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Neutral Citation Number:
Reported Number:	R(IS)3/09
File Number:	CIS 1545 2007
Appellant:	Jeleniewicz v Secretary of State for Work and Pensions [2008] EWCA Civ 1163
Respondent:
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	23/10/2008
Date Added:	11/10/2007
Main Category:	European Union law
Main Subcategory:	free movement
Secondary Category:	Residence and presence conditions
Secondary Subcategory:	right to reside
Notes:	Residence and presence conditions – right to reside – whether indirect right as primary carer of child dependent on father – whether sufficient resources to avoid becoming a burden on the social assistance system The claimant was a Polish national. She entered the United Kingdom (UK) in February 2004 and worked as an au pair but was dismissed after she became pregnant. She gave birth to a daughter in August 2005. She was in receipt of income support from October 2005 until March 2006, when her entitlement was terminated following a decision that she did not have a right to reside in the UK. She appealed to an appeal tribunal, which allowed her appeal, holding that she had a right to reside in the UK under Directive 93/96/EEC (the Directive) and the Immigration (European Economic Area) Regulations 2000 (the 2000 Regulations) on the basis that she was the parent and primary carer of a child, who had a right to reside in the UK as the dependent child of the claimant’s former partner, who himself had a right to reside in the UK as a student from abroad pursuing a vocational training course in the UK. The Secretary of State appealed to the Commissioner, who set aside the tribunal’s decision, finding that the claimant had not shown that the father was a student at the material time or that the child was dependent on him. The claimant appealed to the Court of Appeal. Held, dismissing the appeal, that: 1. it is for the claimant to supply the information needed to determine whether the conditions of entitlement have been met (Kerr v Department for Social Development [2004] UKHL 23 (also reported as R 1/04 (SF)) cited) and that was also true in determining whether the conditions of entitlement have ceased to be satisfied (paragraph 30); 2. it was proper and reasonable for the Commissioner to proceed on the basis that the claimant’s legal representatives had supplied him with all the information relevant to questions that he had to decide and that the submissions made to him by counsel were based on the available information and were directed to the relevant provisions of the Directive and the 2000 Regulations (paragraph 31); 3. on the evidence adduced the Commissioner was not wrong in rejecting the contention that the claimant’s child was dependent on her former partner, for which purpose material support must be shown, which, though not necessarily financial, must provide for, or contribute towards, the basic necessities of life (paragraphs 32 and 33); 4. the Commissioner had considered the proportionality of depriving the claimant’s child of her right to reside and had been entitled on the evidence to reach the conclusion that the child would require public financial support for sufficient time and in sufficient amount to be a burden on the social assistance system (paragraph 34); 5. it was unnecessary for the Commissioner or the Court to consider whether, if her child had right to reside, the claimant would also have, as primary carer, an indirect right to reside for the purposes of claiming entitlement to income support (paragraph 36).
Decision(s) to Download:	R(IS) 3_09 bv.doc