Forum Home → Discussion → Residence issues → Thread
Genuine and effective work & Derivative right to reside
Hi wonder if someone can help – as I appear to be going round in circles!
Cl is an Estonian national, has lived in the UK since 02/2009 – has worked in the UK for approx. 4 years, Claimed JSA for 6 months before being transferred over to IS for 5 years as a single parent. Cl has two children who are British Citizens (aged 5-6) in general education.
Cl came off IS and made a claim for UC, October 2017. She also became self-employed from this date. A decision has been made that she does not satisfy the right to reside element of the habitual residency test, is not in GB and therefore does not satisfy the basic conditions for UC.
I am looking at challenging, that firstly she is in genuine and effective work – although she did not earn the NI limit in the first two months she is now. The decision states that she can become a ‘Job Seeker’ for 91 days…Can it be argued that she has increased her hours of work therefor no longer needs to be a job seeker and is classed as in genuine and effective work?
Additionally – I am looking at ‘Derivative right to reside’
(3) The criteria in this paragraph are that—
(a)any of the person’s parents (“PP”) is an EEA national who resides or has resided in the United Kingdom;
(b)both the person and PP reside or have resided in the United Kingdom at the same time, and during such a period of residence, PP has been a worker in the United Kingdom; and
(c) the person is in education in the United Kingdom.
The bit that confuses me is (b) PP has been a worker – does this mean that the Cl simply has worked in the UK or is there a certain period of time that the person must have worked?
Any help would be greatly appreciated :)
The work does not have to be of any particular length only that genuine etc. 4 years is no problem
The children have a Right To Reside to exercise their rights under the provisions of EU regulation 1612 of 1968 now 492 of 2011. The mother has a derivative RTR to enable the children to exercise that RTR. That was decided in the cases of Teixeira and Ibrahim.
This derivative RTR carries with it full benefit and housing rights which the Zambrano RTR doesn’t. The time spent solely under the Teixeira RTR does not count towards the 5 years for permanent RTR.
Although Estonia was an A8 country requiring worker registration during the transitional period of 5 years from 1/5/04 the subsequent extension of that period by the UK by 2 years has been quashed as ultra vires.
There have been decisions in the UK confirming that the children do not have to be in education at the time of the employment. The children’s RTR (and thus the mother’s RTR) only requires the children’s presence at time of working not that in education and that now in education.
Article 12 (now art 10 492 of 2011)
The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory.
Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.
see also DJ v Secretary of State for Work and Pensions [2013] UKUT 113 (AAC) (26 February 2013) for a8 nationals covered during workers regn period as first month not need regn
73. However, this is only the end of the matter if the new regulation affords at least the same scope of protection as Article 12, Regulation 1612/68. In our judgment it clearly does not. In Teixeira the Court of Justice made plain that it is not necessary for the child to be in education in the UK at a time when the EEA national parent is continuing to meet the condition that he is exercising Treaty rights in the host Member State. Having at paragraphs 50 and 73 reiterated previous jurisprudence that Article 12 applied as much to the primary carer of the child of a former migrant worker as to the child of a current migrant worker, at para 75 the Court stated that:
“Consequently, the answer to Question 2(c) is that the right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, is not conditional on one of the child’s parents having worked as a migrant worker in that Member State on the date on which the child started in education”.
extract from Ahmed (Amos; Zambrano; reg 15A(3) (c) 2006 EEA Regs) Pakistan (Rev 1) [2013] UKUT 89 (IAC) (28 February 2013) para 73
No, there is no required period. The sole question is, has the parent been economically active in the host member state for any period where the work can be considered genuine and effective (including whether or not the question of the length of the period has itself formed part of the determination as to whether that work has been genuine and effective)?
Once that question has been answered in the affirmative then you only have to establish similar facts as outlined in Teixeira in the ECJ, and the claimant has a right to reside which is not dependent on either the EU Directive or the Immigration regulations but on the anti-discrimination provisions of article 10 of EU Regulation 492/2011.
These are British children though, according to OP. I think that rules out a derivative R2R.
It is unfortunate that the client’s period of economic activity came before she had notched up five years’ legal residence. It might be possible to argue that the first six months on Income Support she was still seriously trying to find another job and therefore retained her worker status up to the magic five year point; or that she was on a St Prix maternity break, remaining at that early stage undecided about whether or when to return to the labour market - but that would run into anti-test case rule problems because St Prix hadn’t been decided at the time. Those both seem like tough arguments here.
