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Right to reside based on EU family member who has left UK

 

CHC
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Struggling to establish a right to reside for a non EU national married to a French national who has now left the UK.

My client was self employed but has not been making an money so is considering claiming JSA.  She informed me she is claiming HB and child benefit as self employed (no CTC as large overpayment recovery).

Client is a Jamaican national who arrived in the UK in 2001, before her marriage she had a visa proving limited leave to remain, which she renewed. She married a French national in 2006, her visa expired at some point during her marriage and so her only status in the country was as a family member of an EU national. Her and her husband were both self employed and have never worked for an employer.  They separated and its believed that the husband left the country in 2011 (they remain separated rather than divorced). While together they had a child who is now 7 years old and who has French nationality, the child remains in the UK with my client.

As the husband was self employed I had considered whether my client had gained a permanent right to reside through being a family member of an EU national who legally resided here for 5 years however there are two potential issues here:

- the husband may have left the UK before they were married for 5 years so she may not have established permanent residence before he left -  we are getting clarification on dates.
- even if the husband did not leave before 5 years of marriage, my client was in prison after receiving a sentence for several months in 2007. I know that if the husband had been in prison that would have broken the continuality of residence, I wasn’t sure how being the family member in prison would affect her trying to gain PRR but thought it might have a similar affect.

Wondered about a derivative right to reside as she is the primary carer of an EU child in education however as she is not an EU national and was self employed rather then a worker I wasn’t sure that a derivative right to reside would give her an entitlement to benefits?

I would be grateful for people thoughts on this.

 

     
chacha
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CHC - 08 August 2017 12:26 PM

- the husband may have left the UK before they were married for 5 years so she may not have established permanent residence before he left -  we are getting clarification on dates.
- even if the husband did not leave before 5 years of marriage, my client was in prison after receiving a sentence for several months in 2007. I know that if the husband had been in prison that would have broken the continuality of residence, I wasn’t sure how being the family member in prison would affect her trying to gain PRR but thought it might have a similar affect.

Well, without knowing exactly how long your client was in prison (Just to see if the period was not long enough to make a difference), it affects a family member the same way it affects an EEA. And the period prior to imprisonment can’t be aggregated with the period after release. (Onuekwere (C-378/12), MG (C-400/12))

Has she not been self-employed, for more than 5 years, since she was released?

     
CHC
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Hi

Yes it looks like she was self employed for more than 5 years after she left prison however if her EU husband who she gained her status from left the UK prior to having acquired the 5 years I thought she would have lost her right to reside at the point he left in 2011 which would only be 4 years.

I had a look at CPAG and is suggests its arguable that as EU family member retain your right to reside under directive 2004/38 if the EU national leaves and you have custody of a child in education however this didn’t sound very definite.

     
HB Anorak
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CHC - 08 August 2017 05:39 PM

I had a look at CPAG and is suggests its arguable that as EU family member retain your right to reside under directive 2004/38 if the EU national leaves and you have custody of a child in education however this didn’t sound very definite.

Won’t help in this case as the child was aged 1 at the point when the EEA national left the UK.  In a case where the “stranded” family member is a non-EEA national, having (or being) a child in education is the only way to retain your right to reside following the departure from the host state of the principal EEA national.

 

     
CHC
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Opps! of course, my only excuse is I posted that right at the end of a very busy day!

     
chacha
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CHC - 08 August 2017 05:39 PM

Yes it looks like she was self employed for more than 5 years after she left prison however if her EU husband who she gained her status from left the UK prior to having acquired the 5 years I thought she would have lost her right to reside at the point he left in 2011 which would only be 4 years.

Well, if it’s less than 5 years, that’s probably the end of that. Pretty tenuous, but why did he leave, was there any reason to think he may return? Any chance it was such a period it could be treated as a temporary absence to fill the gap? Depending on how long that is, clutching at straws, like I said.