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EEA Nationals: Child in Education
These derived rights come from the fact that a child of an EEA migrant worker gained the right under EU law to be educated in the member state in which they reside and in which their parent has worked.

So when the child is “exercising their treaty rights” to be educated, ie they are in education, they themselves^ derive a Right to Reside through their right to be educated, and their primary carer “derives a Right to Reside” as the child/young person needs them to stay with them in the UK to enable them to stay in that education.

^Scroll to the end for the situation of a young person in education who cannot live with their parent(s).

What if the child is a British citizen?
Because a child who is a British citizen does not need to exercise treaty rights to be educated in the UK, these rules do NOT apply where the child is a British citizen. 

The Criteria

Regulation 16 of the Immigration (European Economic Area) Regulations 2016 state that a person can derive the Right to Reside – and thereby claim benefits in the UK – if:

  • They are the primary carer# of a child under the age of 18, and

  • That child is currently in compulsory education (not including nursery education but including reception class, even if the child has entered before age 5), and

  • That child is the child (or legal step-child) of an EEA National (could be either the primary carer or the other parent), and

  • That child resided in the UK at the same time that their EEA national parent (or legal step-parent) was a worker## in the UK, and

  • This common period was 31st December 2020.

  • That child would be unable to continue their education in the UK if the primary carer# had to leave the UK.

DWP Guidance on these regulations here, and in DMG memo 21/12 here

Home Office Guidance on Derivative Rights here. 


 
Someone may have a derivative residence card to prove that they have the Right to Reside through this route. It is not a requirement but can nevertheless save time and argument. 

#Who counts as a 'primary carer'?

'Primary carer' means the person with main responsibility for the child, (or a person who shares responsibility equally with another person with no Right to Reside and no Right to Remain in the UK). AND they only count as a primary carer if they are the 'direct relative' (parent or grandparent, or adoptive parent, or step parent by marriage) or legal guardian of the child. 

##Who counts as an EEA 'worker'?

'Worker' in this context does not include self-employment nor “retained worker status”- they have to have actually been employed in the UK, in genuine and effective work, for a period (not specified) while the child was also in the UK, and this common period has to be before 31st December 2020.

NOTE: Where a A8, A2 or Croatian National are refused UC because the period of work they want to rely on was unauthorised or unregistered they should seek advice as various case law has questioned this approach.
The A8 states: Czech republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovenia, Slovakia and the A2 states: Bulgaria & Romania. 
More questions and answers

What if the EEA National "working" parent is no longer in the UK?

The right to education is not lost if the EEA national parent - that the child is deriving their right to education from - (or legal step-parent) leaves the UK or dies.

(Texeira v LB Lambeth)


What if the child is still in education beyond their 18th birthday?

Then their right to be educated in the UK remains until they have completed their education - including higher education (continuous period).

But they are no longer seem as needing a primary carer unless they continue 'to need the presence and care of that parent in order to be able to pursue and complete his or her education.
(Texeira v LB Lambeth)

Does this only cover education up to A level/ NVQ level 3?

No it can included further and higher education (continuous period).

Does the child have to have been living in the same accommodation as their working EEA national parent?

No, the rules only say they have to have both been in the UK while the EEA national parent (or legal step-parent) was working.

Does the child have to have been in education at the same time as their EEA national parent was working in the UK?

No, only that the child had to have been "installed in the UK" while their parent was an EEA worker in the UK. The education could have started later.
EUECJ C-115/15.


What if the child's other parent (ie not their primary carer) could look after them instead?

The Home Office Guidance on Derivative Rights states that, in considering whether the child would have to leave the UK, consideration should be given to whether there are alternative caring arrangements in the UK. The fact that they might be unwilling to do so is irrelevant - “A lack of financial resources, a lack of willingness to assume caring responsibilities, or an assertion that a person would need to alter their working pattern would not, by itself, be a sufficient basis for a person to claim they are unable to care for the relevant person.” However the alternative carer has to be suitable - ie not pose any risk - and it is a matter of what would actually happen in practice if the primary carer left the UK : "whether in light of the level of dependency, the removal of the applicant would compel the child to leave the UK  even though there is another person who, in principle, could care for the child in the UK if the applicant departed."

