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HELP! last minute HB appeal EEA national with permanent right to reside
i have a HB appeal due to be heard as we consider client has permanent right to reside as she has worked continuously for 8 years, she did not meet the earnings threshold for around 2 years of the 5 required as she was an apprentice but as far as i can tell she should still be treated as a worker for this period (when the 2 tier test is applied).
i have also spoken to JSA re their decision (although we are awaiting the outcome of the MR still) the DM i spoke to says the 2 tier test does not apply for permanent residence ? i am of the opinion that if the test is there to verify if you are a worker then this would count towards permanent residence? any ideas?
The earnings threshold has no legislative basis as far as I can tell. It is merely internal guidance
There is no doubt in my mind that if the person was employed as an apprentice she is a worker.
If the apprenticeship was not with an employer, she could retain her worker status because Regulation 6(2)(d) of the 2006 Immigration (EEA) Regulations provides:
(2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if—
(d) he has voluntarily ceased working and embarked on vocational training that is related to his previous employment
HB are not bound by the DWP’s determination in any case
See my recent post on this thread https://www.rightsnet.org.uk/forums/viewthread/12861/
[ Edited: 24 May 2018 at 03:06 pm by Stainsby ]Thanks for your response and advice, our appeal was successful and it was decided that the work was indeed “Genuine and Effective”.
Cheers!