Ok, I don't get many of these so I will be the first to admit I'm a bit fuzzy on some of this stuff so any pointers that any one can offer would be much appreciated

Client is polish national, age 26, came to UK in June 06. Uk national boyfriend, togther when she came to the UK, but seperted in August. Gave birth to 1st child in Decemeber 06, mother and baby in good health. Ex b/f now in Germany so problems sorting out maintenance. Previously studied in Poland then some casual work there - no proof!. Client's mother also came to UK. Mother has found f/t work and is registered on teh WRS. Mother also rents a property. Client lives with mother and is basically reliant upon her for food and housing. Friends in poland occasionaly send her dribs and drabs of money to help out.

Client claimed IS in november and subsequently CB. CB was awarded but IS refused on basis that she does not satisfy R2R test (reg 5(2) accession regs). Has been advised to try and find some p/t work, maybe home working, and get registered on WRS but in the meantime:

1. Does she have gounds to appeal the IS decision on the basis that she is exepmt from R2R on the basis that she is the dependant of a worker?
2. CB is also subject to R2R so is it possible that HMRC just missed the issue?
3. As she has been granted CB is she likely be awarded CTC as well?

Apologies if these are dumb questions! Time is fairly short on the time limit for appeal so would appreciate any help!

Short answers are 1) yes 2) yes 3) maybe.

Question 1 is obviously the key. C-316/85 Lebon, available on the ECJ's website, may be supportive of an argument re dependence but depends on their factual situation.

Many thanks for your reply. I did look at Lebon and from the summary part of the judgement it states:

IT FOLLOWS THAT, WHERE A WORKER WHO IS A NATIONAL OF ONE MEMBER STATE WAS EMPLOYED WITHIN THE TERRITORY OF ANOTHER MEMBER STATE AND EXERCISED THE RIGHT TO REMAIN THERE, HIS DESCENDANTS WHO HAVE REACHED THE AGE OF 21 AND ARE NO LONGER DEPENDENT ON HIM MAY NOT RELY ON THE RIGHT TO EQUAL TREATMENT GUARANTEED BY COMMUNITY LAW IN ORDER TO CLAIM A SOCIAL BENEFIT PROVIDED FOR BY THE LEGISLATION OF THE HOST MEMBER STATE AND GUARANTEEING IN GENERAL TERMS THE MINIMUM MEANS OF SUBSISTENCE . IN THE CIRCUMSTANCES, THAT BENEFIT DOES NOT CONSTITUTE FOR THE WORKER A SOCIAL ADVANTAGE WITHIN THE MEANING OF ARTICLE 7 ( 2 ) OF REGULATION NO 1612/68, INASMUCH AS HE IS NO LONGER SUPPORTING HIS DESCENDANT .

THE STATUS OF DEPENDENT MEMBER OF A WORKER' S FAMILY, TO WHICH ARTICLE 10 ( 1 ) AND ( 2 ) OF REGULATION NO 1612/68 REFERS, IS THE RESULT OF A FACTUAL SITUATION, NAMELY THE PROVISION OF SUPPORT BY THE WORKER, WITHOUT THERE BEING ANY NEED TO DETERMINE THE REASONS FOR RECOURSE TO THE WORKER' S SUPPORT .

So as I understand it, a descendant who is over 21 and "non dependant" will not be exempt from r2r, but it is still possible to be over 21 and dependant. So premusably I have to argue the facts of the situation about dependancy financial, emotional etc. But if client wins the appeal, she gets her own benefits and then in normal benefit terms she is clearly non dependant. Will this circularity catch her out or am I just being paranoid?

I think you can be a dependant non dependant or non dependant dependant (as you will).

This is because non dependant is defined as "any person.....who normally resides with a claimant (or with whom a claimant normally resides).reg 3 IS regs.

So, interestingly, the question of dependency does not arise in relation to non dependency.

LOL! Donald Rumsfeld has got competition! Many thanks for your reply.

The Return of the Wet Blanket.

Argument may flounder after the Grand Chamber of the ECJ delivered its judgment in Yunying Jia v Migrationsverket Case C-1/05 (delivered 9 January 2007).

This judgment clarifies the meaning of "dependent on them". The case was decided in the context of self-employment but the principle extends to workers.

Para.43 "‘dependent on them’ means that members of the family of a Community national established in another Member State within the meaning of Article 43 EC need the material support of that Community national or his or her spouse in order to meet their essential needs in the State of origin of those family members or the State from which they have come at the time when they apply to join the Community national."

So was your client dependent upon the worker before leaving Poland?

Of course, if she was, this decision will be of great assistance.

Gary.

Thanks Gary, thats very helpful. I'm going to need more instructions from the client!

Thanks - hadn't seen this.

However, i have had a brief read of the judgment and opinion and think it can be argued that this won't impact on this case because of the repeal of Directive 73/148 & 68/360 and the advent of the new Directive.

Directive 73/148 as interpreted in Jia and particularly by the use of Article 4(3)(d) of Directive 68/360 makes the requirement for proof of previous support in the former member state universal on any family member. However, in the new directive this is only required of cases coming in Article 3(2)(a) (extended family members but not partners in a durable relationship). There is no such requirement for those coming within Article 2(2)(c)&(d) (ascending and descending dependants). See Article 8(5) which governs the formalities for Union Citizens in getting a registration certificate and Article 10(2)(e) governing non-EU family members and registration cards. It is arguable that the requirements now only affect a certain category of extended family members

The domestic regulations do not shed any light on this other than requiring that they qualify

Appreciate that this will require arguing but may provide some ammunition.

Well now its Friday afternoon and my brain hurts! I shall be needing some very stong coffee! Thanks again to all who have replied, I've clearly gots lots to work with now. I will post up a report on progress! Thanks again.

And it drags on. Just had the s of s submission and they are basically arguing that client is not a familiy member because she is over 21 (reg 7 of the 2006 regs) and that in any case she is not dependent becuase of the period of living with her b/f.

Have just made a submission on the basis that client does not have to be under 21 to qualify as a familiy member becuse the reg 7 gives an alternative i.e. direct dependent and EITHER under 21 OR dependant. Secondly that dependancy is factual consideration (lebon) and that a brief spell period of living with b/f does not negate this. Now we wait and see.