Who benefits from this rule?

This rule mainly benefits 'Protected' EEA National parents who have been working but then have to finish work and are no longer counted as a 'worker' for benefit purposes.

It also benefits single parents whose former partner is an EEA National who is / was working in the UK and they are unable to claim benefits in their own right.

And young people who are still in education but unable to live with their parent/s.

Can this rule be applied to a parent and primary carer who is not an EEA National?

Yes if they have Settled Status, or Pre-Settled Status (or it is before 30th June and they can apply to the EU Settlement Scheme). As long as their partner / ex-partner is the parent (or legal step-parent) of the child who is in education, and they are / were an EEA migrant worker in the UK for a period when that child was also in the UK and this common period is before 31st December 2020. The EU treaty rights that can be given to the parent and primary carer of the child overrule the 'no recourse to public funds' rule.


Can a family member of an EEA National who has the right to reside through this route "piggyback" on them and so acquire Right to Reside status?

No.

Does time with derivative rights count towards permanent residence status?

No.

Rights of an EEA national child in education

A 16 or 17 year old can claim Universal Credit in their own right in certain circumstances where they have no parent (or person acting as their parent) or where there are valid reasons why they cannot live with their parent. Click here for more information.


But as an EEA National they will also have to have a "right to reside".

A young person in non-advanced education has the right to reside in the UK (and thereby can claim HB) if they:
  • Have permanent right of residence, or 
  • Are the family member of an EEA national, or 
  • Have "derivative rights" as a child/young person in education in the UK AND they are the child (or legal step-child) of an EEA national who has worked (not self employed) in the UK while they were both in the UK for "some common period" (not defined).

Derivative rights

Where the young person is the child (or legal step-child) of an EEA national, under Regulation 16 (3) of the Immigration  (European Economic Area) Regulations 2016 , they will have a derivative right to reside if they had lived in the UK for some common period while either of their parents (or legal step-parent) was an EEA national working (but not self employed) in the UK, and if they are currently in non-advanced education.

Note that although these regulations do not specify that the child has to be under 18 - as is the case with the primary carer's derivative rights under 16(2) - they might be refused post 18 because of the Texeira v LB Lambeth caselaw (see "What if the child is still in education post 18?) above.

Some Examples

Example 1:

Maria is Italian. She came to the UK eighteen months ago with her husband Georgio, also Italian, and their 3 year old son Bernardo. Georgio had worked in the UK since arriving. Maria has never worked in the UK. Sadly Georgio died last month. Because Bernardo is now in primary school, and because his father was working in the UK as an EEA national while Bernardo was living in the UK, Bernardo derives from his father the right to reside to enable him to be educated in the UK, and Maria derives a right to reside from Bernardo as his primary carer under EEA reg 16, so is entitled to claim benefits.
.

Example 2:

Mirela came to the UK from Romania in 2007. She immediately began Authorised Employment and stayed working apart from a brief period in 2009 when she had her first child, Oana. In 2014 she lost her job and signed on as a jobseeker.After 6 months on JSA and Housing Benefit the Job Centre told Mirela she did not have a right to reside any more, but when she explained that Oana had started primary school this decision was overturned. This is because Oana was in the UK while her Mum was working in the UK and therefore had gained the right to be educated and as she is currently exercising this right, as her primary carer, Mirela gains the derivative right to reside.
.

Example 3:

Bogdan and Isolda are Polish. They have been running their own deli since arriving in the UK in 2010. Sadly economic reasons forced the shop’s closure and they are both out of work and looking for benefits. They have six year old twins. Because neither parent counts as an EEA “worker”, as they were only in self-employment, their children do not gain the right under EU to be educated in the UK so they cannot derive a right to reside from their children being in education in the UK.


Example 4:

Hannah, 38, is German but has lived in the UK since she was sixteen. When she was 23 she met Bob, a British citizen and they had a son, Fred, who is now fifteen. Hannah has not worked since Fred was born. Bob and Hannah have split up so Hannah has tried to claim Universal Credit but been refused because Fred - being born in the UK to a British citizen is also a British citizen and does not need to exercise his treaty rights to be educated in the UK and therefore there is no right to be derived. Hannah needs to consider whether she has a different status.
.

