This case involves polish national entering UK in April08 and registering her employment on the Workers Registration Scheme. She stopped working in December08, but did not notify the Home Office. She has had only one temporary job since then but only for two weeks. She is now 5 months pregnant and living with another A8 national, who entered the country 3 years ago, but he appears to have 'lost' all paperwork and passport. He works, but is not registered with the Home Office, nor does he have an employer.

She wants to make a claim for Job Seekers Allowance.

I understand all EEA, and Swiss nationals, are free to enter and live in the United Kingdom without the need to apply for the Home Office’s permission, and they must be able to support themselves ‘without undue burden on public funds’, but the meaning of this particular phrase doesn't seem clear if this will impact on their claim. Does anyone have any knowledge or experience as to what ‘without undue burden on public funds’ actually refers to?

burden upon the state means she cannot claim income support

In addition A8 nationals must have been in registered work for more than 12 months before they can get JSA

Therefore she cannot get any benefits.

How does he "work" if he does not have an employer ?

Thanks for the response. I think I had already figured it out as I was typing last night, but just to answer your question he works cash in hand for different people - so could be classed as self employed? I will need to get further information about this for him though, as I don't want him to face any penalties for not registering, or paying any returns, by the Inland Revenue.

In effect, he would be better off claiming for the both of them if he could get his paperwork sorted out, as he has been working for over 12 months. I've advised them to try and get certificates under the Worker Registration Scheme, for each job they have had. Also she has got time to 'top up' her working period, if she can find further employment before baby is born.

But your quite right in stating that for any A8 national it's the 12 month worker rule that counts and so no entitlement at all.

Thanks again.

The description of his work sounds like self employment. I had a client who kept no records of her self employment for over a year and then had to sort it out for the tax man. I contacted taxaid for her and they helped her sort out the tax returns, NI exemption application etc., and she said the chap she saw - Harry - was a very nice man! So it could be worth contacting them. As a family member of a self employed person she could claim JSA but is he doing ore than 24 hours a week?

If he is not self employed but employed he will not be able to make it legal by retrospectively registering it. However the naughty work probably makes him self sufficient so as long as they don't claim any social assistance (most means tested benefits) then they could get CB & CTC when the baby is born. They are better off if he registers it though - they can claim everything once he does

I would have thought that the self-employed route is the way to go - see the recent discussion of how Article 43 describes the required behaviour of a self-employed person, rather than any requirement to be self supporting.

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=103&topic_id=7059&mesg_id=7059&page=

Although Article 43 does not refer to the lawfulness of the working arrangements (ie the payment of tax and NI as a self-employed person), I think the situation as described might strain the liberalism of the JC+ to breaking point, if claim was pushed too hard, on this basis. Irrespective of possible rescue via a subsequent tribunal etc, much better for the chap to get his self-employed house in order, maybe along the lines that Damian suggests.

If he is self-employed, he may be able to claim IBJSA himself and partner as a top up (see the abovementioned thread for arguably supportive case law). As has been mentioned, there could be alternative access to benefits from her, as a family member of a self employed person, subject to his hours and pay.

Whether it would be possible to to alternatively argue they are sufficiently 'self sufficient' to attain RTR is interesting. Damian refers to CB and CTC, but what about HB/CTB? Reg 10(3A) of the HB Regs does not exclude self sufficient persons, and although para 4 of the same reg does not specifically include them, Reg 4 is not a closed list. Maybe I have got it all wrong, but I wonder if you could be sufficiently self sufficient to avoid IS/IBJSA etc, and yet still be able to access HB/CTB? Thoughts?

Steve

I can't remember which case it was, but I do remember the ECJ looking at the payment of NI contributions as a benchmark of the legality of a person's employment...

I thought that HB was 'social assistance' so claiming it meant not being self sufficient.Can't find the definition of social assistance now. Does anyone know where it can be found?

The issue is considered in CH/3314/2005, CIS/3315/2005. Commissioner Rowland concludes that it is possible not to be a burden on the social assistance scheme and get some HB but that the claimant would have to be able to manage to pay the rent without HB if they had to. Its in para 29.

Very useful, but weren't these the decisions that Mr Rowland later decided were incorrect? Maybe I am digressing!

Steve