EU residents claiming JSA

The mechanism is at reg 6(2) of the I(EEA) regs

To police it I suspect they’ll use a labour market decision; “you’re sanctioned and beyond that you’re not going to get a job here so we’ll refute your R2R too” so the mechanism is largely in place. Whether they’ve got the staff to police it up at Wick will be interesting to see and I can see some interesting caselaw in the pipeline; shame I’m not still in an area massively affected by the R2R.

It might yet be UKIP appeasement that will come to nothing; that’s my gut feeling tbh, but it’s worth bearign in mind how they could go about it

If the DWP do go down the route of applying this test literally I fear we will have a postcode lottery for decisions.

Establishing if someone has a genuine chance of getting employment surely entails making a judgement on their employability, which in turn is very subjective.

Nah. If they fail to keep to their Claimant Commitment they’re plainly unemployable!

Where’s the tongue in cheek smiley when you need it eh?

In late NOV 2011 The EU told the UK the following:

The Commisions view is that applying the Habitual Residence Test & Right to Reside test to Income Support; JSA; etc 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 HRT [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.

An email released on Wednesday 18 Dec 2013 to the Local Authority Associations Steering Group :

Changes to the Regulations

1 The regulations (The Jobseeker’s Allowance (Habitual Residence) Amendment Regulations 2013) that come into force on 1 January 2014 rely on the urgency procedure under section 173 of the Social Security Administration Act, 1992.They clarify the Habitual Residence Test in the Jobseeker’s Allowance Regulations 1996 and will mean that EEA jobseekers and British nationals who have been absent from the UK for more than a temporary period cannot access income-based Jobseeker’s SA and therefore Housing Benefit for the first three months of their residence in the UK. From this point they can gain access to those benefits if they are considered to meet the wider and continuing requirements of the Habitual Residence Test & Right to Reside [RtR].

The implication of the recent changes on existing EU residents claiming JSA now it would seem it applies to British & Irish Nationals. If the rule about providing evidence that they have a genuine chance of being engaged (after six months+ jobseeking) is applied, I imagine that many would find their benefit stopped. Including British & Irish Nationals returning from abroad?

Also I can see WICK swamped with RTR work causing a large back log and with not enough staff to deal with it.

I’ve posted elsewhere on my views on the amendments to the immigration regulations

http://www.rightsnet.org.uk/forums/viewthread/5683/

But, on the narrow points about British citizens, first, British citizens are already subject to the habitual residence test (the right to reside test, in itself, is a different thing altogether) but there are different rules depending on whether they are returning from inside or outside the EEA.  If from inside, then many can still rely on periods of residence in other EEA states as if they were periods of residence in the UK under the co-ordination rules.  There might be some who cannot and these will be the difficult cases.  If from outside, then the current case law (see Nessa) is that a period of residence of between 1-3 months will usually be sufficient.  The government has merely amended the statute to set the minimum period at the upper end of this and will probably get away with this for those cases.

Second, as to providing compelling evidence of the prospect of finding employment, etc, then the immigration regulations only apply to EEA nationals who are not British citizens.  The amendments allow for British citizens to be treated as EEA nationals but not for the purposes of regulation 6.

see also New Year’s Eve DWP press release highlighting changes from 1.1.14 and saying -

‘Further planned reforms, which will be brought in over the next year, include ensuring that new EEA job seekers will be unable to access Housing Benefit, and introducing an earnings threshold to trigger a test which will check that someone isn’t claiming to have, or have had, a job, or be self-employed to access benefits.’

https://www.gov.uk/government/news/tough-new-migrant-benefit-rules-come-into-force-tomorrow

the immigration regulations only apply to EEA nationals who are not British citizens.  The amendments allow for British citizens to be treated as EEA nationals but not for the purposes of regulation 6.

Yes nevip, but my fear is that will be seen as discriminatory, thus unlawful

For a History of the HRT see