The Right to Reside: The primary carer of a child in education

Tuesday 24 May 2016

In IP v Secretary of State for Work and Pensions (IS) [2015] UKUT 691 (AAC) CIS/2790/2012 (Judge Jacobs) the Upper Tribunal considered the position where the EEA worker was not the child’s biological parent.

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In IP v Secretary of State for Work and Pensions (IS) [2015] UKUT 691 (AAC) CIS/2790/2012 (Judge Jacobs) the Upper Tribunal considered the position where the EEA worker was not the child’s biological parent.

The claimant made a claim for income support on the basis that she had a derived right as a primary carer based on the right of a child of a worker (or former worker) who had been admitted into general education under Article 10(1)(a) of Regulation No 1612/68 (in force at the time). The child, S, had been in education in the UK since 2008. The claimant and her partner, who were both Latvian, but not married, had come to the UK in 2007. At the time of the claim, the mother had never worked in the UK. Her partner had worked in the UK but was not the biological father of S.

The claim for IS was refused. Applying the reasoning in ONAFTS v Ahmed (Case C-45/12) the Upper Tribunal upheld the refusal and dismissed the appeal:

“The key point is that S can only benefit from Article 12 if she is the child of someone who is or has been a worker. The only person who has been a worker is the claimant’s partner and she is not his child as he has no formal legal relationship with her mother.” (At para [8]).

COMMENT: The outcome would have been different if the claimant had been married to her partner as it has been held that a 'child' includes a 'step-child' for the purposes of the derived right under Article 10: see Alarape & Anor (Article 12, EC Reg 1612/68) Nigeria [2011] UKUT 413 (IAC), para 29.

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