An A8 national, single parent working less than 12 months goes off sick and has been advised to claim IS. I've got a feeling that this is going to come to me for an appeal.

I've read and re-read the immigration and the accession regs, the DM's guide, wiews of other contributors to this site until I am now word blind.

I still don't think I have the definitive answer but I've formulated a provisional view. Can anyone confirm it, or much better, tell me where I've gone wrong so that I can construct a case? The situation seems grossly unfair otherwise. Is the government's position "take your child and sod off back to ******** then"

My view is that an EEA national can retain qualified person status as a worker if they are temporarily sick. However that provision does not apply to an A8 national who has worked less than 12 months.

The person thus loses the right to reside. The family member (child) thus also loses the right to reside. I've been trying to find some provision where the child could retain the right to reside and thus the parent could thus regain the right to reside as a family member. The provisions only seem to refer to situations where the adult has died. Thus the person cannot claim IS as incapable of work.

First, is that view correct?

Second, if it is then is there a right to reside under european law that either the adult or child can take advantage of?

You say she's been advised to claim IS. I take it this means she has lost her job and is not entield to SSP - which as far as I know applies to A8 nationals simply becsuae they can get it if they are validly employed. So I suppose one question is - is she still employed? If not then I think she has a real problem as she doesn't yet qualify as a worker if stopping work within the 12 month period.

In the light of the recent Court of Appeal decision (see News), I wouldn't now want to fly a kite on any sort of free-standing Treaty right.

Hi Ariadne

I'm not involved yet but I understand that she is still employed but does not earn enough to qualify for SSP. Another colleague of mine feels that there maybe something dodgy about the work but don't have any more info on that yet.

Regards
Paul

Hi Paul

I suppose she has got her employment with this employer registered under the A8 scheme or the whole thing is a non-starter and her employer is acting illegally. I also assume that the employment is legit, ie national minimum wage, and not so minimal it wouldn't count.

So my gut feeling is she is still employed under this contract but I'd really welcome someone else's views, not least if your colleague has misgivings.

Ariadne

So lets assume the following. The work is legitimate and registered. She is temporarily incapable of work. She does not qualify for SSP. Can she claim IS? My initial view is no but I'm by no means an expert in this area but I know some of you out there are.