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Permanent R2R - IR ESA

 

Pete at CAB
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I feel that I may be ‘over-thinking’ this one and I would be grateful if someone could give an opinion as to whether I am on the right track.

Cl. is a 30 year old EU national and has lived in the UK since the age of 9. From ages 9 -18 he lived with his parents who were, to the best of my knowledge, lawfully working in the UK.

In 2017 he fell ill and claimed ESA, didn’t have enough contributions for CB ESA and was then refused IR ESA as he (allegedly) doesn’t have R2R.

His work history is patchy and it would be difficult to say he should have permanent R2R as a worker as he does not seem to have worked continuously for 5 years.

Article 16 of 2004/38 says that an EU citizens who has resided legally in the country for a period of at least five years gains permanent R2R. Article 7 says that a family member of of a person who is (in this case) a worker has the R2R for more than three months.

I think that the cl. has, by virtue of the time he spent living with his parents between ages 9-18, already resided lawfully in the UK for at least 5 years and therefore already has a permanent R2R regardless of his work history etc but the more i think about it the les sure I get so I would be grateful for any observations/opinions

     
Elliot Kent
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A worker’s family includes his direct descendant’s under the age of 21. It’s irrelevant if they are living together.

After five years of residence in accordance with the directive, you become a permanent resident.

Your client was - on the facts provided - living in the UK as a family member of a worker under these conditions for at least 9 years which would make him a permanent resident.

Now you just have to prove it.

     
Pete at CAB
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Thanks Elliot- as you say, all I’ve got to do is prove it- what could possibly go wrong !

     
Elliot Kent
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I am just thinking - what nationality are these folks? It could be significant if they were not actually exercising treaty rights when they arrived all those years ago.

     
Pete at CAB
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Good point - The family are Portuguese and my Cl. is a Portuguese national.

     
Elliot Kent
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Should all be alright then.

Just as an FYI - it isn’t necessary to show “5 years of continuous work”. The five years just needs to be made up of periods exercising any status. For instance it could be two years as a jobseeker, then two years as a worker, then one year not working due to incapacity or some other combination.

     
Pete at CAB
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Thanks Elliot- I doubt the five years could be made up that way, cl seems to have spent periods of time working with nothing in between

     
hicksg
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I had a similar tribunal recently we had submitted an FOI for both parents to prove that they had met the lower earnings threshold for 5 years while appellant <21yrs. foi too slow and tribunal went ahead PO in attendance - adjournment granted by invoking tribunal rule 24 - with mandates the dwp can look into the work history of the parents this is pertinent to the appeal and not granting an adjournment for time to do this would have been unduly harsh to the appellant who had taken reasonable steps - ie foi themselves and not granting an adj leaves the appellant impecunious. just a handy trick for you in case you are struggling to get the work history in time.