I am trying to follow/understand the various recent threads concerning RTR, with decreasing confidence. In the blue corner, Mr Baumbast, and in the red, Commissioner Rowland!

On a tangent, what about the case of a french national who has worked f/t in the UK for 2 years, and will shortly be going on maternity leave with her first baby. She intends to go back to work. She will get maternity pay for a while, but will then need IS as a lone parent. Assuming Reg 5(2) of the 2000 Imm (EEA) Regs does not apply because she won't hopefully be incapacitated by illness/accident, where does she stand?

I have read some thread generated arguments on similar cases suggesting that you can argue an entitlement via direct application of Article 12 of EC Treaty (no discimmination on grounds of nationality) or Article 18 (right to move/freely reside). However, dark clouds gathered when I read CIS/2358/2006. Here is clip from para 10...

'....I accept that there is a distinction on the facts but it does not seem to me to be material in relation to Article 12. In CIS/3182/2005, I suggested in paragraph 24 that arguments arising under Article 12 as to whether discrimination can be justified were more or less the same arguments that arise under Article 18 when considering the proportionality of limitations or conditions imposed on rights of residence. What Abdirahman makes clear is that one must always approach a case by considering rights of residence first. If a person does have a right of residence, discrimination is unlawful under Article 12. On the other hand, unequal treatment is permissible if it is a consequence of a person not having a right of residence. This is entirely consistent with what was said by the European Court of Justice at paragraphs 40 to 46 of Trojani v. Centre public d’aide sociale de Bruxelles (Case C-456/02)...'

I am aware that some consider this approach is wrong, and that appeals might be in the pipeline. However, what do you think the client should do in the meantime? The knee jerk response at local IS section will probably be 'not economically active... no IS'. I can't see client signing on for JSA after the baby (could be availability problems anyway, because of intention to return to work).

Any ideas?

Hi Steve,

I've pondered this for a while and I have to admit that my R2R knowledge is sketchy at best. One of the problems of being a lay adviser is that difficult issues, such as EU law, can seem like a (not impossibly insurmountable) mountain.

However, for what its worth, on my current understanding I would find it difficult to argue against the client being not economically active if she claims income support. It seems clear that she'll be neither a 'worker' nor a 'work-seeker' and I'm seriously doubting the validity of 'technical' challenges to the RTR test generally as so many have failed (although I would say that one or two were slightly dodgy to start with!). Also, with the constant political and tabloid hounding of those that come to the UK from abroad - isn't it possible that judges might be swayed against finding claimant friendly loop-holes?

ATB,

Tony

Hi there Tony,

I think you are right. There was a bit of case law recently that confirmed you could be economically active whilst on IS, but I think that concerned a case where the claimant could have claimed JSA, but was wrongly advised to claim IS. In the kind of cases I am talking about, the claimant would not be available fro work, or certainly initially.

Don't slip on the snow.

Steve

In the case you are thinking about is she employed and on additional maternity leave? If so I think she would not lose worker status and so could claim IS etc.

Steve,

Do you have a reference to the CD you described? Sounds like it is just what I need for my only RTR case. We're trying to get JSA to backdate for the same period that IS was refused on the grounds of misadvice, but if that fails, we have to appeal go on with the IS appeal.

Thanks,

feeling in the same boat as tony as regards 'sketchiness' etc, but don't think it is necessarily clear that she isn't a worker, if she is exercising an employment right to maternity leave. granted, i can't find anything which _explicitly_ covers her in the Immigration (EEA) Regs, but it is far from clear cut, as the CD makes clear...

http://www.osscsc.gov.uk/judgmentfiles/j2181/CJSA%201475%202006-00.doc

in the regs, a worker _is_ covered for periods of inactivity due to illness or accident, but no mention of maternity leave, which is another period of interrupted (rather than ceased) employment. does this mean that women workers lose worker status when employment is interrupted by maternity leave, but they are still employees? i would be dismayed if it did - would appear unexpectedly regressive and discriminatory, here we go again??? but rather hope, welfishly, that there is a better explanation for its absence..worth a crack, anyway?

I think the case about being a workseeker while on IS is CH/3155/2005 which was heard with CIS/3182/2005. Only works for pre-2006 cases though, because of the change to the definition of workseeker in the 2006 EEA Regs.

I would also take the view that a woman on maternity leave is arguably still a worker, since otherwise there would seem to be a clear discrimination issue, but the Directives don't seem to deal with it any more than the UK Regs.

I have also won at tribunal by arguing that a woman who needed to claim IS for a short time around the birth of her child (not on maternity leave, but stopped agency work a month before, and went back to agency work 2 months after) could be treated as self-sufficient because she was not an "unreasonable" burden on the social assistance scheme. In her case she had been here about 2 years by the time of the tribunal and the only time she wasn't working was the 3 months around the birth, and the tribunal accepted that a short-term claim didn't prevent her being self-sufficient.

Thank you everybody for these contributions, and sorry Tony for raising your hopes with the case law reference. To answer Damian's question, she is just going on maternity pay, and all points made about arguing she is still a worker on this basis are noted.

JJ's point about maternity not featuring in Reg 5(2) of the 2000 Regs (temporary incapacity if ill/accident) is troubling, but only if Reg 5(2) is meant to be a finite list of circumstances when a worker who has stopped work, is still a qualified person. My hope is that Reg 5(2) is there to protect certain cases, without necessarily excluding others. What do you think?

Kieth, your cunning plan regarding unreasonable burden may not I think work for my client, who intends to be off work for a fair bit longer (not sure how long). Real problem will arise when maternity pay stops. The argument that you can't be discriminated against if you don't have the right to reside is still very worrying.

Steve