So the best and most straightforward option is that she is right now in effective and genuine self employment, irrespective of her history. DWP’s decision sounds like confused rubbish, why are they prattling on about 91 days as a jobseeker? Jobseekers cannot get UC anyway. They are probably thinking that the potential to be a jobseeker for 91 days suppresses the claimant’s derivative right to reside (almost certainly wrong) ... but she doesn’t have a derivative right to reside as an EEA parent with British children.
The work does not have to be of any particular length only that genuine etc. 4 years is no problem
The children have a Right To Reside to exercise their rights under the provisions of EU regulation 1612 of 1968 now 492 of 2011. The mother has a derivative RTR to enable the children to exercise that RTR. That was decided in the cases of Teixeira and Ibrahim.
This derivative RTR carries with it full benefit and housing rights which the Zambrano RTR doesn’t. The time spent solely under the Teixeira RTR does not count towards the 5 years for permanent RTR.
Although Estonia was an A8 country requiring worker registration during the transitional period of 5 years from 1/5/04 the subsequent extension of that period by the UK by 2 years has been quashed as ultra vires.
There have been decisions in the UK confirming that the children do not have to be in education at the time of the employment. The children’s RTR (and thus the mother’s RTR) only requires the children’s presence at time of working not that in education and that now in education.Article 12 (now art 10 492 of 2011)
The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory.
Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.see also DJ v Secretary of State for Work and Pensions [2013] UKUT 113 (AAC) (26 February 2013) for a8 nationals covered during workers regn period as first month not need regn
73. However, this is only the end of the matter if the new regulation affords at least the same scope of protection as Article 12, Regulation 1612/68. In our judgment it clearly does not. In Teixeira the Court of Justice made plain that it is not necessary for the child to be in education in the UK at a time when the EEA national parent is continuing to meet the condition that he is exercising Treaty rights in the host Member State. Having at paragraphs 50 and 73 reiterated previous jurisprudence that Article 12 applied as much to the primary carer of the child of a former migrant worker as to the child of a current migrant worker, at para 75 the Court stated that:
“Consequently, the answer to Question 2(c) is that the right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, is not conditional on one of the child’s parents having worked as a migrant worker in that Member State on the date on which the child started in education”.
extract from Ahmed (Amos; Zambrano; reg 15A(3) (c) 2006 EEA Regs) Pakistan (Rev 1) [2013] UKUT 89 (IAC) (28 February 2013) para 73
Hi Nikig,
Thanks for this very in-depth response - I have read all this but am finding it quite difficult to interpreting it all! The father is a British citizen (although they are separated & not married) - would this make a difference? I read somewhere that if the children could be cared for by another primary carer that has the right to reside this muddies the water - but it could be challenged on a case by case basis under EU law and maybe human rights – for example, the children have the right to maintain a relationship with both parents etc?
No, there is no required period. The sole question is, has the parent been economically active in the host member state for any period where the work can be considered genuine and effective (including whether or not the question of the length of the period has itself formed part of the determination as to whether that work has been genuine and effective)?
Once that question has been answered in the affirmative then you only have to establish similar facts as outlined in Teixeira in the ECJ, and the claimant has a right to reside which is not dependent on either the EU Directive or the Immigration regulations but on the anti-discrimination provisions of article 10 of EU Regulation 492/2011.
Hi Nevpi,
Thank you for this – I think this is exactly how I am looking at the case – I think. As mentioned above - the father is a British citizen (although they are separated & not married) - I read somewhere that if the children could be cared for by another primary carer that has the right to reside??? But it could be challenged on a case by case basis under EU law and maybe human rights – for example, the children have the right to maintain a relationship with both parents etc? Is this what you mean when quoting article 10 of EU regs 492/2011?
These are British children though, according to OP. I think that rules out a derivative R2R.
It is unfortunate that the client’s period of economic activity came before she had notched up five years’ legal residence. It might be possible to argue that the first six months on Income Support she was still seriously trying to find another job and therefore retained her worker status up to the magic five year point; or that she was on a St Prix maternity break, remaining at that early stage undecided about whether or when to return to the labour market - but that would run into anti-test case rule problems because St Prix hadn’t been decided at the time. Those both seem like tough arguments here.
