I have a client who is a Polish National, she came to live here on 30.03.05 and found work on 20.06.05 she was registered on workers registration scheme the same day.

Sixteen months later she got pregnant and went on SMP then after 26 weeks resigned from her job because of childcare responsibilities. She made a claim for Income Support as a lone parent from 13.11.06 but was turned down because it was decided by an EU decision maker that she did not have the right to reside.

I have since spoken to EU decisions who have told me the reason why her claim for Income Support was refused because she had left work to look after her child, not because she was sick.

Is this correct?

Beverley Reppion
Welfare Rights Caseworker.

yes... you lose the right to reside if you are likely to become a burden upon the state... she may be able to claim JSA for 6 months but would then also have to get some employment, even part time, to retain her R2R

Hi Nick-

I know that the right to reside test in homelessness legislation works slightly differently.

However, for benefit purposes:

1. A person is only required to have sufficient resources to avoid becoming an unreasonable burden on the social assistance scheme if the basis of their R to R is as a self-sufficient person (students are slightly different- they just need a declaration as to their resources). Thus someone who leaves work and is then either looking for work or is sick will retain their status as a worker and consequently the right to reside that flows from that no matter how much of a burden they are on the social assistance scheme.

2. As to only being able to claim JSA for six months there is no definite fixed period under which someone can retain a right to reside as a jobseeker in English law- thus the 2006 I(EEA) Regs say simply that such a person has entered the UK to seek employment "and can provide evidence that he is seeking employment and has a genuine chance of being engaged" - many people are unemployed for far longer than 6 months and one would still say they have a genuine chance of finding work. However, the right to reside of an unemployed worker (different from a jobseeker right which is for someone who has never worked) is slightly different. basically the worker here must register as a jobseeker and show either that:
a) employed for over 1 year before lost work (in which case runs for ever.....)
OR
b) unemployed for no more than 6 months.
OR
c) can provide evidence he is seeking work in UK and has a genuine chance of being engaged (again if someone has been unemployed for 3 years one would not say necessarily they do not have a genuine chance of getting a job).

A person who worked for less than a year is thus automatically fine for 6 months on JSA and after that need to bring themselves within para c above.

For original post:

1. Check if your client is/was married. Has the ex-husband got a right to reside? Client may get rights from this.

2. Failing that client should claim JSA rather than IS. Appeal the IS decision anyway as can try argue not reasonable. Or could also try argue that childcare should be one of the circs in which a R to R is retained. Would need to get around CIS/3182/2005 to do that.

hi martin

i am having a nightmare of a case with the DWP who keep refusing a polish national who came here in 2002 as a visitor and then legally registered as self employed

he worked continuously and paid his ni contributions

i am sure that this made him an EU worker on 1st may 2004 and he can claim is or jsa if needed

he moved into actual employment in 2005 and worked for less than a year before falling sick with cancer. he has been on and off work since then. he never went on to workers registration as he did not need to

i have all the stuff on accession regs

but they insist that no one is ever exempt from right to reside..

is there anything in the decision makers guide etc?

thanks
elane

Hi Elane.

(Shameless plug...... we would be happy to represent client at any appeals - refer to LASA appeals team by following the referral information on the main LASA website- www.lasa.org.uk )

I don't think the DMG will be of much assistance.

Various issues appear from the facts as stated in your posting:

1. If he was self employed previously has he lost that status by becoming an employee- this is important as although the 2006 Immigration Regs do not say a self-employed person retains that status is temporarily incapable of work the EC Residence Directive (204/38) does make this clear. Thus if you can argue that your client was self-employed and he had not lost that status then this should be fine.

2. Assuming that it cannot be argued that your client is a self employed person who is temporarily sick as above then frrom what you say, I am not clear whether any of the following will apply (these are all ways of your client avoiding the need to register his work with the home office under the accession scheme)---

a) Was his immigration status prior to 30/04/2004 without any restriction on his employment? (A visitor visa does have such restrictions, so as far as I know does a self employed type visa).

b) Had he worked throughout the 12 months prior to 30/04/2004 - to argue this one successfully you may need to argue he was in fact never self employed etc.

c)Does he have a wife/other family member who is a qualified person some other way?

3. It is important to note that an A8 national who works for 12 months in registered employment is not thereby exempt from the right to reside test and free to claim "is or jsa if needed". Rather such a perosn is in the same position as a French, German or Dutch (etc) national. The key question on a claim for Income Support by such a person is whether they retain their worker status following that claim (which they could do if it was made due to temporary incapacity as seems to be your case).

It seems to me that (in the absence of an answer to 2(c) above etc) then your client will need to succeed on one of the following:

A) He was never really self employed. He did his 12 months work before accession and so was not an A8 national requiring registration. He claimed IS on basis of temp. incapacity and has thereby retained worker status.

B) He was really self employed and has not lost this status by his short stint in actual employment as a worker (tricky- not sure this has really ever been looked at). He therefore retains self employed status and a right to reside that way directly under the Residence Directive.

Sorry if this is not clear- as I say happy for case to be referred

thanks for the help Martin


he apepars to ahve remained self employed as he was sub contracted when working in 2005. i should have made that clear.

however not really so sure inital period was exactly as he has described it.. we are currently checking into this.

once we know we will consider the appeal stuff

sorry for late reply been off and didn't motice that you had posted