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Refused Derivative Right as told count as a "Jobseeker"?
What is the issue?

Under Regulation 16(1) of the Immigration (EEA) Regs 2016  a person cannot have a derivative right to reside if they also count as an "exempt person".

"Exempt person" means (Reg 16(7)(c))  "a person—
(i)who has a right to reside under another provision of these Regulations;
(ii)who has the right of abode under section 2 of the 1971 Act(1);
(iii)to whom section 8 of the 1971 Act(2), or an order made under subsection (2) of that section(3), applies; or
(iv)who has indefinite leave to enter or remain in the United Kingdom."

The problem is in (i) - having a right to reside, where the person's only right to reside is as a "jobseeker" - because if the person also counts as a jobseeker they cannot have this derivative right to reside - but a "jobseeker" cannot claim Universal Credit....

However the definition of jobseeker in Regulation 6 of the Immigration (EEA) Regs 2016 is:

 "an EEA national who satisfies conditions A, B and, where relevant, C.....
(5) Condition A is that the person—
(a)entered the United Kingdom in order to seek employment; or
(b)is present in the United Kingdom seeking employment, immediately after enjoying a right to reside under sub-paragraphs (b) to (e) of the definition of qualified person in paragraph (1) (disregarding any period during which worker status was retained pursuant to paragraph (2)(b) or (c)).
(6) Condition B is that the person provides evidence of seeking employment and having a genuine chance of being engaged."
(NB Condition C is where person has previously been outside the UK).

So if the claimant isn't looking for work immediately after entering the UK, or following having been:
 "(b)a worker; (c)a self-employed person; (d)a self-sufficient person; or (e)a student " then they won't count as a jobseeker and so can claim UC under the derivative right to reside rules, where these apply.

NOTE: There has been a First Tier Tribunal (which does not have persuasive powers over other tribunal decisions) which found that a claimant in this position DID have the right to reside.
The argument put forward was that to refuse benefits would contravene Article 10 of Regulation 492/2011 in particular that it would not "encourage all efforts to enable such children to attend these courses under the best possible conditions". So it would be worth a try.











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