EEA worker simply a partner, not a spouse or civil partner

My client, a Polish national, had 2 kids with her Polish partner who was working in UK at the time they had children.  They were all in UK and now one of the kids is in education. She then split up with this partner and now has failed HRT for UC you would weep!) because of patchy record of being a “qualifying person” herself. I had checked her history and there are many gaps, some of them longish. She is unable to apply for settled status because her passport has expired and she has no money (£90) to renew it.

The MRN states that she failed HRT because of this and other and also because my client was not a worker herself when the child was in education. She was not asked about her partner, with whom she is no longer in relationship.

I was thinking of her as a “primary carer” but the worker (the dad) was just a boyfriend of few years- the relationship was not formalised in any way. Would that impact on her derivative R2R?

Because she fled DV, she has no details of the partner- his NINO or employment history.  Could we compel DWP to establish these details for themselves, if we give them name and d.o.b and some partial details? (I recall a recent case about DWP obligation to use evidence they already hold…?)

If you are relying on derivative rights, marriage or registered partnership isn’t relevant.

You need to show that the client is primary carer of the child, that the child is in education and that one of the child’s parents was in work at a time when the child was established in the UK.

If you can show that the claimant or their partner was a worker at some point after the child’s birth, you should be good.  You do not need to show that either parent is currently a worker and you do not need to show a prolonged period of work.  Provided that one of the parents was in work at some point when the child was alive and in the UK, the primary carer ought to be covered.

DWP seem to have developed a habit of saying that it needs to be the claimant who worked, even in some appeal submissions, but this is just wrong.

If you can’t prove that by reference to evidence you can find yourself, then it is possible to ask the DWP to explore the former partner’s work history under the duty from Kerr v DSD [2004] UKHL 23 but expect them to get really arsey about it. If your client has a few of their partner’s old payslips down the back of a sofa or something that might be enough.

Thanks Elliot 😊