UC RTR Job seeker status trumps derivivative right

client claimed UC, refused due to RTR, MRN states she has job seeker status for 91 days but cant be paid UC as a job seeker. they then go onto say they have accepted she has a derivative right to reside as a former worker with a child in education. however they have to look at non derivative rights first and as she has job seeker status that trumps her derivative right so she has to wait 91 days and exhaust that right first before she can be paid!!

surely that’s not right!!

but just looked in new CPAG page 1585 and it does actually sound right!

thanks

There might be arguments - CPAG on page 1586 refers you to benefits and migrants handbook - also see this thread https://www.rightsnet.org.uk/forums/viewthread/14289

This is a perennial favourite on the form: does jobseeker status temporarily suppress derivative rights and deprive the family of means tested benefits?

It’s right if you go by the Immigration (EEA) Regs 2016, which are drafted so that derivative rights are a last resort: a person with a conventional right of residence (including a “jobseeker”) is an “exempt person” who does not require a derivative right of residence.

But derivative rights are provided for by European Regulations, which do not require transposition into national legislation.  Article 10 of Reg 492/2011 says the child is to be educated under the same conditions as the child of a host state national and that the host state should ensure this happens under the best possible conditions.  You also have cases like Ibrahim and Teixeira which say that having recourse to social assistance does not undermine derivative rights.  The claimant can rely on Regulation 492/2010 directly in any appeal, but preferably DWP should do so as well.

I’m surprised this issue hasn’t managed to find its way to the UT yet - it comes up a lot.

HB Anorak - 28 May 2019 10:34 AM

I’m surprised this issue hasn’t managed to find its way to the UT yet - it comes up a lot.

 

It’s been touched on a couple of times but both where the FtT has declined to look at other R2Rs as a route to entitlement thus it’s never been decided. Judge Jacobs simply told me “I don’t understand that” last year after remitting back for the reasons discussed above.

I’ve been advised by a CAB in Bradford that - following a refusal of UC at First-tier Tribunal on the basis that jobseeker status trumps derivative right of primary carer - the case is now going to the UT.

Permission was granted on the grounds that, although in the Judge’s view the legislation had been applied correctly, it would be advantageous to have a UT decision on the point raised by UT Judge Jacobs in HK v SSWP [2017] UKUT 421.

Pleased to see this apparently going to UT (finally).

Given that the point made by Judge Jacobs in HK is that the DWP’s position is yet to be coherently explained in terms of domestic or EU law, I think the Judge might be right…

I had one on this point which I thought was going to UT but the DTJ in my case just reviewed the decision in my clients favour, after having given the DWP three months to respond to my grounds of appeal without a peep.

Just wondering if the one Daphne mentioned was going to UT has been and had an outcome?

I’ve emailed the person who told me to ask if there are any updates - will keep you informed…

Apparently the file was referred to a judge on 13/8 and a response is awaited…

Just had an update on this -

The UT judge has linked the appeal with a similar case and directed a response. The S of S has asked for and been granted an extension of time as Counsel is to be consulted.

Another update -

...the S of S has requested another extension of time to respond to the appeal. They cite brexit and Christmas.

I was presented with one of these superb decisions today.

I can’t see that there’s any way this is a correct interpretation of the EU law.

My case seems to be very similar to the OP. I have put in some arguments about EU law and about how they must be misinterpreting the I(EEA) Regs because it is absurd to say that somebody can have a derived right of residence as long as they refuse to look for work. But mostly I’ve argued that my client isn’t a jobseeker because a jobseeker has to A) have come to the UK to work, B) be looking for (and likely to get) work, and C) not have been a jobseeker before unless they’ve been absent from the UK for 12 months or more in the interim (and mine has been working here for about ten years).

I love the fact that the SSWP needed an adjournment to get counsel’s opinion, but hasn’t been able to do this because of Brexit and Christmas. The next excuse will be that a fox ate their homework.

Very useful article by Desmond Rutledge on this issue -

Denying Universal Credit to Teixeira carers is incompatible with EU law