Hi, hoping for some assistance here. Portuguese client with two children in full time education. Client came to UK as a worker in 1996. She was employed the following day. She met her future husband and fell pregnant several months later. First child born 1997. She returned to work and worked in southern England until 2002 when she had another baby, she also married her English husband. She moved to Lincs in Sept 02 and took up employment again until she was dismissed April 07.She separated from hubby Nov 06. She applied for I.S in April 07 following dismissal, this was on the advice of the local JC+ office but has been turned down due to failing R2R test. She has since looked tirelessly for work, applying for lots of jobs to no avail, she has registered with agencies and the Jobcentre have organised an English course to help with her written English.

I took some advice from an Immigration solicitor who said the decision was wrong,that she should have been treated as a work seeker. He also advised that she claim JSA. I requested urgent reconsideration but this failed. I rang today to discuss it and the DM's office said client has to be registered with Jobcentre and claim JSA as a lone parent and also look for work. Even giving the length of time client has been in UK she apparently loses her R2R and should have claimed JSA. As she was given wrong advice she was urged to claim JSA and ask for backdating.She said JC's are giving out really bad advice to EEA nationals.

I'm trying to work out quickest way to solve this for client as now her HB, CTB and CTC have all ceased due to failing R2R test. Should we appeal R2R decision, if so on what grounds? Can i go down the route that she has R2R as kids in f/t education? Any regs to quote would be fab please.

Do appeal the IS decision but best advice for your client is to claim JSA immediately. This is on basis that all her R to R arguments for IS are a little tentative and may not ultimately succeed. Also if she is lookin assiduously for work then the JSA signing on regime should not be too much of a burden.

As far as appealing the IS decision goes then as far as I can see your arguments would be as follows:

1. She has a right to reside as a worker who has retained their worker status under Reg 6(2)(b)(i) of the I(EEA) Regs 2006 (SI 2006/1003). The problem here is that this rule requires a person to "register as a jobseeker with the relevant employment office". It is arguable that the concession by the DWP in CIS/3115/2005 (or is it 3116?) means that because the DWP have failed to provide a way for someone to register as a jobseeker but claim IS she should be treated as having met this condition (or arguable instead that she has in fact met the condition because the claim to IS is made to the JCP and presumably at her work focussed interview she said she wanted a job).

2. May be worth looking at whether she in fact now has a permanent right to reside under Reg 15 of the 2006 regs- 5 years lawful residence under those or the 2000 predecessor regs. The issue here will be whether you can spot a 5 year period post 2000 where she has worked continuously. Breaks would have to be accounted for in terms of facts showing she was workseeking or still employed etc during any breaks. Apparently (from speaking with various DWP DMs on this issue) the DWP seem to think a R to R under Reg 15 cannot arise unless the client has a home office residence permit- this is wrong given the fact that residence permits simply recognise and do not create a right to reside (see Raulin etc.

3. She can argue a right to reside pursuant to Baumbast due to kids being in school etc. and her having been a worker and now being their main carer. May be problems here if the kids are in fact UK citizens....

4. If all the above arguments fail she can argue that she is precisely the sort of person to whom Comm. Rowland was referring in CIS/3115/2006 when he talked about cases where it would be disproportionate to apply the R to R test.

Good luck.

Martin

Thank you so very much Martin. I'll let you know the outcome.

Lisa

I wondered if anyone haw a copy of CIS/3115/2006 they could send me or a link to it on line? I can't seem to find it and would be very grateful,
many thanks

Caroline

My mistake. It is CH/3314/2005 and (for same claimant) CIS/3315/2005.

Sorry for the bad citation was in a hurry....

Link to the decision from here:

http://www.osscsc.gov.uk/aspx/view.aspx?id=2091

lolo many thanks!
C

I would use the Bambaust R2R argument based on fact that the child born in 1997 will be in school and the R2R should be conferred on her.

I am also wondering if in cases like this we can make an argument based on fact that child born in Britain is British and has a R2R so this is conferred on mother. I also wonder about the child's human rights being affected by this decision as there is a British father and the child should be entitled to have contact with father (if you follow the decision to full conclusion it could be argued that mother no longer able to stay in the country and father and child would have their relationship interfered with). Possibly a bit off beam and obscure but I think it's worth trying (and will be in an appeal letter I write later today!)

Sorry - since 1983 a child born in the UK is only British if one of the parents (or mother, if not married) is either British or has settled status which I don't think your client has.

I have a Polish client who is married to a British Citizen, although nopw separated, and they had a child 6 months ago. Presumably that child is classed as a British Citizen. She has been here for 2 years and previously been self-employed and has been told no R2R.