Right to reside, child is the qualifying national

I have a family, a mother with 4 children ranging 1 month to 18 years old. Has lived in the UK since 2015 but never claimed benefits or worked, her partner who has always lived in Portugal has supported them. Partner has now abandoned the family.

Mother has no right to reside, her 18 year old son is working and has been working for just over 3 month, he has claimed UC and has satisfied the Right to Reside with worker status.

My thinking is that the mother can have R2R as a family member of her son as she is now dependant on him (as are his brothers and sister) 7(c)EEA Regs 2016. Job Centre are aghast at my very suggestion and state that she is not dependant on her son. Furthermore they mentioned that even if this were possible the other children could not be claimed for.

The first three qualifying conditions are straightforward, they can prove their relationship, it is the dependency that they need to evidence. Social services are now involved as mother is unable to feed her family and are considering returning her to Portugal if she is destitute.

Any thoughts or help on what I need to do to get my ducks in a row would be much appreciated and also am I missing anything obvious or not so obvious?

You said that one of the children is 1 month old but that the partner has never been in UK and mum has been living in the UK since 2015. And then when the child has been born, the partner has suddenly withdrawn financial support which they had provided for four years. Obviously that’s not an impossible set of facts, but I am just wondering if it might be that this is something which needs exploring further as possibly it might lead to some alternative avenue.

I wouldn’t give two hoots about what JC+ think they know about right to reside. I think that your argument is probably a bit of a stretch but it might be the only option which is jumping out from the facts you have given. It is a bit difficult to argue genuine dependence in circumstances where, by the sounds of it, the son is only providing temporary financial support only due to the refusal of benefit. Ideally you would want to show that he was providing some practical support and other help.

It is nonsense to suggest that UC wouldn’t pay for the kids. The question is whether the claimant has a right of residence - if they do then the child elements are included. By the same token, if the child has a right of residence and the parent doesn’t, UC would be refused entirely.

It’s not within the power of social services to return her or the children to Portugal. They can suggest or facilitate a return but that’s not their decision to make. They ought to be considering whether to provide support under s17 Children Act.

Thanks Elliot
The partner has always lived in Portugal but visits the family in the UK occasionally, hence the pregnancy, I’m not sure when the financial support was withdrawn. I know that the son has applied for joint tenancy and deals with his mothers personal affairs, mainly for language barrier I think and he takes the other children to school.

Social services are considering support under s17 but as ever they want to explore access to benefits as part of their assessment. They have take legal advice and yes you are correct they can facilitate return but not force it.

I’m not influenced by what Jobcentre think and I know that if the mother can have a derived R2R she can claim for the children but when faced with denials and obstacles at this early stage you know the argument is going to be a challenge.

Previously DWP have accepted that an adult child was dependent on a parent when the child was over 25, did not live with them and was only receiving financial support due to being refused benefit. Is that not temporary support as you mention in your post?

Ultimately this is why I need help on what constitutes dependency.

jeanette - 19 June 2019 06:39 PM

Ultimately this is why I need help on what constitutes dependency.

The caselaw on this is discussed in CIS/2100/2007. Judge Jacobs says at 44:

In summary, the case law is authority for these propositions:
• A person is only dependent who actually receives support from another.
• There need be no right to that support and it is irrelevant that there are alternative sources of support available.
• That support must be material, although not necessarily financial, and must provide for, or contribute towards, the basic necessities of life.

See also ADM C1598 which quotes this paragraph.

Financial support, help dealing with the younger kids, help with interpretation could all contribute towards showing dependency. The more the better really. I suppose that ideally, to have the best chance of getting the decision you want, you would want to show that the parent had multiple needs in various areas of the “basic necessities” of their life which were being met by the worker in a stable and long-term way which is likely to continue - but it will turn on the particular facts at the end of the day.

Thank you I will look at this more closely.