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r2r based on ex-partners rights also primary carer
Recently completed and SSCS1 for a client who was refused UC based on her r2r.
Came to the UK roughly 18ys ago from Portugal LA housed, Partner Portuguese moved in in 2009, LA made aware partner moved in and clints IS, HB and CT ceased. Lived 8 yrs together, financially dependent on him, Child born in 2014, Partner left the home sept 2017. Client remains primary carer of child of partner he still works.
Some work but sporadic, studied briefly too.
Any opinions?
[ Edited: 4 Jun 2018 at 03:52 pm by Christine001 ]On those dates, probably no conventional Ibrahim-style derivative right to reside until September this year or next when child starts school.
And here is another example of the inferior position of unmarried partners in the case of relationship breakdown: if they are no longer in a durable relationship, she has no residence rights as a partner/ex partner
There is a possible derivative right to reside argument, which is that the child has a right to reside as the child of a worker and without her around the child’s right is rendered meaningless (a bit like Chen, where the child was self-sufficient). But I don’t think this will work - as a matter of law there is nothing to stop the parent who is a worker looking after the child. I am not saying that is a practicable or desirable arrangement (I know nothing about these people) but legally I think the child’s current right to be in the UK stems from the working father who is also here, so nobody else can cling onto those coattails.
It is only after the child starts school that the established case law contemplates a derivative right of residence based on the practical arrangements - who actually looks after the child.
[ Edited: 4 Jun 2018 at 04:09 pm by HB Anorak ]However, the client was here independently from 2000-2009, how did she support herself in this time? Is it possible to establish 5 years lawful residence in this time (and possibly after then) when she was worker or jobseeeker in order to establish a permanent right to reside?
On those dates, probably no conventional Ibrahim-style derivative right to reside until September this year or next when child starts school.
And here is another example of the inferior position of unmarried partners in the case of relationship breakdown: if they are no longer in a durable relationship, she has no residence rights as a partner/ex partner
There is a possible derivative right to reside argument, which is that the child has a right to reside as the child of a worker and without her around the child’s right is rendered meaningless (a bit like Chen, where the child was self-sufficient). But I don’t think this will work - as a matter of law there is nothing to stop the parent who is a worker looking after the child. I am not saying that is a practicable or desirable arrangement (I know nothing about these people) but legally I think the child’s current right to be in the UK stems from the working father who is also here, so nobody else can cling onto those coattails.
It is only after the child starts school that the established case law contemplates a derivative right of residence based on the practical arrangements - who actually looks after the child.
I can see no difference in principle between the right of a child of a worker to enter and complete education and a child’s right to reside as the family member of a worker. Both will require a primary carer to give effect to that right. It is an argument that I have made successfully at FtT a number of times. I believe there ‘may’ (cough) be a case on the point at the UT presently.
One reason that there is not decided caselaw on the point may well be the Secretary of State’s strategic approach to which cases she choses to litigate…...
Thanks for your comments..
She came with a child who at the time was 3yrs, went through the education system, he is now working (maybe not 2yrs) and still living at home.
Does he contribute to the household finances?
Recently completed and SSCS1 for a client who was refused UC based on her r2r.
Came to the UK roughly 18ys ago from Portugal LA housed, Partner Portuguese moved in in 2009, LA made aware partner moved in and clints IS, HB and CT ceased. Lived 8 yrs together, financially dependent on him, Child born in 2014, Partner left the home sept 2017. Client remains primary carer of child of partner he still works.
Some work but sporadic, studied briefly too.
Any opinions?
CPAG have a case on this in the UT- hearing is tomorrow. See p336 at [2.7.4] in HB Legislation volume. Argument is: Child has a right of residence. To render that right effective then mother needs a right.
Hi martin how did the hearing go?