The claimant appealed to the Court of Session (Slezak v Secretary of State) and this decision is reported as  AACR 21ws
Residence and presence conditions – right to reside – whether estranged child of EEA national who has left the UK entitled to income support
The appellant, a Polish citizen, arrived in the UK in 2013 aged 15 and attended school. The appellant’s father has never lived in the UK. Her mother joined the appellant in 2014 but subsequently returned to Poland. The appellant is estranged from both parents. In 2014 the appellant claimed income support (IS) which was refused on the basis that she had no “right to reside” and therefore was not entitled to make a claim. The appellant appealed to the First-Tier Tribunal (F-tT) and was successful on the basis that she was a child of an EEA national who had been employed in the UK and had established a right to reside in the UK. She was estranged from her parents and therefore entitled to claim IS. The Secretary of State appealed to the Upper Tribunal (Administrative Appeals Chamber) against that decision. The Upper Tribunal allowed the Secretary of State’s appeal and held that the appellant was covered by the exclusionary provisions of regulation 21AA(3) and accordingly had no right to obtain IS. The appellant appealed against that decision. The question before the Court of Session was whether the right to reside conferred by regulation 14(3) of the Immigration (European Economic Area) Regulations 2004/1003 was an excluded right for the purposes of regulation 21AA(3) of the Income Support (General) Regulations 1987/1967. The question turned on whether, in approving the EEA Regulations, Parliament intended to draw a relevant distinction for those purposes between family members of a primary right holder where the primary right holder remained in the UK or had left.
Held, allowing the appeal, that:
provided the appellant was able to establish habitual residence in the United Kingdom and satisfy the other eligibility criteria of the Income Support Regulations, she was entitled to IS;
the retained right of residence conferred by regulation 14(3) of the EEA Regulations is not an excluded right of residence for the purposes of regulation 21AA(3)(b)(ii) of the Income Support Regulations.