So the best and most straightforward option is that she is right now in effective and genuine self employment, irrespective of her history. DWP’s decision sounds like confused rubbish, why are they prattling on about 91 days as a jobseeker? Jobseekers cannot get UC anyway. They are probably thinking that the potential to be a jobseeker for 91 days suppresses the claimant’s derivative right to reside (almost certainly wrong) ... but she doesn’t have a derivative right to reside as an EEA parent with British children.
Hi HB Anorak,
Thanks – the problem is that the decision maker is arguing that the Cl was not in genuine & effective work at the start of the UC claim. Cl made UC claim on 30/10/2017 and registered as self-employed with HMRC on 1/11/2018. I read that in order to be in genuine & effective Work the claimant has to show that she has earned at least £155 pw over 3 months or it is not considered genuine and effective employment. Because Cl has only just started self-employment, the first couple of months we’re way below this amount. However, Cl is now earing over £155.00 p/w, however, income will fluctuate each month. Would she need to make a new claim for UC - as she is now considered in genuine effective work, therefore has the right to reside - or should she just provide evidence of earnings and UC now be paid? I agree with regards to the 91 days – just not sure if arguing that she has the right to reside via the parent is affected by the father also being a British citizen – I am sure I read somewhere that he could become the primary carer, therefore it would not affect the children if mum was not around…
The £155 per week for three months is only DWP guidance - it has no basis in law (it is arrived at because it is the level of earnings at which a person begins to pay NI contributions - and is actually now £157 p/w anyway). This ‘‘threshold’ - even in DWP guidance - is the point at which someone’s economic activity is automatically classed as genuine and effective by the DWP.
A whole range of other factors have to be taken into account - the number of hours worked, the duration of employment, whether the work is irregular or erratic etc.
Important to remember that whilst worker status is acquired (i.e. you’re not a ‘worker’ on day one) if someone’s employment is actually genuine and effective, they do not become a worker only after 3 months - i.e. for a permanent right to reside argument the first 3 months would not be discounted - they are a worker from day one.
Easier to think of in the context of self-employment - that also has to be genuine and effective, but a person has a right of residence in order to establish themselves in self-employment - and that is a process - e.g. registering with HMRC, purchasing equipment and tools, advertising the business, following up contacts/opportunities of work. No-one could seriously expect a successful (or genuine and effective) business to have generated the same level of income in the first month or two that it did six or nine months down the line…...
I apologise. I overlooked the UK citizen point.
I assume that children became UK from UK father on birth certificate and that they are dual nationals – UK and Estonian.
However the plain language the right under art 10 doesn’t depend upon the child’s nationality but the worker’s, Although it does say “under the same conditions as the nationals of that State”. (Does “nationals of that state” refer to child or the worker?)
I don’t know of the effect of the dual nationality and whether Teixeira will apply. It is certainly not on all 4s. However I think it should be argued (based upon art 10 rather than the EEA regs).
In practical terms Teixeira seems to have been posited that the caring parent gets the right. whatever the other parent’s situation and can’t prevent the derivative right (unlike Zambrano) because it is being argued that the child could be with the father.
Assume the father is dead. Would the child have to go into care or go to Estonia because mum doesn’t have a RTR?
I think the right is given to the caring parent even though the child may be UK citizen.
The judgment in Teixeira inter alia said this
36. In Baumbast and R the Court held, in connection with the right of access to education set out in Article 12 of Regulation No 1612/68 and under certain conditions, that the child of a migrant worker or former migrant worker has a right of residence in order to attend educational courses in the host Member State, and that the parent who is the child’s primary carer has a corresponding right of residence.
37. Thus the Court ruled, first, that the children of a citizen of the Union who have installed themselves in a Member State during the exercise by their parent of rights of residence as a migrant worker in that Member State are entitled to reside there in order to attend general educational courses there, pursuant to Article 12 of Regulation No 1612/68. The fact that the parents of the children concerned have meanwhile divorced and the fact that the parent who exercised rights of residence as a migrant worker is no longer economically active in the host Member State are irrelevant in this regard (see, to that effect, Baumbast and R, paragraph 63).
38. Second, the Court also ruled that, where the children enjoy, under Article 12 of Regulation No 1612/68, the right to continue their education in the host Member State although the parents who are their carers are at risk of losing their rights of residence, a refusal to allow those parents to remain in the host Member State during the period of their children’s education might deprive those children of a right which has been granted to them by the legislature of the European Union (see, to that effect, Baumbast and R, paragraph 71).
