ibrahim / teixeira ruling ...

i have a cl. who is a portugese national who came to uk aged 14 in 2002.
cl. now aged 22 and has two children aged 5 and 1, and is pregnant.
she has been refused i.s on the basis that she does not have the right to reside but has received a letter from jcp asking for details of her child in education and any work undertaken in the uk.
unfortunately, cl. has never worked in uk or another eu member state.
her 5 year old child started school 14/09/09.
having read the concise summary of the ibrahim / teixeira ruling i feel cl. will not be able to claim i.s because she has not worked in the uk or another eu member state for an appreciable period of time, ie : 12 months.
my other concern is that if cl. cannot claim i.s her j.s.a will cease at some point prior to the expected week of confinement, ie : either 2, 6 or 11 weeks before this (i’m not sue when ?), and if this occurs she will not be able to receive h.b / c.t.b either because she is not economically active.
my other thoughts are :
cl. will continue to receive c.b / c.t.c even if j.s.a ceases.
jcp could in the long term decide cl. does not have a right to reside in the uk for benefit purposes because the likelihood of her finding employment with 3 children is not great.
any ideas on this matter greatly appreciated.

just examined matter again and :
because cl. is separated from childs father we cannot argue child has a right of residence on the basis that the father has worked or is working in the uk or another eu member state.
we may be able to argue that cl. has a right of residence because she has been legally in the uk for over 5 years.
again, any thoughts, thanx.

Not a comprehensive answer to the points you make at this stage but:

1. I don’t think it is necessary to work for an “appreciable period of time” (ie 12 months!) in order to take advantage of Teixeira/Ibrahim. It is necessary that one of the parents of the child (who is in education and of whom the claimant is the primary carer) has been a worker in the UK. For that parent to have been a worker then they need to have done sufficient work to show that they were in genuine and effective work etc. There is definitely no fixed time period - indeed in Barry v LB Southwark [2008] EWCA Civ 1440 the person was held to have been a worker as had worked for 2 weeks at Wimbledon.

2. You don’t mention anything about the father of any of the kids- if he is an EEA national and has ever worked then things should be fine from when kid in school.

3. Alternatively if father of any of kids if currently an EEA national and either a worker/self employed person or retaining one of those status or has permanent residence etc then arguably kids have right of residence on that basis and therefore client has right of residence now (and regardless of kid in education bit).

Hope that helps.

Martin.

[OUR POSTS CROSSED SO I WAS WRITING MY FIRST REPLY WITHOUT SIGHT OF YOUR SECOND POST]

Just to be clear- is client married to her ex partner? If so then if separated she still counts as his family member and if he has a right of residence in EU law so too does she. The last post you did I think is wrong (sorry- not trying to be rude- just clear).

If client never married to ex partner then she cannot count as his family member. However kids are plainly still his family members and if he has worked etc then see my above post.

Martin.

hi martin and thank you for your replies.
to answer your queries re : father of child, the answers to your q’s are as follows :
the cl. thinks he is from iraq and aged 24.
she thinks he has a n.i no and has worked in uk.
she thinks he left the area because of problems that arose with home office.
they were not married.
hope this info. clarifies things more for you and thank you again for your replies.

Was either of her parents an EEA national and if so when she came to the UK was it as the dependant of a worker? With people who came in as children the DWP generally fails to consider whether they might have acquired permanent rights of residence under the 5 year rule because of parent’s status.