Derivative right to reside as a primary carer.

I will keep this simple. Under UC, have any of the derivative rights to reside changed from legacy benefit legislation?

Romanian National was living with her Romanian partner (not married) She did some SE work and he has worked for several years PAYE. They separated through DV a few months ago. Have a 12 year old son who is in FTE.

UC have made a decision that as there was not a common period where she was a worker (even though the SE doesn’t count) and child was in education, she is not eligible!
I know the common period quote is a mistake BUT the fact that Dad has been a worker (they have evidence) and child is in FTE AND Mum is the primary carer should mean an entitlement to UC? He is not working now (lost job a few months ago)

The child has the right to continue his education so therefore Mum as his main carer should be granted the RTR? They are in social housing and the rent arrears are racking up so now threatened with homelessness.

Thanks in advance :-)

Is this one of those cases where the DWP say the derivative right doesn’t kick in because she has rights as an EU national which take priority. In this case the prior right would be to to look for work and work.

An EU national who is looking for work does not have a right to reside for UC

They didn’t say that in the decision letter. Their reason actually stated that there wasn’t a common period where child in FTE whilst she was a worker.
I forgot to mention she is pregnant (late stages) so having to look for work would not be the case.

Sally63 - 06 March 2018 07:27 PM

Is this one of those cases where the DWP say the derivative right doesn’t kick in because she has rights as an EU national which take priority. In this case the prior right would be to to look for work and work.

An EU national who is looking for work does not have a right to reside for UC

Talk about an oxymoron… You can’t have any money to protect your child’s right to education because you can establish a right to reside via a route where we won’t give you any money anyway.

There has simply got to be a natural justice argument against that.

look at this http://www.cpag.org.uk/content/right-reside-some-positive-case-law

and this

https://www.gov.uk/government/publications/derivative-rights-of-residence-ibrahimteixeira-cases

the cpag welbens pg1566 references Teixeira for this derivative right.

government guidance par 15 seems to support what you say (not what they have written)

But par 6
Derivative rights of residence only arise where the person in question has no
other right to reside under the Regulations. It is not therefore possible for
someone to have a derivate right and some other right of residence under the
Regulations.

would seem to say that as an EU national who could work she cannot claim a derivative right—she has a right to work.

Sally63 - 07 March 2018 11:52 AM

would seem to say that as an EU national who could work she cannot claim a derivative right—she has a right to work.

Edit; no it doesn’t it says if she’s a worker already she can’t derive an additional right.

I had a UT case on this recently and Judge Jacobs simply said “I don’t understand that” having already set the decision aside on other grounds.

My sub on the issue:

“requiring the appellant to have exhausted all potential rights to reside before being able to utilise a derived right pursuant to regulation 15A of the Immigration (European Economic Area) regulations 2004 is erroneous. Regulation 15A(6)(c) of those regulations makes a person an “exempt person” where they already have a right to reside but does not contemplate the potential to acquire such a status.”

The FtT it was remitted back to agreed. DWP sent a PO that insisted that was not “their policy” and blustered when I told her that policy was not law.

edit: PO had travelled from Sheffield so I suspect they were from DMA or ACI at Quarry House.

On the facts provided, your client has a derivative right to reside on the Teixiera basis for the reasons you have given. That’s really the end of it.

(She might well have a right to reside as a self-employed person during the maternity period instead or as well; see HMRC v HD & GP [2017] UKUT 11 (AAC) and the upcoming decision on CF/393/2016 - but it doesn’t really make any difference).

The DWP has in some cases been arguing that an “exempt person” including a jobseeker cannot benefit from a derivative right to reside - however I think it is premature to assume that’s the reason for this decision. First instance RTR decisions include all sorts of nonsense. By the sounds of it the DM in this case has just got confused or has not seen the right evidence. Recently saw a derivative right case being refused because “you do not have a partner and therefore cannot have a derivative right to reside”.

If they put forward the “jobseeker” argument on appeal then you can address it. I doubt that the DWP will try to argue she is a jobseeker unless she would fit in the all work-related requirements group, which obviously depends how far along in the pregnancy she is.

Thanks for all your helpful comments.
Much appreciated! Will see how it goes!