Romanian lady with child married to UK citizen

Hi, My client is a Romanian lady with a one year old child married to a UK citizen. She want to leave him. Her entry permit states restrictive employment (which ends in January) She has never worked.

If she leaves him can she claim JSA

If she was married to a European she would have an R2R and be eligible until divorce.

She might have a right to reside if her husband has worked in another EEA state.  Have a look at the current edition of CPAG, page 1604.

had a romanian client last year with a 5yr old child who had come to the UK with her Italian partner. They had lived together in Italy for approx 6yrs.  She had made a claim for JSA and was refused but after requesting a reconsideration as she was responsible for a child whose father was an EEA citizen they granted JSA and HB/CTB was paid as well

The problem with EEA citizens married to British nationals is that if the EEA citizen has never worked in the UK then they and their spouses cannot take advantage of the provisions of EC Directive 2004/38 if the British national (the position of British nationals with dual citizenship is more complex) has never worked in another EEA state.  That is because British nationals in this position are not EEA nationals for the purposes of the Directive.  So spouses of British nationals in this position will usually (I say usually, as some will be jobseekers for the purposes of the Directive) have to derive their right to reside from another source.

Accession (IWR) Regs 2006:

‘“Accession State national subject to worker authorisation”
2. ...
(6) A national of Bulgaria or Romania is not an accession State national subject to
worker authorisation during any period in which he is the spouse or civil partner of a
national of the United Kingdom or of a person settled in the United Kingdom.’

So as long as remains married, still exempt from worker authorisation and can claim JSA on basis of being someone with jobseeker status. See handbook page 1593

your wonderful… thanks

Regulation 6(4) of the 2006 Immigration Regulations is in the following terms:

“For the purpose of paragraph (1)(a), “jobseeker” means a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged”.

It is the phrase “means a person who enters the United Kingdom in order to seek employment” that, at first sight, appears troublesome.  Does that mean the EEA national has to be looking for work immediately upon entry to the UK or shortly after, and, demonstrably so?  Or can the test be satisfied if the person only begins to seek employment after being in the UK for a significant period of time, whatever that might mean?  In other words, how significant a factor is the intention of the claimant upon entry to the UK bearing in mind the purposes of the relevant EC treaties?  And has this point been taken in the appellate courts?

Edited to name the relevant regulations.

Para 12, SSWP v RK [2009] UKUT (AAC) 209. See SS legislation vol. II, para. 2.187.

Have you got a link to that decision?

Here is SSWP v RK: http://www.osscsc.gov.uk/Aspx/view.aspx?id=2770

See also para 14(iv) of Zubair (EEA Regs: self employed persons) [2013] UKUT 196 (IAC) (here: http://www.ait.gov.uk/Public/Upload/j2583/00196_ukut_iac_2013_sz_pakistan.doc )

The FtT in that case had held:

“ii.  In any event, Mr Zubair could not be regarded as a jobseeker as he did not enter the United Kingdom for that purpose as required by regulation 6(4).”

The UT said that was wrong (although it is a typo when they say “summarised at para 6(iii)” - they meant para 6(ii)):

“iv.  We see no reason why a person who has entered the United Kingdom in another capacity cannot subsequently become a work seeker, and note that the respondent treated him as such.  The words of regulation 6 (4) ‘enters the United Kingdom in order to seek employment’ should be read to include those who having entered can provide evidence that he is seeking employment. We do not think the judge was correct in his conclusions summarised at paragraph 6 (iii) above…. “

Thanks chaps.