Do you poss have any knowledge , experience re the right to reside and Habitual residency test. I have just had a portuguese lady who is 25 weeks pregnant and has been turned down for Is, as she is not seeking work, and therefore has no right to reside. She has lived here for 3 years and has two children already- second child born here. Her partner left her in August and she claimed IS on the 1st September. She was working up till January 08. .

It has now been suggested that she applies for jsa , but this will be difficult bec baby due in 15 weeks. We will be appealing against the IS decision, but I am not sure on what grounds - any suggestions ?

Also if she was awarded JSA and for future reference any other job seekers frm the EU , is there a time limit to how long they can claim JSA.

Further to above the oldest child is in school, and my client is close to eviction. Help and advice desperately needed.

R2R is a complicated issue as you can se from the posts! Please clarify why did your client give up work in January? Is she married? Is the partner an EU national who is working? Did her elder child enter school whilst she was working? Is she in any ill health due to her pregnancy?

In practice, once the DWP have nade a decision to refuse IS due to R2R, you can lodge an appeal ( if you have grounds - there is little point unless you do ) but the client will have to claim JSA in order to protect her current CB, CTC and HB claims, as well as to be paid the £60.50 pw actual benefit. Even if the client has grounds, an appeal will take months.This is not impossible for a pregnant client, though of course it is not exactly desirable - but the alternative is destitution and eviction. I have had to advise pregnant clients to do this before, and to avoid being routed again to IS by Jobcentre Plus when the client is within 11 weeks of birth - otherwise they will wait another 2 months for the same IS decision to refuse under R2R. There is no reason why a pregnant client who is in good health cannot satisfy a jobseekers agreement - single paremts have to be available for 16 hours pw only.

Thanks for your reply. Not sure why she gave up work in jan but her and her partner claimed jsa in jan till Aug when he left . He is also an EU national, not working at present. The older daughter came to uk and started at school when they were un employed. She has had no ill health during pregnancy, except for current stress. She has now claimed jsa , but Job Seeker staff in the Job Centre say she wont get it bec of the pregnancy.

Your client may have problems here - clearly she was a worker, but she may not have retained her worker status by claiming IS rather than JSA. Also if she was not married she cannot ( to the best of my knowledge but I may be wrong here) claim family member rights once separated - sounds like this wouldn't help anyway if he is on JSA and not IS himself. Also no Baumbast argument if the child entered education when neither parent actually working. CPAG handbook P. 1398 mentions EU directive 92/85 giving some protection but appears this argument is untested.

Your only option may be a proportionality argument under Art 18 - ie she has worked for 3 years, had to give up work temporarily due to pregnancy ( but this doesn't really square with her stopping work in January ) and will be able to return to jobseeking/ work at some time not too long after the birth. Is there no specialist organisation in your area who would take this on?

As for the DWP saying she cannot get JSA because of pregnancy - not so. The issue is whether she can satisfy a jobseekers agreement and it would be discriminatory to say that a pregnant woman cannot just because of pregnancy - in the same way that an employer cannot discriminate by refusing to employ a pregnant woman unless there are particular reasons to justify this. Also in the same way that a woman entitled to maternity leave can decide when to take her leave ( and work right up to birth if she wishes ), so with JSA - it is true that there is an entitlement to IS from 11 weeks before birth, but it does not mean that there is no entitlment to JSA. This is important for EU nationals who may have to keep their R2R by claiming JSA and not IS. Complain strongly if the DWP refuse to take a JSA claim, but make sure your client can satisfy a jobseekers agreement to be available for 16 hrs pw.

Sorry I can't think of anything more positive for your client.

Thank you for your help. She is now going to get some help from CAB who will be sign posting her to a Specialist Immigration Lawyer.

Hi.... got a similar case who is claiming JSA with baby due in Feb.... and I have just accepted as homeless and rehoused because she was being evicted... ... your client needs to apply as homeless...

Be careful also of her being persuaded to claim maternity benefit after the birth.... this will loose her R2R.... JSA and MA are conflicting benefits... she must continue to clim JSA .... During the week of the birth she can take a "holiday"... this is allowed,

The only way an EU national can claim income support is under sickness benefit for very temorary illness... pregnancy is not an illness.... EU ' can claim JSA for 6months and should then JSA should review the application... but they often forget.

forgot... she can get her JSA back daed to the day she claimed her income support...

I had thought about her asking for jsa to be backdated but thought perhaps the dwp would not be happy, thinking that she had changed from IS to JSA just so that she has the right to reside.. Will advise her to try though. Thanks