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Right to Reside & Pregnacy
I have a Cl who is 37 weeks pregnant she is an EU national. She was Claiming JSA and actively seeking work. At 34 Weeks, that is when I first met her, we made a claim for IS She has failed the RtR. The DWP are using the following
41 On the other hand, that provision is not intended to lay down the conditions creating the right to special non-contributory cash benefits. It is for the legislation of each Member State to lay down those conditions (see, to that effect, Dumont de Chassart, paragraph 39 and the case-law cited).
42 It cannot therefore be inferred from Article 70(4) of Regulation No 883/2004, read in conjunction with Article 1(j) thereof, that EU law precludes national legislation, such as that at issue in the main proceedings, under which the right to a special non-contributory cash benefit is conditional upon meeting the necessary requirements for obtaining a legal right of residence in the Member State concerned.
Does anyone have an opinion or know of any case law [Human rights pregnancy preferably] which might assist me. As they are saying that my Cl to qualify for IS (pass the Habitual Residency Test) she will either need to have “Worker” status in the UK or derive rights from an ex-partner who is an EU national.
Is their anything I may have missed
Thanks
I don’t know why the DWP is referring to Regulation 883/2004 when right to reside cases usually fall within EC Directive 2004/38. See the link for the Advocate General’s opinion in the Jessy Saint Prix case. The AG’s opinion is not the judgement of the ECJ itself but the court usually follows the AG’s opinion.
I know nevip I couldn’t understand that either but JP V DWP is just the Advocate General’s opinion and has no bearing until it has been enshrined in law I am looking for human rights stuff based around family life.
It sounds to me that they are pre-emptively trying to make an argument that they don’t have to follow Jessy Saint Prix. Not sure how far that is going to get…
Well at the moment they don’t as it it is not enshrined.
I’ve never been aware of any right to claim IS for an EU national - same after the baby is born. I’ve always had to advise them to claim JSA or (if there is a record of working) ESA. Taking this straight from the 2006 Regulations. Has something changed that I am not aware of? Ruth
How would a mother who has caring responsibilities fit into the remit of JSA? I know she can limit her availability for work, but if she were to get a job or be sent for an interview who would care for the child? She has no family support network here.
Further if she were to claim ESA would it be because she was too sick to work? Or for some other reason. I have plenty of EU National Mothers who claim IS either through derived rights or because they have worked and had and have Worker Status.
My Present Cl does not have derived rights, nor had she worked prior to pregnancy but was and is seen as a worker as she was actively seeking employment with regards to JSA.
So which way to go, because if she goes onto ESA she will have do another RtR, but on JSA she may have to go to work and who will care for the baby as I said?
This is my understanding…happy to be corrected :s
If she has only ever claimed JSA in the UK then she is not a worker, she’s a work seeker. She can claim JSA up to 6 weeks before the due date and then 14 days after the birth. She has no worker status to retain and so will not be able to claim IS/ESA in the intervening period.
If she has been a worker before claiming JSA she will have retained her worker status. At present when you hit 6 weeks before your due date you almost always lose your RtR as your JSA ends (as you are treated as having LCfW) and so you no longer retain your worker status. After the baby is born and you go back onto JSA you will no longer have RtR as a worker but as a work seeker. At present the only way you can retain your worker status is if you are able to establish that you are suffering from a pregnancy related illness that gives you LCW, in which case you could claim ESA.
There is also the situation where someone is working directly before leaving work because of pregnancy. This is the issue that is being discussed in Jessy St Prix and looks like it is going to be decided in the claimant’s favour. If this is the case EEA nationals would be able to claim IS 11 weeks before baby due and then another 15 weeks after it is born, before going onto JSA or back into work. I would argue that this also applies to people who have retained their worker status on JSA. So pregnancy would not mean a break in retained worker status.
Obviously all of the above is based on the assumption that you do not have a derived RtR or Permanent RtR.
Practically, once the baby is born the long term plan is to claim JSA, and then once a job is found put the baby into childcare funded by working tax credits, whilst mum works.
I’m not aware of any HR caselaw. I’d be interested if anyone has any experience of Social Services supporting pregnant women for the 8 weeks that they are unable to claim JSA or any other benefit?
The Commisions view is that applying the RtR test to IS is unlawful under EU law, because it constitutes discrimination based on nationality, which EU Law; in particular Article 4 of regulation 883/04 prohibits. The commission believes that this is a form of indirect discrimination because Uk and Irish Nationals always pass the RtR test but not other EEA Nationals which cannot be justified. The Commision gave the UK TWO MONTHS [till the end of Nov 2011] to inform them of measures the UK authorities have taken to bring UK law in line with EU Law. UK have said they will do nothing, So now their is a breach of law and it is being dealt with by the EU Court. Any judgement by the Court of Justice would be binding and final, yet no decision has been handed down so far.
My Cl is already getting assistance via a support and assistance scheme and Social Services have called and said we had to go to the Assistance scheme and use it until she cannot anymore before they will step in, even though she has a Six year old child, so S17 CA 89 should kick in earlier.
“She can claim JSA up to 6 weeks before the due date and then 14 days after the birth.”
I have been looking at JSA rules for a European client, but haven’t found this. Can you tell me where you got it from?
“She can claim JSA up to 6 weeks before the due date and then 14 days after the birth.”
I have been looking at JSA rules for a European client, but haven’t found this. Can you tell me where you got it from?
I think I got a bit confused - this is the period where you can use a medical certificate to be automatically treated as having LCfW and claim ESA. You can’t claim JSA whilst you have LCfW but I’m not sure if the ESA ‘automatic LCfW’ rule applies in this case.
However there is nothing to stop JCP deciding either that you have LCW or that you are not meeting the labour market conditions. Obviously you’d have a right of appeal against this decision but I think it may well be an uphill struggle (particularly in terms of the latter).
I’ve never been aware of any right to claim IS for an EU national - same after the baby is born. I’ve always had to advise them to claim JSA or (if there is a record of working) ESA. Taking this straight from the 2006 Regulations. Has something changed that I am not aware of? Ruth
What about if they have retained rights as someone who’s stopped work permanently after an industrial accident? Family member or dependant of a worker? Baumbast/Teixera primary carer?
I meant where there is no right derived in any other way but industrial accident - unless prior to IB ending, normally ESA, family member yes (ironically greater rights as a family member than the worker whose family you are a member of) , primary carer, i think so but would need to check, retained worker’s rights no - only as temporarily ill (ESA) or seeking work (JSA). Ruth