i went on an excellent LASA run course on EU law, right to reside, and HRT and have managed to cobble together cascaded training for our housing officers, but there are two things I can't work out still. Would appreciate some advice;
1) am i right in thinking that although the max gap between working for A8 nationals before they have to re-register in the first 12 mths is 30 days, that anyone claiming HB while off work in such a gap would only get the HB up to end of the calendar month not the full 30 days? I wasnt sure if this was for all benefits or just some.
2) parasitic rights- does this only apply to family members of EEA's or to family members of British citizens too? We had a (fictional)case study with a Lithuanian window cleaner who broke both his legs within 10 mths of starting work in the UK, who was living with his partner a British Citizen. Would the window cleaner have Right to Reside through parasitic rights or would his partner have to be an EEA worker instead?
thanks!

My view of your question 2 would be that:

a) In European law then it is only where the person on whom the claimant is looking to depend for their rights is a migrant worker (or exercising some other treaty right) that the claimant will be able to take advantage of the situation - thus in the example you give, the chap would have been better off with a non British EU national etc.

b) In UK law, the same result applies (for A8 nationals at least) as far as the right to reside goes- Reg 1(1)(k) of the Accession Immigration and Worker etc Regulations 2004 defines worker as having the European meaning (ie migrant worker). Reg 2, which exempts the family member of a worker from having a need to register is therefore restricted to the family members of non EU nationals who are workers.

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However: given that the right to reside only applies to the claimant, what is to prevent any claims that are needed being made by the British citizen? (only problem would be with an IS claim - she would need to claim JSA as could not rely on his sickness).

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Interestingly, if you are looking not at the issue of right to reside (which you are in the example given) but at the issue of whether a claimant is a person subject to immigration control then being the family member of a UK national will be sufficient (and arguably "family member" should be interpreted quite widely- we have taken cases arguing a grandfather is the family member of his 3 year old granddaughter who is a british citizen).

I will leave question 1 for someone else to have a stab at (it's not that I don't know the answer honest).


Martin

Sorry in my (b) above I meant "restricted to the family member of non British EU national"

thanks for these answers- im a bit clearer now about the parasitic rights issue. but you've confused me now by the psic business!- i thought if we have a couple where one is a british citizen and the other is a psic, then- particularly where the psic must have no recourse to public funds- we have to be careful with claims for HB etc, because any increase to the partner's benefits on account of the psic joining the claim will be construed as the psic having recourse to public funds? so where does the family member issue arise????????????? please clarify!!!

Where a person can claim benefits by taking advantage of regulations made under section 115(3) and (4) of Immigration and Asylum Act 1999 then this is not regarded as additional recourse to public funds. This is because of the way in which the immigration rules (since March of last year) define public funds.

Thus the immigration rules state:

paragraph 6B -

'A person shall not be regarded as having recourse to public funds if he is a person who is not excluded from specified benefits under section 115 of the Immigration and Asylum Act 1999 by virtue of regulations made under sub-sections (3) and (4) of that section or section 42 of the Tax Credits Act 2002.'

1. A person who is a member of a family of a national of a state contracting party to the Agreement on the EEA signed at Oporto......

i will go into a darkened room and lie down for a bit then re-read it. again. then i'll get back to you if i need to,which i probably will! thanks, and sorry for being thick

I don't think its you being thick..... one of most complicated and weirdest bits of law I ever did see.

As to the issue of HB and recourse to funds, this is a little weirder (as a claimant with a PSIC partner who could not squeeze themselves into any of the Regs discussed above and who had income above applicable amount for single person would seemingly have a couple rate applicable amount for HB and thus be getting extra funds.....very twisty turny etc) but may have been sorted out by Commissioner Levenson (although his decision is at the Court of Appeal now):

see the summary of
CH/3801/2004
in briefcase.

The short answer to question 1 about A8 nationals is that it effects all benefits subect to a right to reside condition not just HB.

The reason for this follows:

1)Regulation 5(2) of the Immigration (EEA) Regs 2000 protects workers who are temporarily ill or involuntarily unemployed (and claiming JSA) from losing their status as "qualified people". As such they retain their right to reside. This right could either be because they retain worker status under EU law or just because the domestic regs say they do. Depending which route you argue, as "qualified people", they satisfy the R2R or as workers retaining status they are exempt from the R2R and HRT. As such normal benefit rules apply. The caveat being we do not know how long "temporary" illness lasts.

1a) Just a side line the new Directive 38/2004 for the first time expressly lays down the conditions in EU law where worker status is retained - Article 7(3). From April 30, when the new Directive comes into force, the UK decision that decided the "voluntary" unemployed also retained worker status (R(IS)12/98) may be challenged.

2) The accession regulations qualify this protection for A8 nationals. Regulation 5(2) of the EEA Regs is modified by Reg 5(3) of the Accession Regs 2004, so that Reg 5(2) of the EEA regs does not apply to an accession State worker requiring registration who ceases work. This in turn is subject to the exception in Reg 5(4) of the Accession Regs so that people who are ill or involuntarily unemployed only retain "qualified people" status "during the one month period beginning on the date on which the work begins". Reg 5(2) only applies to the worker during the remainder of that one month period. I believe in the pack, i point out that this could be read as meaning people are only protected in the first month of employment. However White R., in an article Residence, Benefit Entitlement and Community Law,(2005) 12 JSSL 10 at 21 states that A8 workers are protected for the remainder of the last month in which they worked.

3) This means that A8 nationals cease to be qualified people at the end of the one month in which they cease work. Under domestic law, if they cannot derive "qualified status" from another route, they cease to have a right of residence under Regulation 14 of the EEA regs. This does not answer the question whether they lose that right under EU law, something that was not really covered in the case of D (Latvian) and is hopefully getting an airing in the Tribunal of Commissioners case.

4) If they have lost their right of residence under the domestic regs and you cannot find another route for such a right of residence, they cease to have a right to reside and therefore all benefits that have that as a condition are affected.

as an aside, the European Union (Accessions) Act 2006 has been published today ....

.... relates to the accession of two extra countries, Bulgaria and Romania ....

http://www.opsi.gov.uk/acts/acts2006/ukpga_20060002_en.pdf

thanks everyone for all your help. it made a lot more sense after several strong coffees and a paracetemol.