Right to reside for EEA National through UK National family member?

My client is a Bulgarian National, lived in the UK for 18 months. She is married to a UK National who is currently a full time student. Neither client or husband have worked in the UK.

They have a disabled child, client gets DLA (HRC/LRM) for the child, CA, CB and CTC. Husband’s JSA stopped when he became a full time student, client claimed IS instead to try and get HB/CTB restarted on the advice of the JC, but was turned down for IS as found not to have the right to reside.

Have I understood it correctly that UK nationals do not give residence rights to their family members in the same way as a non UK EEA nationals can? I know that he is not a worker, workseeker or self sufficient student for this purpose anyway, but is there any way that she could be treated as having the right to reside through him on the basis of him having the right to reside automatically as a UK National? I think that answer to this is a no.

If she cannot have the right to reside though her husband on the basis of his UK Nationality alone, I cant see any way that they will be able to claim IS, HB and CTB. He doesn’t seem to fit into any of the groups that can claim HB/CTB as a full time student, and she cannot claim it instead if she doesn’t have the right to reside. He won’t be able to claim the CA due to being a full time student, to then have the option of being the IS claimant instead of the client.

Can anyone think of anything I may have missed here as means of the client qualifying for IS, and/or, HB and CTB, or is the only option for the husband to give up his course to be able to claim JSA, HB and CTB again? If so, all may still not be lost as client is not certain of the colleges definition of whether the course is full time or part time and we only have the JC’s decision to go on at the moment until I can check this out (husband only attends 15 hours per week, no student loan entitlement). So we may be able to challenge that he is treated as a full time student, however just wanted to cover my options before I see them.

Thanks in advance, any ideas would be most appreciated.

Hi Krissie,

1. Appeal the refusal of IS. Not completely clear on grounds but there might be some sort of arguments that can be made (some weird Dereci/Zambrano twist of some sort- can think about that when you get the papers).

2. Meanwhile the claimant (ie Bulgarian citizen) should claim JSA.

3. Because she is married to a UK citizen, she is not a Bulgarian (one of the “A2” states) who is required to be authorised in order to work. See the Accession (Immigration and Worker Authorisation) Regulations 2006 (SI 2006 No. 3317):

“Accession State national subject to worker authorisation”

2.—(1) Subject to the following paragraphs of this regulation, in these Regulations “accession State national subject to worker authorisation” means a national of Bulgaria or Romania.

[.....]

(6) A national of Bulgaria or Romania is not an accession State national subject to worker authorisation during any period in which he is the spouse or civil partner of a national of the United Kingdom or of a person settled in the United Kingdom.

4. As she is not such a A2 national subject to worker authorisation then she can have a right to reside as a jobseeker.

5. Therefore she can claim JSA for the couple. Her work availability should be modified in light of caring responsibilities etc etc.

Great, thanks for the response, really helpful.