Right to reside and family member

Hello,

My client is an elderly lady, from Poland, who has been here since Sept 2008 surviving on her polish pension and attendance allowance. She lives with her Son who is Polish and has been here since the 1980’s and is now a British National. He is working part time and caring for her part time.
They made a claim for pension credit which was awarded for a short period and then stopped with the DWP citing changes to EEA regs which were changed on 16/10/12 to stop those with a dual nationality falling under the definition of an EEA national.
My feeling is that she should be able to derive a R2R as a family member who is dependent on her Son who has a R2R but I would be grateful for some further help on this please.

Thanks,
Lauren

British nationals in GB generally do not count as EEA nationals and derive their right to reside from their citizenship, not from EEA law. I don’t think therefore there can be any right to reside derived from her son’s rights under EEA law - what there might be under British domestic law could be another question but not one I’m qualified to answer.

In The Immigration (European Economic Area) Regulations 2006 ““EEA national” means a national of an EEA State who is not also a United Kingdom National” (effective from 16/7/12).  However, there is regulation 9.  This appears to allow for some relaxation of the rule for British nationals who are exercising, or have exercised, EC Treaty rights.

Family members of United Kingdom nationals
9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a
person who is the family member of a United Kingdom national as if the United
Kingdom national were an EEA national.

(2) The conditions are that–
(a) the United Kingdom national is residing in an EEA State as a worker or self employed
person or was so residing before returning to the United Kingdom; and
(b) if the family member of the United Kingdom national is his spouse or civil
partner, the parties are living together in the EEA State or had entered into
the marriage or civil partnership and were living together in that State before
the United Kingdom national returned to the United Kingdom.

(3) Where these Regulations apply to the family member of a United Kingdom
national the United Kingdom national shall be treated as holding a valid passport
issued by an EEA State for the purpose of the application of regulation 13 to that
family member.

Thank you both