Right to reside help needed - Urgent

Hi All,

I am hoping someone on here could help me with a rather complex case I have at present. This has been made harder due to a lack of information and engagement from the clients.

I have a client who is Portuguese and she has 2 children (17 in non-advanced education, and 24 year old with learning difficulties, not in work). Both the Mother and eldest daughter (Also Portuguese national) have been deemed not to have the right to reside when claiming UC. The mother is looking for some work but I don’t know how hard. She has now been referred to an external partner to look for work. The mother has worked sporadically but it seems to not be enough for her to be able to receive UC.

Also, a couple years ago the daughter (24) was successful in winning an ESA appeal at tribunal. However, she still has not received this due to being deemed not having the right to reside. She receives the highest rate of PIP daily living.  The 17 year old is in non-advanced education. At present they are living off the child benefit received for the 17 year old and PIP from the eldest daughter.

Questions:

I believe the Mother has derivative right to reside am I right? She is the primary carer of a child (receives Child benefit) who is in education.

“A ‘derivative right to reside’ exists to support children through education within the European Economic Area. It is recognised that a child’s education should not be disrupted wherever possible”.

The daughter who is 24 has never worked and I am struggling where to go with this. Any help?

Am I right in saying if we can get the mother sorted then the elder daughter should be ok as she will be a family member of someone with the right to reside.

Lastly, If we do get the Mother right to reside due to having derivative right to reside, will this only be until the younger daughter is 18?

Any help on this case would be greatly appreciated.

If you can establish that the mother was in effective and genuine work in the UK at some time during the lifetime of the younger child who was also in the UK at the same time, yes she does have a derivative right to reside.  She cannot, however, pass this on to the older daughter - it isn’t the kind of R2R that attaches to family members.  Where there are other children, they have a derivative right of residence because it is recognised that the parent and sibling would be in an impossible position if the other sibling does not have R2R.  The legislation does not expressly extend this concession to disabled non-deps.  It might make a promising UT appeal one day, but for now I don’t see how the daughter has a R2R that will allow her to claim means tested benefits in her own right.

How long with the mother’s R2R last?  Until the younger child is no longer in education, or no longer needs to be looked after by a parent.  18 is not the automatic cut-off, depends on all the circumstances.  A logical review point would be if s/he gets packed off to uni I suppose.

P.S. Usual disclaimer, I am not qualified to say this otherwise I could be thrown in the tower, but perhaps they might consider asking a licensed adviser whether an application for settled status would be a good idea - for the daughter it’s the only option I think and it won’t be retrospective.  But I really have no business saying things like that.

What about the 17 yo child’s father? EEA Worker? Has he worked in UK whilst the 17 yo resided in UK? Does mother have any details of the father, name, NIno?

Settled Status all the way- that’s for sure. If not, at least pre-settled and use this: https://cpag.org.uk/welfare-rights/judicial-review/judicial-review-pre-action-letters/eu-pre-settled-status

None of these options are going to result in swift outcome though :(

What was mum claiming before UC?
Even sporadic work can result in retained worker status
I would (i appreciate difficult in your case) get full work history and claiming history and what happened during any gaps from mum and from dad if relevant.
UC can miss facts like the person has already established a permanent right to reside.

Hi All,

Thanks for the replies.

In regards to the first response, yes I am failing to see anyway we can get the daughter a Right to reside at present.

I will ask about the 17 year old’s father but I have feeling he does not reside in the UK and has not done for sometime.

Prior to UC I believe the mother was in in receipt of JSA and HB. She then got in to work for a while before leaving the role and having to claim UC.

I have been made aware that there may be an uncle around. Am I right in saying there could be away through all this if he is in genuine and effect work?

Thanks

does the time on JSA followed by some work add up to 5 years?

I’d echo the above re. settled status. It really is a whole lot more straightforward as you are just having to show 5 years factual residence and not a right to reside. One of my colleagues had a similar case (very sketchy RtR argument due to gaps in benefit/employment record but clear factual residence) and the settled status came through in a week I think.

HB Anorak is right to caution about not providing immigration advice. From my own perspective I think that you are safe to direct the client’s attention to the government provided information on settled status which should make it clear without having to give any advice that the client will need to apply anyway as an EU national who wishes to remain in the UK and that they will be granted settled status provided they can show 5 years continuous residence and pre-settled status otherwise. Of course if the client starts asking questions about potential breaks in residence/querying the definition of residence itself you’ll need to direct the queries to a qualified adviser.

I think the situation to be much more careful about would be for non-EU people who are considering making applications for settled/pre-settled status via their connection to an EU national - as my understanding is that these people have the choice of doing this or applying for leave to remain in their own right. The question of which to do is one that is definitely immigration advice to be steered clear of.

see https://www.rightsnet.org.uk/forums/viewthread/14561/
will she be classed as a jobseeker as this seems to currently trump derivative rights even though this is being challenged through UT

I agree with Julie.
My understanding is that R2R as a Jobseeker trumps a derivative right and,, therefore, would not entitle her to UC.
Better to establish, if possible, that she retains worker status.

CJ, in post 4 you say she was in a job before leaving it. Did she leave a job voluntarily? Also uncle can not entitle them to a Right to Reside unless the family came over on a family permit including them and uncle on the permit.

Jim

Julie HC - 26 February 2020 10:42 AM

see https://www.rightsnet.org.uk/forums/viewthread/14561/
will she be classed as a jobseeker as this seems to currently trump derivative rights even though this is being challenged through UT

HarlowAC - 26 February 2020 02:15 PM

I agree with Julie.
My understanding is that R2R as a Jobseeker trumps a derivative right and,, therefore, would not entitle her to UC.
Better to establish, if possible, that she retains worker status.

But she will be exempt from any work related activity as a carer for a severely disabled person on PIP, therefore, as long as she does not make a public show of seeking work, she will not have a right to reside as a jobseeker and nothing will suppress her derivative right.  She only needs to maintain this state of affairs until she gets her settled status through, a qualified immigration adviser might say (but not me, oh no).

Good point. CJ, did client declare herself to be a carer on her UC claim?

of course -  had forgot that she was carer!