39. After observing, in paragraph 72 of Baumbast and R, that Regulation No 1612/68 must be interpreted in the light of the requirement of respect for family life laid down in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, the Court concluded, in paragraph 73 of that judgment, that the right conferred by Article 12 of that regulation on the child of a migrant worker to pursue, under the best possible conditions, his education in the host Member State necessarily implies that that child has the right to be accompanied by the person who is his primary carer and, accordingly, that that person is able to reside with him in that Member State during his studies.
40. First, the right of children of migrant workers to equal treatment in access to education, under Article 12 of Regulation No 1612/68, applies only to children who are residing in the Member State in which one of their parents is or has been employed.
41. Access to education thus depends on the child first being installed in the host Member State. Children who have installed themselves in the host Member State in their capacity of members of the family of a migrant worker, and also as the Advocate General observes in point 39 of her Opinion children of a migrant worker who, like Ms Teixeira’s daughter in the case in the main proceedings, have resided since birth in the Member State in which their father or mother is or was employed, may rely on the right of access to education in that State.
Insofar as the EEA regs are concerned
Derivative right to reside
16.—(1) A person has a derivative right to reside during any period in which the person—
(a)is not an exempt person; and
(b)satisfies each of the criteria in one or more of paragraphs (2) to (6).
(3) The criteria in this paragraph are that—
(a)any of the person’s parents (“PP”) is an EEA national who resides or has resided in the United Kingdom;
(b)both the person and PP reside or have resided in the United Kingdom at the same time, and during such a period of residence, PP has been a worker in the United Kingdom; and
(c)the person is in education in the United Kingdom.
(4) The criteria in this paragraph are that—
(a)the person is the primary carer of a person satisfying the criteria in paragraph (3) (“PPP”); and
(b)PPP would be unable to continue to be educated in the United Kingdom if the person left the United Kingdom for an indefinite period.
best wishes
just a thought on the RTR thro selfemployment
ECJ Case law, having regard to the recitals, says that the citizen’s directive is to codify and strengthen the rights existing beforehand and is to interpreted as not dropping rights.
Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.
The old directive – Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services provided
Article 1
1. The Member States shall, acting as provided in this Directive, abolish restrictions on the movement and residence of:
(a) nationals of a Member State who are established or who wish to establish themselves in another Member State in order to pursue activities as self-employed persons, or who wish to provide services in that State;
You will note “wish to establish”. The genuine and effective has to be seen in light of what they were doing to establish themselves rather than the amount of work/the number contracts of work contracted/the profits obtained.
The £155 per week for three months is only DWP guidance - it has no basis in law (it is arrived at because it is the level of earnings at which a person begins to pay NI contributions - and is actually now £157 p/w anyway). This ‘‘threshold’ - even in DWP guidance - is the point at which someone’s economic activity is automatically classed as genuine and effective by the DWP.
A whole range of other factors have to be taken into account - the number of hours worked, the duration of employment, whether the work is irregular or erratic etc.
Important to remember that whilst worker status is acquired (i.e. you’re not a ‘worker’ on day one) if someone’s employment is actually genuine and effective, they do not become a worker only after 3 months - i.e. for a permanent right to reside argument the first 3 months would not be discounted - they are a worker from day one.
Easier to think of in the context of self-employment - that also has to be genuine and effective, but a person has a right of residence in order to establish themselves in self-employment - and that is a process - e.g. registering with HMRC, purchasing equipment and tools, advertising the business, following up contacts/opportunities of work. No-one could seriously expect a successful (or genuine and effective) business to have generated the same level of income in the first month or two that it did six or nine months down the line…...
Thanks for this - had a crazy amount of reading to do yesterday. It makes much more sense now :)
I apologise. I overlooked the UK citizen point.
I assume that children became UK from UK father on birth certificate and that they are dual nationals – UK and Estonian.
However the plain language the right under art 10 doesn’t depend upon the child’s nationality but the worker’s, Although it does say “under the same conditions as the nationals of that State”. (Does “nationals of that state” refer to child or the worker?)
I don’t know of the effect of the dual nationality and whether Teixeira will apply. It is certainly not on all 4s. However I think it should be argued (based upon art 10 rather than the EEA regs).
