R2R and Income Support

I was asked for advice from a client’s support worker about a right to reside issue.

Client came to UK from Finland 7 years ago, she has never worked in the UK and has been claiming Job Seekers Allowance for much of that time according to the support worker. She has recently had a child who is now 4 months old, the client remained on JSA throughout her pregnancy and the first few weeks after the birth but then on the advice of the Support Worker has applied for Income Support, she has not yet received a decision but has been sent a HRT form the complete.  The claimant is seperated from the father of the child and the Support Worker has been unable to establish any details about the father other than they were not married.  The Support Worker has contacted me as she is now concerned that the client does not have a right to reside as a retained worker to claim Income Support.

My initial thoughts were that this is correct, she does not retain worker status as she has never work so could only claim JSA as a work seeker along with CTC and CB. However I wondered if I had missed anything in relation to the caselaw around the client being a carer of dependant UK national and whether the client could gain a right to reside throught this.

I would get her to claim ibJSA and ask for backdating straightaway. Letter from support worker may help.

The IS could be allowed to continue in respect of a closed period- one potential argument is your client has a permanent right of residence due to 5 years jobseeking- that is ok under the UK regs from 30 April 2006 but not it seems under Directive.

Martin please could you explain more about r2r when client has done 5 years on JSA? Mine is Portuguese.
There is a new DMG which seems to say that a person cannot claim permanent residence if they have only been claiming JSA.
I would appreciate your thoughts and references.
Thanks
Nicolette

hi nicolette - is DMG Memo 34/12 the one you’re referring to? -

http://www.dwp.gov.uk/docs/m-34-12.pdf

Hi Nicolette:

1. From 30/04/2006 then a jobseeker is a “qualified person”. This is because they are so defined in Reg 6(1)(a) of the Immigration (European Economic Area) Regulations 2006 (SI 2006 No. 1003) (note that under the predecessor regulations a jobseeker was not a qualified person).

2. Also from that date, a jobseeker has a right to reside in the UK- see Reg 14(1).

3. Under Reg 15(1) a person who resides “in accordance with” these Regulations for 5 years obtains a permanent right to reside.

4. Nothing in any of the amending regulations has changed the fact that from 30/04/2006 a jobseeker is residing in accordance with the 2006 Regulations.

5. The regs do make clear (now) what types of residence do not count towards obtaining a permanent right of residence- see the new paragraph (1A) in Reg 5, inserted by SI 2012 No. 1547. So if a jobseeker right of residence was to be excluded they would state that.

6. Of course, if someone has been claiming JSA for 5 years and has not in fact obtained a job in that time, one question may be: were they really a jobseeker throughout that time? Did they have a genuine chance of being engaged and were they looking for work etc (see the jobseeker definition in Reg 6(4)).

7. Note that:

a) it appears that following Ziolkowski that periods with only a jobseeker right of residence will not be sufficient to obtain a right of residence under the Directive 2004/38- but that is ok as here we are doing it under the UK regs.

b) the above point, coupled with fact that UK regs did not provide a right of residence to jobseekers before 30/04/2006 means that only periods of rights of residence as a jobseeker on or after that datecan count.

c) SOME SPECULATION…. I think that eventually the Court of Justice of the EU will take a very liberal approach to retaining status as a worker (eg, person works a year, then is not looking for work for 9 months and then looks for work—- they retain status). I think they will probably allow for gaps when not doing any economic activity that are at least analogous with the allowable absences from the UK in terms of retaining status. See for example Orfanopoulos- is a person who goes to prison for several years and looks for work on release does not lose status, how could it be that a person who goes fishing all summer and doesn’t sign on after working would lose their status? If the Court of Justice does that then the problem of a jobseeker right of residence not counting will diminish for a lot of people as we will see they are actually people retaining worker status.

8. The DMG Memo Ros linked to does not state a jobseeker right of residence cannot count towards the 5 year period. This one: http://www.dwp.gov.uk/docs/m-18-12.pdf is specifically about Ziolkowski -as such it deals with rights under EU law so its statement that A8/A2 nationals wishing to rely on periods before accession must have been workers etc in that period is not to be taken as saying that for an EEA national post 30/04/2006 the UK regs do not allow a person to rely on jobseeker rights.

Hope that helps.

M

Many thanks Martin. I am digesting hopefully. Nicolette

There is a welfare rights bulletin article which deals with permanent residence generally that might be of interest: http://www.cpag.org.uk/content/permanent-residence-settled.

In the original poster’s case then-

I also think it would be really worth while to check out the issue of what the father of the kid does.

Finally, I would reiterate the fact that if she can she should go back on JSA as that will be much easier.

On the point about being the carer of a dependent UK national, you have said nothing to suggest that the child does in fact have British nationality. If the father is British or was settled at the date of birth, then the child will be British automatically if they were married. If not, the child will only be British if the father’s name is on the birth certificate or if paternity is proved some other way, eg DNA testing. That also assumes that the child was born after April 2006, before which the child of an unmarried couple could only take the mother’s nationality.