permanent RTR through being a family member? 

Hi. A RTR query here;

Client, Polish, and cohabiting with a worker (not married, so maybe extended family member) for over 5 years

If they were married, and the worker was an EU citizen, then I would have no trouble saying she has permanent RTR

So the 2 things holding this back, are; 1. they are not married, they are cohabiting. and 2. the worker, is actually South African with indefinite leave to remain.

As I understand it, family members who are workers can only confer rights if they are EU citizens, and so in this case cannot confer rights to the Polish client because he is South African. ?

Client looking to set up on her own and wants to know what RTR she has?

She has 1 child age 3 and is interested in IS, to accompany CB, CTC and HB

She is not in a full UC area

She has not been a worker while she has been in the UK, and I have mentioned, that if she does work, she will have RTR through a child in education, when the child starts compulsory education.

I have also of course said, if she earns £155 a week, she will have full RTR anyway ...

Thanks

You have identified the two problems.  You just cannot get past him being South African as far as close or extended family rights are concerned.  Not being married doesn’t help either.

There is a long shot possibility here.  It would require her to have had comprehensive sickness insurance throughout her five years’ residence, which I would guess is pretty unlikely.  But if she had, she could say that she had a right to reside for five years as a self-sufficient person through the earnings of her unmarried partner.  There is an ECJ case, Kulbir Singh, where the EEA national’s spouse would not have had a right to work in the first place unless the EEA national had a right to reside of her own, but the court was content that she could rely on his earnings for self-sufficiency.  Two distinguishing features between Kulbir Singh and your case:

- the South African partner in your case clearly does have a right to work irrespective of any EEA family connections as he has ILR.  So that slightly unconvincing circular argument does not have to be relied on
- but they aren’t married, while Singh was, so she was not a family member in the EEA meaning of that term. I’m not sure that detracts from the point that she had access to resources for herself personally, irrespective of where they came from.

That is a very long shot though because of the sickness insurance point.  So I think finding effective and genuine work is essential.

NB: this is not just about whether she gets to add IS to her benefits portfolio, the HB, CTC and ChB are all at stake here.  With no right to reside she cannot get any of those benefits.