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 ![](images/wink.gif)
|