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East is East
Re – the amendments to the 2006 immigration regulations.
Paragraph 3(7) of schedule 3 states that “a person may not retain the status of a worker pursuant to paragraph (2)(b), or jobseeker pursuant to paragraph (1)(a), for longer than six months unless he can provide compelling evidence that he is continuing to seek employment and has a genuine chance of being engaged.” It is arguable that this narrowly restricts the scope of EC Directive 2004/38 and should not be followed.
This one really worries me. How on earth can anyone currently unemployed (especially for 6 months or more) provide ‘compelling evidence’ that they have a genuine chance of being engaged in work? It’s kafka-esque.
As far as work seekers and former workers who worked for less than a year are concerned, the only surpise is that it took so long to amend the Regs in this way.
Donkeys years ago the European Court said in the Antonissen case that a member state is entitled to tell a work seeker s/he is flogging a dead horse after a while, and six months wasn’t unreasonable. And the Directive only guarantees six months worth of retained worker status for those who worked for less than a year so it’s a bit of a mystery why the UK Regs have always allowed longer.
The controversial one is loss of worker status after six months for those who worked at least a year. The UK will say that it must be implied into Article 7 of the Directive that the person remains genuinely in the job market, and JSA work seeking conditionality will proably achieve much the same result in any case. But we know from the Elmi case that remaining available for effective and genuine work while claiming IS or otherwise not satisfying full JSA labour market requirements are not mutually exclusive, so there will probably be appeals exploring how the new Regs stand up in cases like that.
Mr Antonissen had been sent down for possession and intent to supply cocaine. Whether the court’s judgement was coloured by the view that, as he had been convicted for intent to supply, he might have been making enough money that there was a chance that he wasn’t even genuinely looking for work, we shall never know. However, the principle remains that there must be a genuine chance of obtaining employment as the following passage from the judgement makes clear:
’ . . . it is not contrary to the provisions of Community law governing the free movement of workers for the legislation of a Member State to provide that a national of another Member State who entered the first State in order to seek employment may be required to leave the territory of that State (subject to appeal) if he has not found employment there after six months, unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged.’
So far so good but as Pamela Fitzpatrick points out in her article for CPAG in October 2008 “it is difficult to see how a person who meets the onerous rules for jobseeker’s allowance would not be found to be genuinely seeking work”. This has been further strengthened by the existing work seeking regime. However, as pointed out above, this has been complicated by the Court of Appeal’s decision in Elmi concerning the provision in regulation 2(b) (article 7(3)(b) of EC Directive 2004/38) which states that a person retains worker status where “he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office”. Here the court decided that for the purposes of this provision it was not a requirement that the claimant claimed JSA. This left the door open for EEA nationals to avoid the rigours of the JSA regime and to claim IS as long as they were a prescribed category of person thus enabling them to look for work at their own pace.
In my view it is the amendment in paragraph 3(7) to regulation 2(b) (article 7(3)(b) of the Directive) which I consider too narrowly constricts that provision of the Directive. It states:
“A person may not retain the status of a worker pursuant to paragraph (2)(b), or jobseeker pursuant to paragraph (1)(a), for longer than six months unless he can provide compelling evidence that he is continuing to seek employment and has a genuine chance of being engaged”.
The phrase “compelling evidence” is a worry. That goes far further than both Antonisssen and the EC Directive. How is that to be interpreted? The word “genuine” in the phrase “genuine chances of being engaged” might be said to be taken to be satisfied if it can be shown that there were available vacant jobs for which the person was suitably capable or qualified. “Compelling evidence” could be taken to mean that it was more than likely than not that the claimant would be offered one of those jobs. This calls for too much speculation and thus sets the bar far too high.
Finally, there is Teixeira. Will the new provisions apply to these kinds of cases? In Teixeira the ECJ ruled that the primary carer of a child in education who was a worker or former worker in the UK (or whose partner was) had a right to reside as long as the child was in education up until the age of 18 (or longer in certain circumstances). The child had a right to reside in order to avoid discrimination under article 12 of Council Regulation 1216/68. As EC regulations have direct effect in member states it is difficult to see how this right can be lawfully frustrated by member states in Teixeira type cases.
We shall have to wait and see how this area of the law develops as cases come before the courts over time particularly as it plays out against the backdrop of the calls by several member states for the repatriation of powers back from Europe. One thing is for sure, the debate will not be informed by the skewed and ill informed reportage of the more salacious elements in the press.
As a slight aside, I was flicking through the TV channels last night and landed on The One Show. A report on bird migration and their inbuilt navigation systems was prefaced by an allusion to the new rules for A2 migrants in January 2014. Extraordinary!
Actually, thinking further, the new amendment shouldn’t apply to Teixeira type case, so ignore that bit.
Is it a damning indictment of our system that “available for and actively seeking” work is not perceived to provide “compelling evidence” that one is destined to find it?
Oh… is that my nose?
fogive my ignorance please, but am I right in tinking these ammendments will apply to all EEA nationals from 1 Jan onwards, even those already getting JSA?
It will apply to all EEA nationals. There is now this. It’d be interesting to know what the Attorney General’s advice was.
Considering the number of UK nationals whose lack of command of their own language would constitute a barrier to them finding work, should the same test not apply to them?
We don’t want to be accused of discrimination against foreigners,.... do we?
It will apply to all EEA nationals. There is now this. It’d be interesting to know what the Attorney General’s advice was.
It would be interesting to see that applied in Wales.
It would be interesting to see that applied in Wales.
Good point.
Migrants will need to show a good knowledge of all the native languages, including Cornish and Scottish Gaelic, if they are to undertake proper job searches.
[ Edited: 17 Dec 2013 at 01:31 pm by Rehousing Advice. ]
Years ago I took the online Britishness test, once mooted by the last government. I failed miserably. And, my family on my father’s side has been here for 1000 years.
It would be interesting to see that applied in Wales.
Good point.
Migrants will need to show a good knowledge of all the native languages, including Cornish and Scottish Gaelic, if they are to undertake proper job searches.
Not necessarily. Welsh has a different legal status, certainly to Cornish.
From the latest Touchbase…
“Compelling evidence will vary from person to person, but a written job offer with a definite start date, for example, could be considered compelling evidence. Where there is no compelling evidence, JSA payment will stop.”
So, basically, you need to show that you’ve got a job.
I can see trouble ahead…
Oh for goodness sake…
What’s worrying me is that I have several EEA clients with ongoing ESA RTR appeals who are currently claiming JSA and are going to be caught by this. One has substantial mental health issues and I’m really concerned for the client’s well-being. The client’s RTR appeal has already been outstanding for a year. TS has recently issued a direction following my intervention and I shall ask for the appeal to be expedited once the bundle has been produced but even so I can see all roads leading to the client being homeless, destitute and probably back in hospital under a section before the appeal is heard.
Does anyone know how this will affect those in Universal Credit areas?