Immigration question

Client has been refused ESA (IR) on the grounds that he does not have R2R.

He is an EU national of about 25 years of age and came to the UK as a child of nine. Other than his most recent employment his employment history is far from clear and not able to be confirmed with documentation.

I think he may have a permanent R2R under Article 16 of Directive 2004/38 but I am wondering whether there is any definition of what ‘legally resided’ in the host state (Para1 of the Article) means.

I understand that it has been suggested that the client does not meet this condition as there is no proof that he was working in the UK for at least 5 years but as he came here when he was 9 he has already passed the five years residence long before he was even old enough to leave school!

Am I barking up the wrong tree with this?

As usual any thoughts gratefully recieved

Resided legally means resided legally within the terms of the Directive.

There are two things making this complicated for him.

The first is that until the age of 21 (apart from any right to reside in his own right) he would also have had a right to reside as good as, but only as good as his parents’ right to reside.  This presents an evidential issue - is he in a position to say what right of residence his parents might have had while he was still a child?  Unless he has got five years’ activity off his own bat he has to persuade DWP that hs parents were working etc.  DWP is obliged to do what it can to help fill in the blanks, having access to records that he hasn’t, but he is going to have to provide as much of the story as he can.

The second problem is that the permanent right to reside under Article 16 didn’t exist until 30/4/2006.  Subsequent case law has established that the five years can fall partly before that date without any problem; it is even possible for the five years to have been completed wholly before 30/4/06 but then there is a further requirement that the person did not stop doing something that would have given them R2R anyway for a period of two years: that was the surprisingly precise decision of the European Court in the Dias case.  So in your client’s case, if his parents worked from, say, 1998 to 2003 then he, as their child, could claim a retrospective permanent right of residence unless the parents then dropped out of economic activity for two years between 2003 and 2006.

Once he reaches the sanctuary of the post 30/4/06 era with a permanent right of residence intact, the only way he can then lose it is by leaving the UK for two years.