Hello

The client lived with her adult son in holland where they both claimed benefits.

Both my client ( a dutch national)and her son (also a dutch national) came to the Uk in 2005.

The client's son came to the uk to work and he supported his mother. The client is incapacitated due to a back injury. Since 2005 the client's son has been working although he is now claiming JSA.

The client tired to claim IS and was refused as she failed the RTR test.

Given that our client is a "family member" (dependent direct relative in the ascending line) rather than an "extended family member" under the 2006 regs does the word "dependent" in regulation 7 mean:

1)dependent in the UK, or
2)dependent in Holland or
3)Dependent in both?

Thank you for your help

In my view, the diffeences in wording between Reg 7 and Reg 8 (which stipulates dependency in the home country) at least allow for argument. The difference must be deliberate, and you wonder why. I suspect that the "extended family member" rules generally are one of the very few areas where our domestic regulations are more generous than Directive 2004/38, which does not include this category at all.

Thank you for your reply. Much appreciated!

My thoughts are that if dependent in reg7 and reg 8 has the same meaning in both provisions then the additional requirements of when and where the family member must show dependence in regulation 8 would be redundant. If that is the case you have to wonder why these requirements were put in at all.

I suppose the difference in wording does, as adriane suggests, provide some wriggle room. However, it should be borne in mind that the ECJ in Jia v Migrationswerk decided that dependency was denoted by the need for support in the country of origin. Whilst it is the case that Jia dealt with the old 73/148 directive, it's probably a bit of a stretch to argue the the concept of dependency took on a different or additional meaning between the former and present directives.

Was your client disallowed IS on the basis of not being a dependent direct relative in the ascending line? It seems unlikely on those facts. It sounds like she is dependent in the UK and was dependent in Holland as well. So the claim has probably been refused either because the DM wasn't aware of the family situation, hasn't taken into account the family member provisions in the EEA regs or they may have found that the son is only a workseeker and doesn't retain his worker status?

And your query has me wondering if someone could be a direct relative in the ascending line but not dependent. They wouldn't come within the family member definition in Reg 7 but could they then qualify under Reg 8 if the dependency test is different? Of course they could always argue they were members of the household or needed the personal care of the EEA national but it's an interesting point although probably an unlikely factual situation. The problem with extended family member is that is they aren't treated as a family member (with the inherent R2R that family member status gives) unless they have been granted the relevant document in 7(3). And that seems to be in keeping with the Directive as the duty upon the state towards family members who don't come within Art 2(2) is to "facilitate entry and residence" which isn't necessarily the same as granting a R2R.

Mon 12-May-08 09:41 AM by Fosco

Thank you again for your reply, it was very though provoking.

The client believed she was entitled to IS by virtue of her disability and so i dont think the DWP considered the dependency issue wrt the right to reside.

That aside my concern is that because both the client and her son were on benefits in Holland before coming to the UK, if the interpretation of dependent is the same as in Jia the client will struggle to show she was dependent in the country from which she came and will therefore struggle to satisfy the rtr test.

Whilst it is possible that dependence can be mean more than merely financial dependence it could prove difficult for the client if there isnt that financial relationship.

Commissioner Jacobs is exploring this very question as we speak in CIS/2100/2007. He's debating either an oral or possibly referral to ECJ to see whether the evidential requirements set out in Chen and or Lebon still stand.

Under the old test you'd need to show dependence in country of origin but our side is saying that's not correct.

CPAG have instructed Counsel, final subs went in mid April so there should be some movement soon.

Our side won, my appellant in very similar circ's Comm'r Jacobs finds a very arguable case for dependant direcy ascending line etc, but referred it back to tribunal for the dependence to be tested.

Basically says that Lebon still rules, i.e dependance in a particular state is factual there and then.

Dependent in the UK will do.