Family Members of EEA National

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  • #35435
    ssbrookes
    Participant

    I am dealing with a revision of the decision to terminate HB/CTB award back 3 years and need some help.
    Fathers status is as a EEA National with 4 non dependant children who have been given the right to reside with their father providing he doesn’t leave the country.
    Father went back to Pakistan to visit his ailing mother however he didn’t return for 3 years.
    Meanwhile his children found work and claimed HB/CTB.
    During a VOV the above situation was noted as a result the award was terminated back to date father left for Pakistan.

    Comments on this decision/ correct decision would be appreciated.

    #99362
    Anonymous
    Guest

    Can you provide a bit more information:

    What is the father’s nationality?
    What is the nationality of the four grown-up children?
    What are their ages?
    Were they issued with EEA residence documents/stamps, and if so when (in particular, was it before 30 April 2006)?
    How long were they all in the UK together before the father went to Pakistan?
    Did the father leave for Pakistan after 30 April 2006 (there is a reason for asking this, all will become clear)
    And most important of all, whose claim are you dealing with?

    #99363
    ssbrookes
    Participant

    Fathers natiionality……..Pakistani with Dutch passport

    Lived together from 19/03/05

    Children all Pakistani

    Ages (sorry only 3 non deps) 23, 21 & 19

    Eldest daughter passport showing righ to reside with father as EEA national daated 19/03/05

    latested documents for all 3 non deps dated 9/1/06 letter from Home Office giving right of to reside in UK with father who is an EEA national

    Father left for Pakistan 17/08/06 returning Jan 09

    Claim in daughters name from 18.08.06

    #99364
    Anonymous
    Guest

    Sorry to take so long coming back to you about this one.

    The key to this is establishing whether your claimant – the eldest daughter – had a right to reside during the time when she was on HB.

    We now know from the Upper Tribunal’s recent decisions on this point that the residence permit issued before 30/4/06 cannot confer a right of residence for any period after that date. Instead, we have to look at the person’s economic and family circumstances to see whether they still have a right to reside

    It appears that she was a family member of her Dutch father for a period after 30 April 2006, before he went abroad (assuming that he himself still had a right to reside up to the point at which he went abroad). This is important because it means that the claimant had a right to reside as an under-21 year old direct descendant under the terms of Directive 2004/38/EC, which came into force in the UK on 30/4/06. From the dates and ages, I am guessing she was 19 or 20 at this point. So lets assume she had a right to reside as a member of her father’s family up to the time when he left the UK.

    Article 12 of the Directive provides for a family member’s right of residence to be retained after the connection with the principal EU national has broken in some circumstances. Unfortunately, I don’t think this is one of them: a family member who is not an EEA national only retains his/her right of residence in the event of the principal EEA national’s departure from the host state if s/he is in education or is the parent of a child in education. It does not sound as if your claimant was either of those things. The Directive is, in relation to this particular issue, reproduced 100% faithfully in the UK Immigration (EEA) Regs 2006, so there is no loophole there, no scope for a more generous interpretation of the UK Regs.

    It therefore does not sound as if the claimant had a right to reside during her father’s prolonged absence from the UK.

    #99365
    ssbrookes
    Participant

    Many thanks for your reply albeit not what I was hoping to hear!
    The sister was looking after her 2 siblings one of was in full time education could there be any scope for entitlement to benefit taking that into account?

    #99366
    Anonymous
    Guest

    Only the parent comes within the strict terms of the Directive. This particular provision was included in the Directive in order to ensure that the legislation reflecvted the judgment of the European Court in the case of Baumbast. On an exact match for the facts in Baumbast, the EEA worker parent is absent from the UK, while the other parent remains here to look after children who are at school.

    There are currently some cases waiting for a ruling from the European Court on whether Baumbast is authority for a slightly more liberal approach – for example if the parent with care of the children is the same one who was previously working. This could take some years to resolve. If anyone has a desreving case for a bit of leeway, it is surely a claimant like yours who was not the biological paremt but found herself acting pretty much [i:7dd7ae6df3]in loco parentis[/i:7dd7ae6df3].

    There is one thing. I know that the PFA specialist at the DWP does not like me saying this at all, but you [u:7dd7ae6df3]could[/u:7dd7ae6df3] (I am not saying [i:7dd7ae6df3]should[/i:7dd7ae6df3], just [i:7dd7ae6df3]could[/i:7dd7ae6df3]) take the view that this is an unintended gap or “lacuna” in the Directive, and that it would be disproportionately pedantic to say that your claimant lost her right to reside on the technicality that she was the sister of the children at school and not their mother. See CIS/408/2006 for an example of a case where that was done. However, as the Court of Appeal pointed out in Kaczmarek recently, the Directive should normally be seen as a comprehensive consolidated catalogue of all possible rights of residence: it will be rare indeed for a member state to be so presumptuous as to suggest that the Council of Ministers accidentally left a gap. But as I say, you [i:7dd7ae6df3]could[/i:7dd7ae6df3] do that if you consider this to be a sufficiently compelling case.

    #99367
    ssbrookes
    Participant

    Thats very helpful and will certainly be a consideration in my decision.
    Your help and advice is very much appreciated.

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