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Right to reside - children in school
Hi all,
I’m looking for some help on a case involving a Spanish family with children in school in the UK.
Father has been refused JSA as he’s had his six months of retaining worker status. There’s a separate challenge based on that but I’m also investigating whether there is a primary carer of children in school argument.
His last period of employment was from September 2013 to 12 January 2014 and he claimed JSA after he lost his employment. The children came into the UK on 20 January 2014 and entered school pretty quickly after that. The problem comes from the fact that children did not reside in the UK at the same time that at least one of the parents was working. His employment ended 8 days before the children came.
According to the ECJ, a period where the children reside in the member state and the parent is residing as a worker is a requirement for the children’s right to education to arise under 1612/68 or 492/2011 (Ibrahim, Graal and Brown all say this is a prerequisite).
The EEA regs state that the period must be when the parent is actually working, not retaining worker status (Reg 15A(6)(b) excludes those retaining worker status from being a “worker” for the purposes of the children in school right to reside).
I’m just wondering why the EEA regs impose this restriction when the ECJ decisions refer to the person residing as a “worker” which would presumably include those who retain worker status under Art 7 of 2004/38? Regulation 492/2011 is made under Article 46 of the TFEU which in turn refers to Article 45 for the definition of worker. And Article 45 expressly gives the right for a worker to remain in a member state after their work his finished providing certain conditions are met. 2004/38 sets out the conditions and this man meets those conditions by claiming JSA after his employment ended and retaining worker status.
The EEA Regs would say no though so I’m wondering if there is case law that says worker for the purposes of 1612/68 or 492/2011 does not include retained worker status? Anyone know of any decisions that look at this issue or where the restriction in the EEA regs might come from?
His last period of employment was from September 2013 to 12 January 2014 and he claimed JSA after he lost his employment. The children came into the UK on 20 January 2014 and entered school pretty quickly after that. The problem comes from the fact that children did not reside in the UK at the same time that at least one of the parents was working. His employment ended 8 days before the children came.
(Reg 15A(6)(b) excludes those retaining worker status from being a “worker” for the purposes of the children in school right to reside).
The EEA Regs would say no though so I’m wondering if there is case law that says worker for the purposes of 1612/68 or 492/2011 does not include retained worker status? Anyone know of any decisions that look at this issue or where the restriction in the EEA regs might come from?
As far as I understand EU case law he is still a “worker” for 6 months, yes he loses the status after 6 months, but the kids entered education during that period so he would have been fine BUT the UK regs say he is not. Are the amended EEA regs lawful? I don’t know but I don’t think so, it would obviously need to be tested and that would take a long time.
I don’t know of any case law that addresses this particular issue or any pending cases, your case may be one of the first.