right to reside income support

Polish national, 3 children all age under 3 no partner, came to UK as a child , left school and worked in UK for 3 years before any children born, not working or looking for work at present . . has claimed income support and been refused, does this person have any grounds to challenge the Is refusal ? receives CTC CB and has just claimed HB

What age did she come to the UK? Who did she come with? Did the people she came with (hopefully this will have been the parents) exercise any right of residence themselves? If so, for how long and when (when, in particular, in relation to the three years’ work your client did).

Where are they now? If they are still in the UK, how old is your client?

client came to UK age c14 with parents, believed they worked , do not know where that are now, cl is now age 23

What was she doing/living on between ceasing work and her IS claim?

she receives ctc and cb also Hb

OK….

a) If she thinks parents worked then it is quite possible that she might have a permanent RtR given that she has done 3 years’ work herself and will have automatically been a dependent family member of her parents until she turned 21. If she can provide at least sufficient information for parents to be identified (NINos would be ideal, but full names, dates of birth and previous addresses should be sufficient) then ask DWP to check CIS system for a record of their NI contributions - this will allow you to establish/argue whether she was dependent family member of a worker….

If it gets so far as FtT, request a direction that DWP provide this info - cite Kerr principles in support of that application.

b) Is/are the father(s) of any of the children currently EU workers residing in the UK? If so, their children are family members (and have a right to reside as such) and your client is their primary carer…..

Well… on presumption she’s been a LP living on her CB/CTC/HB since leaving work (so has effectively broken the link to her previous worker status) I think it’s all going to hang on whether she has a permanent ROR via her parents. If they arrived in the UK when she was 14 and one or other of them has legally worked for 5 years (or she can link her 3 years of work with one or other of her parents being in work prior to that) she should be OK.

thanks PC and 1964 for above, I wondered if the fact that father is EEA citizen and works in UK would give a right to reside, that seemed a bit too easy to hope for as it would mean that all single EEA parents with an absent EEA parent still working in UK can claim income support !!

It is certainly arguable - while there’s a Baumbast analogy, the argument is in some respects more forceful (in the sense that the EU worker is still in the UK exercising a right of residence, whereas for art 10. reg. 492/2011 the worker parent might have departed the UK). The child of EU worker undoubtedly as a right to reside - but to make that right a real one, the primary carer must have a right of residence. If I remember rightly (Martin Williams on here will advise if I’m wrong) this argument has been used succesfully at FtT and hasn’t then been challenged to UT level by the DWP…...

sounds more complicated than I thought, does my client need her own rtr or can she rely on the child’s rtr ?

There are potentially two different rights of residence here;

1.  the permanent one she might have as a result of her parents’ work (i.e. as the dependent family member of a worker) - possibly in combination with the three years work you say she did herself.

2. as the primary carer of a child who has a right to reside. As the child is the family member of a worker, s/he has a right to reside - your client has a right to reside (as in Baumbast, Ibrahim, Teixera) as the primary carer of that child. In other words, your client has to have a right of residence in order to give effect to the child’s.

These are not mutually eclusive rights - arguing for one does not mean you cannot argue for the other. And a person can quite properly have more than one right of residence at the same time.

However, whilst the permanent right might be a bit more difficult to establish (as you will need to show that the parents’ work was sufficient to give her a permanent right - and she’s not in touch with them) it is far more secure than any right as the primary carer because if the father leaves the UK or stops being a worker before their child enters education, the child - and consequently your client - will lose their right of residence.

Thanks PC, yes number 1 is a better right but number 2 looks an easier one establish , we will go for both perhaps