at 07:46 am by Andrew Hansard ]
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Welfare Rights Adviser Southwark Law Centre Peckham

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Andrew Hansard - 17 March 2017 10:02 AM

Question 1: does she have R2R under reg 15A para 5 Immigration(EEA) Regs 2006 without the client having to have ever worked:

(5) P satisfies the criteria in this paragraph if— (a) P is under the age of 18; (b) P’s primary carer is entitled to a derivative right to reside in the United Kingdom by virtue of paragraph (2) or (4); (c) P does not have leave to enter, or remain in, the United Kingdom; and (d) requiring P to leave the United Kingdom would prevent P’s primary carer from residing in the United Kingdom.

As I read it, this provision caters for the situation where a person has a derivative right to reside for a young person under the age of 18 who is either self-sufficient or in education. However, at the same time, they are also the primary carer of a young person under the age of 18 who has no right to be in the UK whatsoever - i.e. they are a person from abroad/have no leave to remain. If that young person were forced to leave the UK, their primary carer would be forced to follow - meaning that the other young people they care for (and who are exercising rights either as self-sufficient or pursuing education) would be forced to follow too.

The young person in your scenario is British - so cannot be forced to leave the UK. So this route doesn’t work.

Other wise can she get R2R is she can prove dependency on the mother as a child for 5 years - but this is not easily done in this case; what proof is a tribunal going to rely on to make such a decision? For example the clients mother was making payments to other adults for her care, is that sufficient?

Dependency (as in dependent family member) is automatic up to the point that the person is 21 - it doesn’t require that financial support is demonstrated. More problematic will be the fact the dependency (before or after age 21) must be on someone who themselves has/had a right to reside - so you would need to show that your client was dependent during a continuous 5 year period when her mother had a right to reside.

Bear in mind that it will not be necessary for your client to provide evidence of her mother’s employment (names and addresses of employers, P45s, P60s etc) though of course it does no harm if she has them - if the mother can give a clear account of having worked and can provide her NINo, you arge the Kerr principles to get the DWP to check its own records for NI contributions (which is the evidence of employment) and JSA awards (retaining worker status) during the relevant period.