In practical terms Teixeira seems to have been posited that the caring parent gets the right. whatever the other parent’s situation and can’t prevent the derivative right (unlike Zambrano) because it is being argued that the child could be with the father.
Assume the father is dead. Would the child have to go into care or go to Estonia because mum doesn’t have a RTR?
I think the right is given to the caring parent even though the child may be UK citizen.The judgment in Teixeira inter alia said this
36. In Baumbast and R the Court held, in connection with the right of access to education set out in Article 12 of Regulation No 1612/68 and under certain conditions, that the child of a migrant worker or former migrant worker has a right of residence in order to attend educational courses in the host Member State, and that the parent who is the child’s primary carer has a corresponding right of residence.
37. Thus the Court ruled, first, that the children of a citizen of the Union who have installed themselves in a Member State during the exercise by their parent of rights of residence as a migrant worker in that Member State are entitled to reside there in order to attend general educational courses there, pursuant to Article 12 of Regulation No 1612/68. The fact that the parents of the children concerned have meanwhile divorced and the fact that the parent who exercised rights of residence as a migrant worker is no longer economically active in the host Member State are irrelevant in this regard (see, to that effect, Baumbast and R, paragraph 63).
38. Second, the Court also ruled that, where the children enjoy, under Article 12 of Regulation No 1612/68, the right to continue their education in the host Member State although the parents who are their carers are at risk of losing their rights of residence, a refusal to allow those parents to remain in the host Member State during the period of their children’s education might deprive those children of a right which has been granted to them by the legislature of the European Union (see, to that effect, Baumbast and R, paragraph 71).
39. After observing, in paragraph 72 of Baumbast and R, that Regulation No 1612/68 must be interpreted in the light of the requirement of respect for family life laid down in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, the Court concluded, in paragraph 73 of that judgment, that the right conferred by Article 12 of that regulation on the child of a migrant worker to pursue, under the best possible conditions, his education in the host Member State necessarily implies that that child has the right to be accompanied by the person who is his primary carer and, accordingly, that that person is able to reside with him in that Member State during his studies.
40. First, the right of children of migrant workers to equal treatment in access to education, under Article 12 of Regulation No 1612/68, applies only to children who are residing in the Member State in which one of their parents is or has been employed.
41. Access to education thus depends on the child first being installed in the host Member State. Children who have installed themselves in the host Member State in their capacity of members of the family of a migrant worker, and also as the Advocate General observes in point 39 of her Opinion children of a migrant worker who, like Ms Teixeira’s daughter in the case in the main proceedings, have resided since birth in the Member State in which their father or mother is or was employed, may rely on the right of access to education in that State.Insofar as the EEA regs are concerned
Derivative right to reside
16.—(1) A person has a derivative right to reside during any period in which the person—
(a)is not an exempt person; and
(b)satisfies each of the criteria in one or more of paragraphs (2) to (6).
(3) The criteria in this paragraph are that—
(a)any of the person’s parents (“PP”) is an EEA national who resides or has resided in the United Kingdom;
(b)both the person and PP reside or have resided in the United Kingdom at the same time, and during such a period of residence, PP has been a worker in the United Kingdom; and
(c)the person is in education in the United Kingdom.(4) The criteria in this paragraph are that—
(a)the person is the primary carer of a person satisfying the criteria in paragraph (3) (“PPP”); and
(b)PPP would be unable to continue to be educated in the United Kingdom if the person left the United Kingdom for an indefinite period.best wishes
Wow thanks so much for the time you have taken to reply - I think this is is much clearer and has help a great deal!! Thank you :)
just a thought on the RTR thro selfemployment
ECJ Case law, having regard to the recitals, says that the citizen’s directive is to codify and strengthen the rights existing beforehand and is to interpreted as not dropping rights.
Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.The old directive – Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services provided
Article 11. The Member States shall, acting as provided in this Directive, abolish restrictions on the movement and residence of:
(a) nationals of a Member State who are established or who wish to establish themselves in another Member State in order to pursue activities as self-employed persons, or who wish to provide services in that State;You will note “wish to establish”. The genuine and effective has to be seen in light of what they were doing to establish themselves rather than the amount of work/the number contracts of work contracted/the profits obtained.
Thanks once again :)
I don’t know if it just me but I find the R2R and HRT very brain draining! Really, thanks for all your replies!