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derivative right to reside - shared?
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Benefits caseworker - Manchester Citizens Advice Bureau
Total Posts: 143
Joined: 12 July 2010
married couple - UC - if she has been accepted as being a former worker and primary carer of child in education then does her husband have the same right to reside as her as he is her family member?
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Benefits consultant/trainer - hbanorak.co.uk, East London
Total Posts: 2895
Joined: 12 March 2013
Yes. Reg 16(8) and (9) of the Immigration (EEA) Regs 2016.
forum member
Benefits caseworker - Manchester Citizens Advice Bureau
Total Posts: 143
Joined: 12 July 2010
this?
(8) A person is the “primary carer” of another person (“AP”) if—
(a)the person is a direct relative or a legal guardian of AP; and
(b)either—
(i)the person has primary responsibility for AP’s care; or
(ii)shares equally the responsibility for AP’s care with one other person who is not an exempt person.
(9) In paragraph (2)(b)(iii), (4)(b) or (5)(c), if the role of primary carer is shared with another person in accordance with paragraph (8)(b)(ii), the words “the person” are to be read as “both primary carers”.
(10) Paragraph (9) does not apply if the person with whom care responsibility is shared acquired a derivative right to reside in the United Kingdom as a result of this regulation prior to the other person’s assumption of equal care responsibility.
so your saying they treat them as both being the primary carers and sharing the right to reside because they are married?
this is slightly different than him just having the same right to reside as her?
A “qualified person” has a right to reside which is then passed along to their family members such as their spouse.
Derivative rights are not quite the same and are not passed along to family members.
However, as pointed out, “joint primary carers” both have derivative rights.
So it is potentially the same result by a different route.
I’ve had recent problems with the DWP refusing to accept that more than one person can have a right to reside as a primary carer, in spite of the regulations above.
Have a look at the Northern Ireland case attached, in which the DWP (or the Irish equivalent of it) concede that more than one person can have primary carer status - see paragraph 13.
Also, the department’s own guidance in DMG CH0703 suggests that more than one person is able to acquire a derivative right of residence as primary carers of their children.
Good luck.
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- MA_v_Department_for_Social_Development.pdf (File Size: 550KB - Downloads: 1977)