Example 5:

Sylvie is French and Joe is Jamaican. They entered the UK 12 months ago with their 5 year old daughter, Patsy who was born in France. They have recently split up, and Sylvie has returned to France leaving Patsy with Joe. Sylvie had worked for the whole period they were living in the UK. Joe has 'no recourse to public funds' but is able to claim Universal Credit as the parent and primary carer of a child of an EEA migrant worker so that she (Patsy) can continue her education. (as long as Joe passes stage 2 of the habitual residence test).
.

Refused Derivative Right as told count as a "Jobseeker"?
“You can’t have a derivative right when you count as a jobseeker”

The DWP often refuse UC on the grounds that a claimant cannot have a derivative right to reside if they also count as a ‘jobseeker’. Regulation 16(1) of The Immigration (EEA) Regulations 2016 says:
"16.—(1) A person has a derivative right to reside during any period in which the person—
(a)is not an exempt person;  "
and the definition of exempt person includes:
 " a person—
(i)who has a right to reside under another provision of these Regulations; " (Reg 7 of the same regulations).


Why is this a problem?

This is a difficult situation for claimants because the Regulations state that  EEA Nationals who are ‘jobseekers’ can’t claim UC.....
(Reg 9 (3)(aa) of the Universal Credit Regulations 2013).

NOTE: 'Jobseeker' status is not to be confused with those EEA nationals who may be unemployed but who have 'retained worker status'  rather than just 'jobseeker' status – these EEA Nationals can claim UC.

BUT not everyone who the DWP says is a ‘jobseeker’, actually is....

An EEA National won’t count as a ‘jobseeker’ unless they fit the precise definition of ‘jobseeker’.

To be a ‘jobseeker’ under the EEA Regulations, a person has to:
  • Have entered UK in order to find work, and
  • Be actually looking for /available for work, and
  • Have a “genuine chance of being engaged”, and
  • Not exhausted the 91 days of having a Right to Reside as a ‘jobseeker’.

So where a claimant with a ‘derivative’ right to reside has been refused UC because the DWP say that their ‘status’ as ‘jobseeker’ prevents it, then they will need to argue that they do not fit the definition of being a ‘jobseeker’ because either:
1. They did not enter the UK to find work – they came for a different reason, or
2. They are not currently looking for work*#, or
3. They do not have a genuine chance of finding work – explaining why, or
4. They can show evidence that they have spent 91 days looking for work since coming to the UK.

* If they are expected to look for work in order to receive UC - ie their claimant commitment includes work search - then making this statement will mean they will face a sanction when they do go onto UC- a Catch 22.

#What if they aren't looking for work - but the DWP say they could?

We have heard that the DWP have sometimes argued that a person could be a jobseeker even though they are not looking for work, because they could look for work. But it is what the claimant is actually doing, not what they could do, that counts.

What if the claimant actually is a jobseeker?

There is an argument that some commentators have suggested - but we do not know if this will work - but worth trying.

The argument is that the intention of the regulations is that a derivative right to reside is that it is a 'last resort' when they have no other 'right to reside' that enables them to claim benefits. And that the intention can never have been to deprive the claimant and her/his family.
It is national law (The Immigration (EEA) Regulations 2016) which states that an “exempt person” cannot have a derivative right - but the principles protecting the rights of children of EEA national workers are written in EU law-  in Directive 2004/38/EC  and in the general law on the Rights of Free Movement - Reg 492/2011*- and this over-rides national legislation.

*Article 10 of Reg 492/2011 says the child is to be educated under the same conditions as the child of a host state national and that the host state should ensure this happens under the best possible conditions. 

Meanwhile, while challenging the DWP on these points...

Don't forget that of the claimant has been in the UK for a continuous period of 5 years (regardless of what doing - unless a criminal) they can apply for settled status which will give them a right to claim benefits including UC, once granted. Check this page.

As a child in education

Who has this status and for how long?

As the primary carer of a child in education

Who has this status and for how long? 






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