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Right to reside

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Jac
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Claimant is a lone parent from Latvia. Children born in UK. Youngest now age 5 so had to move off Income Support. Full service area so claimed UC. Declined as now a job seeker. She does have right to reside also as primary carer of children, but UC taken narrow view that as a job seeker she does not qualify for UC.

Mandatory reconsideration unsuccessful and have submitted an appeal.

Has anyone had any success in arguing the wider view that there is also derived right to reside as well as as a jobseeker?

davidsmithp1000
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Taken from this thread;

“The tribunal did not consider that the appellant was an exempt person because she might have been able to claim benefit as a jobseeker. A person is an exempt person if he has a right to reside other than a derivative right, not if he might have such a right to reside’.

https://www.rightsnet.org.uk/forums/viewthread/9958/

WillH
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But doesn’t it depend on whether she has a right to reside as the primary carer of a British citizen (specifically excluded, leaving aside arguments about whether that is lawful).. OR

does she have a right to reside as the primary carer of the child of an EEA worker who is in education? From the o/p we don’t know what the nationality of the child’s other parent is, or whether that person had a right to reside in the UK as a worker at some point during the child(ren)‘s lifetime.

Jac
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She has 2 children born in UK and she is their main carer. I am trying to argue that she has right to reside because of this. However when you read UC Regs she is excluded from receiving UC as she is a jobseeker, so not entitled.

WillH
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I think it might be a bit more complicated than that and depend on having more details about her derived right. If her derived right is only as the primary carer of a British citizen then it is correct that this is excluded (UC Regs, reg 9(3)(b)).

But if she has a derived right either through having been a worker in the UK herself, or through the other parent having had EEA worker status, then that isn’t excluded.

It doesn’t matter that she is also a jobseeker; you can have more than one type of r2r. But maybe the other parent was a British citizen & that’s why the derived right doesn’t work for her?

NB UC regs, despite being updated, refer to the 2006 EEA regs not the 2016 ones…There might be an SI somewhere which changes that but it’s not been incorporated in the most recent ‘law relating to social security’ version.

Jac
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Her ex partner is also from Latvia-never married. He has been in full time work. She has only had a few weeks of work since arriving in UK. She has been receiving Income Support Child Tax Credits, HB etc up until now. Youngest child now age 5 so has to sign on. UC full service area so claim made for UC.

I am trying to argue that she does have derived right but UC Regs don’t permit UC to be paid to jobseeker..

Just wondered if anyone has successfully argued that the derived rights and EU law can mean UC can be paid.

Thanks for all contributions so far.

HB Anorak
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OK, so this is a slightly different point from the one linked to at #1 above.  What DWP are saying here is that the claimant’s derivative right to reside is suppressed while she is a jobseeker with reasonable prospects of finding work.  This is, on the face of it, the effect of Regulation 16(7)(c) of the Immigration (EEA) Regs 2016: she is an “exempt person” because she has an alternative right of residence, therefore she cannot have a derivative right to reside while that is the case.  The catch 22 here is that if she doesn’t sign on as a jobseeker she isn’t eligible for UC ... so you can only claim if you cannot claim.

The counter-argument is that Regulation 492/2011 has direct effect in member states and does not require national legislation to transpose it.  Article 10 of that regulation says that the worker’s children have the right to be educated under the same conditions as children of host state nationals.  A British parent in the same situation would not be excluded from UC, neither therefore should a parent who cares for an EEA worker’s child be so excluded.  That is backed up by Teixeira and Ibrahim where the ECJ says that parents in these cases are not excluded from social assistance.  Arguably any national rules that contradict Article 10 and the ECJ’s case law should be ignored, especially in these circumstances where the effect is a quirk of drafting rather than a policy decision: Reg 16 is intended to confer rights, not restrict them.

I currently have a case at the Upper Tribunal that might provide some case law on this, but the claimant first has to get over the hurdle of having a derivative right to reside in the first place.  She had ceased to be a worker before her children arrived in the UK, so the UT first has to decide whether she is able to rely on Article 10 at all - that might need a referral to the ECJ.  But if the answer is yes, then the UT will have to deal with the “exempt person” issue.  Even if she fails at the Article 10 stage, I hope the UT might at least provide some very strong obiter comments on the “exempt person” matter.  The case is CH/2712/2015 (Bolton MBC v HY).

Jac
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This is exactly my problem. I am going to argue the points as mentioned. Ill be interested to hear of any outcome on the UT case.
Thank you.

Sonia
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I was just reading this post, I have a similar case. My client is a EEA national from Portugal who is studying at University. She also is a lone parent she has 2 young children, 1 in primary school. I thought I would be able to rely on derivative right of primary carer of child in education. After searching through;
The Immigration (EEA) Regulations 2016
The Universal Credit Regulations 2013
The UC(EEA Jobseekers Amendment Regulations 2015)
UC Decision Makers Guide
I know realise that because she is classed as a qualified person a Jobseeker [Imm(EEA) Reg 2016 ] regs 6(1) she is an exempt person. In same regs you cannot be an exempt person and rely on derivative right to reside. A Jobseeker is no longer able to claim UC even though I am wondering if this is lawful and not in breach of Article 10.
I also looked at the reason that Jobseekers are unable to get UC and came across The UC(EEA Jobseekers Amendment Regulations 2015 (where they have cleverly amended the UC Regs so that a EEA Jobseeker is now treated as not in great Britain.
My Head has been spinning trying to figure this all out, my client had since found a job and so will advise her to apply again as a worker but in mean time will still try to challenge previous decision. 
My argument will be that she was not a qualified person because she was not a jobseeker because she is a lone parent. She also a student but she is not self sufficient and does not have the required health insurance so cannot be treated as a qualified person as a student either.
Do you think that would work?
Do you think there is a breach of Article 10?

