Right to reside when palliative

I have a colleague working with an EEA national aged 23 who has been here in UK and working for a couple of years. He has given up work and applied for ESA. He was recently diagnosed with a brain tumour and has 3-5 years to live. It is not currently at the stage of DS1500.

Does anyone have any thoughts on this in the context of retaining worker status through being ‘temporarily’ unfit for work? I know temporary can be used very flexibly - but any further guidance? The benefit has not been refused currently.

Thank you.

His inability to work must be temporary, so if it could be argued that over the next 3-5 years he may be able to do some work, then he should still be able to have his right to reside as a worker. He may have periods in between treatment that he feels he is capable of doing some work. I see people with brain tumours who want to get back to doing some work whenever they feel well enough. Would CIS/3890/2005 be any use?

By the sounds of it given the prognosis your client is more likely to be facing a permanent incapacity rather than temporary illness? This is covered in Article 17(b) of the Citizenship Directive (2004/38). So long as your client has resided continuously for over 2 years and stopped working as a result of a permanent incapacity to work, he will be covered under this legislation.

Thank you both :)