My client is a French national aged 19 who came to UK with mother (also French) when aged 10 in 1998. Cl was in school and college, worked for couple of months at some stage, married UK national last year, had baby, now husband has left. Cl applied for IS and failed R2R test.

Cl's own mum is IS claimant. Her father (separated from mum) claims JSA and I'm not sure if he worked here in past.

My questions are:
If, as in Baumbast, my cl had right of residence while in education under Article 12 of EC Reg 1512/68(if her father did work)does that right continue now she's left education?

Does the fact that she's spouse of a UK national give her any right of residence?

Cl has obviously lived here more than 5 yrs but I'm not sure if will count as 'legally resided' as her mum was IS claimant. Am going to use argument of not a proportionate response but am also trying to explore other arguments.

Thanks in advance for your help!

She'll have RTR until the decree absolute comes through -won't she?

But after that, she would need to be looking after a child who was also in education in the UK.

Lots more detail & case law in the final post on this thread:
http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=103&topic_id=3407&mesg_id=3407&listing_type=&page=

The protection until divorce would only occur if the UK national husband was treated as if an EU worker see Reg 9 of the EEA Regs. The fact that she is the spouse of a UK national will not necessarily give her any advantage and can often be a disadvantage.

The key to this may be the father of the 19 year old and what his status is, especially if he and the mum of the 19 year old are only separated.

Baumbast type arguments only work while remaining in education as it is based on Article 12 of Regulation 1612/68.

The interesting angle on this is as you point out whether or not she has a right of permanent residence. I am assuming that you can get her within the Baumbast exception for at least 5 years - installed herself with father and mother who are or were workers and enters educational establishment.

The Domestic EEA Regulation states that a person has to have lived continuously for 5 years "in accordance with these Regulations" (Reg 15(1)(a)). The period of 5 years can also be contributed to by periods before the new Regulation for those that lived in accordance with the 2000 version of the Regulations (Schedule 4 para 6).

From the very fact that you cannot find qualified person status for her and the Baumbast exception is only given limited expression in the new Directive / Regulation, it would appear that she has not lived in accordance with the Regulations.

However, Directive 2004/38 states that a person must have "resided legally" for a continuous period (Article 16(1)). It might be arguable that residence under Article 12 of Regulation 1612/68 was "legal residence". The contra-argument to this is that the preamble to the Directive states that those who have resided "in compliance with the conditions laid down in this Directive" should have permanent residence(para 17). There are potential arguments on both sides of the argument so it might be worth running.

Tim, can I diverge slightly.

I've an appeal under reg15(1) coming up and i'm mulling it over. Clients have been in uk >5 years and due to a fluke of chance lost their transitional protection. They are not qualified people.

My argument is that reg 15(1) should apply as they've been here more than 5 years. SoS says "in accordance with these regs means you must have has r2r all along from another route" to which my reply is that that doesn't fit the rules of stat interpretation as granting r2r after 5 years renders ineffective the other tests such as having worked for 2(?) years before ceeasing activity etc...

2004/38 is drafted with regard to art 18 EC so the legal residence should be art 18 instead of art 39 "qualified person" r2r type. and to read the I(EEA)2006 any differently would not be compatible with 2004/38.

It seems to fit with what you're suggesting above but I'm not 100%, might be useful in Janet's case here though.

I think that an argument using 5 years article 18 residence would qualify as long as the people have not been an unreasonable burden; they would then have lived in accordance with the Regulations. People who have claimed benefits during the five years will likely fall foul of a retrospective assessment of whether they have been a burden. Those who have survived without or with only limited recourse to welfare will probably get snagged on the need for comprehensive health insurance.

I think the regs are trying to be more restrictive than Article 16 which says:

"Union citizens who have resided legally for a continuous period of 5 years in the host member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter 3."

I read this to mean that at the least by the time they reach the 5 years the issue of sufficient resources and having adequate insurance is no longer relevant, though it may have been in the last 5 years. And I can't see why this doesn't apply to anyone who has only just completed their 5 years, ie the 5 years could have begun before April 2006.

The meaning of "legally" in the Article is not defined. Arguably any EEA national who has been living in the UK and hasn't broken any rules or failed to leave if requested to do so has lived here legally. They aren't breaking any immigration law rules, and I can't see that it is actually saying that they had to have a right of residence throughout the period. Anyway, lots of people did have a right of residence for at least 5 years. The latest case I have come across involves soemone who had been living and working here since 1989! The DWP seems to ignore the 5 year category altogether.

If the domestic ruels are more restrictive than the Directive, then I think they must be invalid and the Directive prevail.

Thank you for all of this. I've just heard from another family member that my client's dad (who is also French) is and has been in the past self employed. If that's the case my client is a family member (direct descendant under 21)of a qualifed person. If not the above will be useful.

Tim

I attended the appeal yesterday with my client and it was allowed. We didn't get any evidence that client's father is currently working (in fact it increasingly looks like he may be working and claiming JSA so decided not to pursue that argument) but tribunal accepted my client's evidence that her father worked while she was at school.

I used your argument that residence under Article 12 of Reg 1612/68 was 'legal residence' and that client therefore resided legally for at least 5 years while at school. Chairperson liked this argument and largely used it to allow the appeal.

We just have to wait to see if the DWP appeal now.