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EU national in education entitled to income support after parent left

30 January 2017

A Polish schoolgirl who remained in the United Kingdom, then aged 16, after her mother with whom she had been living returned to Poland, was entitled to claim income support while she remained in education as she had been before her mother's departure, the Inner House has ruled.

Three judges allowed an appeal by Sara Slezak against a decision of the Upper Tribunal confirming a refusal of her application for income support as she did not have the necessary right of residence under the  Immigration (European Economic Area) Regulations 2006.

Ms Slezak had come to the UK in 2013 when aged 15, to Newcastle and then Glasgow, where she went to school. Her mother joined her in Glasgow to seek work but returned to Poland in 2014. Her father had remained in Poland and she was now estranged from both parents. She claimed income support on the basis that she satisfied the habitual residence test and as the "direct descendent" of a qualified person who had ceased to be such and as continuing to attend an educational course such as she had been attending immediately before her mother ceased to be a qualified person, in terms of reg 10(3) of the regulations.

The Secretary of State argued that the appellant's approach would give her enhanced rights rather than retained rights, and would tend to encourage jobseekers to return to their country of origin whilst leaving their children behind.

Giving the opinion of the court, Lord Menzies, who sat with Lord Glennie and Lord Bracadale, said that the appellant fell within the definition of a “family member who has retained the right of residence” provided by reg 10(1) and (3), and it follows that she had the extended right of residence provided for by reg 14(3). The Upper Tribunal had applied the wrong provisions, ones which concerned current jobseekers or their family members. Contrary to the Secretary of State's argument, the appellant's right of residence was one under EU law and not simply UK law and she was therefore entitled to claim equal treatment with nationals of the UK in relation to social assistance.

It was "farfetched" to suggest that that interpretation would promote the breakup of families by encouraging parents who were jobseekers in the United Kingdom to leave their children behind in the UK merely so that they could receive income support; on the contrary, it was consistent with the principles of non‑discrimination and equality of treatment which were fundamental to EU law that children of EEA citizens who were estranged from their parents and left in the UK should be treated in the same way as British children would be treated in the same circumstances.

The appeal was allowed and the case remitted to the Upper Tribunal.

Click here to view the opinion of the court.

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