Hi, can anyone help with the following case ? My knowledge on EC law is not very good – working hard to get my head round this area. It’s too complex!

Cl is a Portuguese national , 18 years old and in full-time college . She first came to the U.K in December 2005 . She joined her mother and siblings who are also EEA nationals . The children are in full-time education
Mother died in July 2007 - during her period in U.K she worked in various jobs and was working until her death .
My client had to take responsibility for the care of her two siblings (under 16 ) . She claimed GA, CB , CTC and HB/CTB which have been awarded and is currently receiving . She claimed IS but was refused on the R2R as she is not a qualified person as prescribed in Reg 6 Immigration (EEA) Regs 2006
Decision was challenged and was before a tribunal two weeks ago. My main argument was that my cl should retain her right of residence as she is a family member who acquired a right of residence in pursuant to Article 12 Directive 2004/38.
At the hearing - the Chair pointed out that none of the paragraphs in Article 12 will assist my case – this is because the mother did not have a permanent right of residence . He gave me CIS/3444/2006 to consider . Hearing was adjourned so that I could consider this further and also for DWP to respond to my submission.
After considering the commissioner’s decision. I feel that I don’t have a chance as the decision is very robust . I understand that there are similar decisions in CIS /1127/2007 and CIS /623 /2007 which were also considered by Commisioner Rowland. The decisions are quite clear that a person does not have a right of residence on the basis of pursuing education .
I don’t know where to go from here . It seems that I cannot rely on Article 12 of Directive 2004/38 anymore .
I would appreciate any views and comments on this . Please let me know if there is any other EC law that will assist my case.

Hi,

I really think that on the facts of the case you describe you could still argue it through and win even before a tribunal. This clients circumstances are very different than those in the cases considered by Comm Rowland.

ALSO:
The policy intention behind the R to R test is to encourage people not to come to the UK to live of social security benefits and to put pressure on those who are here to leave (as accepted by CA in Abdirahman). It can't be the case that the provisions setting up the test also catch people who (1) had no choice about coming here in first place (as they were minors when they came) (2) should disrupt the lives of recently bereaved children and also disrupt their studies in such a dramatic way (the younger two must be pretty much doing their GCSE's no?). If that is the effect of the legislation then it is not proportionate way of achieving the legitimate aim of encouraging people to leave etc etc.

See also CIS/408/2006: one where Comm. Rowland actually finds it would be ridiculous not to say a particular claimant had an article 18 R to R.

Failing that: if Comm. Rowland's cases cannot be distinguished then they are wrongly decided. You can't win at Appeal but should win at Commissioner.

Don't despair: the facts you describe sound excellent and arguable to me.

While this is not my strong suit either why does reg 10(3) of The Immigration (European Economic Area) Regulations 2006 not apply to her?

Agree with Martin - but my reading of your facts goes like this....

Mum (deceased) was a worker and therefore a "qualified person" under reg 6 (1)(b) at the time of her death.

Your client - the 18 year old daughter of the deceased - is a "family member who has retained the right of residence" under reg 10 (3)(a) and (b) - though I'm assuming she was in f/t education immediately prior to mum's death?

In any event, the younger siblings would meet those conditions and your client could be argued to be "the parent with actual custody" of a child who satisfies the conditions of reg 10 (3). "Parent" must surely be read to mean "parent or legal guardian" - and your client has received GA for her siblings.....

Your client therefore has RTR under reg 14 (3).

Or have I missed something?

My thinking exactly. I was concerned that this was just worryingly too simple.

Hmmmmm..... silly me. Agree that a far simpler method of sorting this out is to rely on Reg 10(3).

Hi there,

Thanks everyone for your responses.

Past caring - you are correct with the facts and yes this legislation was also quoted in my submission along with Directive 2004/38 - perhaps I should not have mentioned this at all . Anyway, I think I have learnt this .
It seems as though the chair overlooked this legislation and was giving more weight to the commissioners decision - CIS/3444/2006. I had a feeling that he wasn't right and that is why I asked your views .

However, there has been further developments with the case and I have good news. I had a call from the Appeal officer -IS section yesterday and guess what , they have considered my submission and are going to award Income Support in accordance with Reg 10 (3)Immigration (EEA) Regulations 2006.

Thanks once again for your help