HB Anorak
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Update on my case: oral hearing on 22 February.  The arguments are now moving away from “exempt person” but I hope the decision will at least include some obiter commentary on the point.

The claimant seems to be outside the scope of Reg 15A (or 16 as it is now) because her children do not satisfy para (3)(b): they were not in the UK while she was a worker.  So we probably won’t get as far as the “exempt person” issue.  The appeal has now moved on to the possibility of establishing a right of residence directly under Reg 492/2011 in circumstances that the national legislation does not cater for.

While doing the legal research I have remembered a technical point which might help some people to get around the “exempt person” problem.  The definition of “jobseeker” in Reg 6 of the I(EEA) Regs 2016 does not include people who enter the job market while already resident in the UK as an inactive person with no positive right of residence: to fall within Reg 6(5) you have to come to the UK to seek work, or enter the job market directly from some other legal activity (eg self-employment.  If you don’t meet the strict definition of jobseeker as it appears in Reg 6, you won’t be prevented from having a derivative right of residence under Reg 16.  It is a rather technical defence, but a defence to a ludicrously technical reason for disqualification in the first place so, you know, sauce - goose - gander.

Sonia: was your client ever a worker in the UK before?  If not, Article 10 is a non-starter.

Dan_Manville
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Jac
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HB Anorak - 05 January 2018 10:41 AM

Update on my case: oral hearing on 22 February.  The arguments are now moving away from “exempt person” but I hope the decision will at least include some obiter commentary on the point.

The claimant seems to be outside the scope of Reg 15A (or 16 as it is now) because her children do not satisfy para (3)(b): they were not in the UK while she was a worker.  So we probably won’t get as far as the “exempt person” issue.  The appeal has now moved on to the possibility of establishing a right of residence directly under Reg 492/2011 in circumstances that the national legislation does not cater for.

While doing the legal research I have remembered a technical point which might help some people to get around the “exempt person” problem.  The definition of “jobseeker” in Reg 6 of the I(EEA) Regs 2016 does not include people who enter the job market while already resident in the UK as an inactive person with no positive right of residence: to fall within Reg 6(5) you have to come to the UK to seek work, or enter the job market directly from some other legal activity (eg self-employment.  If you don’t meet the strict definition of jobseeker as it appears in Reg 6, you won’t be prevented from having a derivative right of residence under Reg 16.  It is a rather technical defence, but a defence to a ludicrously technical reason for disqualification in the first place so, you know, sauce - goose - gander.

Sonia: was your client ever a worker in the UK before?  If not, Article 10 is a non-starter.


Thanks for pointing out definition of “jobseeker”. May help in my case.

Glenys
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Resurrecting this as it’s such a crucial issue for Universal Credit claimants I wanted to get it right and to add some more thoughts & questions:

Reiterating the issue:

If someone could have a right to reside through either (i) derivative right to reside or (ii) Jobseeker status, they will only be able to use the Jobseeker status because as a Jobseeker they count as an exempt person and cannot have derivative right to reside (ie Jobseeker status trumps it.)
Under UC, Jobseeker status gives you nil entitlement.
So they might need to argue that they are not, in fact, a Jobseeker.

Thoughts/questions:

1. Someone will not be a Jobseeker if they cannot show* that they have compelling evidence of a genuine prospect of employment -  ie the GPOW test. (* after 91 days’ jobseeking - or from kick off if it’s second or subsequent period of jobseeking not separated by a 12 month absence from UK.)
BUT if they try arguing they don’t pass this test I’m guessing they might also be regarded as failing their work related requirement under the Claimant Commitment so not a good idea? Or do you think they are separate issues?

2. Someone will NOT be a Jobseeker if they neither entered the UK to seek employment (note a) NOR have sought employment immediately (note b) after a period as a worker / self employed person (in either case including retained worker status through temporary incapacity)  self employed person, self sufficient person, or student.
Note a - any idea how long someone would have to be in the UK not seeking work before it was determined that they didn’t enter the UK in order to seek work?
Note b - any idea how long “immediately” is these days? I seem to recall reading about caselaw that allowed a fortnight?

3. Do you think that GPOW being “KPOWed” (by caselaw) actually makes it harder for claimants to show they’re not a jobseeker? (Because the time they can spend showing compelling evidence of a genuine prospect of work is longer than it used to be?)

4. What do you think of CPAG Benefits for Migrants handbook comment on page 141 :
“...if you were receiving UC on the basis of having a derivative right to reside, being able to show that you also had a right to reside as a jobseeker will enable this period to count towards the continuous 5 years required for permanent residence…..)”
But surely arguing that one was a Jobseeker could lead to DWP saying “thanks for telling us you were a Jobseeker -which meant you didn’t qualify under derivative rights rules - so you have been overpaid for all the time you were telling us you had derivative rights” ???

Jac
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I have the appeal hearing in March for the case described in my initial post. Particular impacts on come groups of clients such as lone parents, people finishing education.

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Did your case go ahead in March and what was the outcome as have a couple of similar UC decisions!

Jac
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Appeal went ahead. Just got the decision through as Judge wanted time to consider it. Successful appeal due to derived rights via children in education.