Hi there,
On the business of speaking English, an automatic barrier to JSA based on that requirement would to my mind compromise the intention of Article 39 of the Treaty, since (guess what!) not all EU migrant workers speak English. Article 14(4)(b) of the Residence Directive guarantees the right to be in the Host State as a jobseeker ('genuine chance' criteria), but makes no reference to having to speak the language of the Host State. Have a look at R(IS) 8/08. Here is a clip from para 6, which might be helpful, because it suggests language problems will only compromise claims in a 'relatively small' number of cases:
"...I accept that some people may be available for work and be actively seeking employment but not have a genuine chance of being engaged because, for instance, they have an insufficient command of English or Welsh for the type of job they are seeking or, perhaps, they have settled in an area where there is a particularly high level of unemployment and a dearth of jobs, so that the requirement to have a genuine chance of being engaged can be an additional hurdle. However, that additional hurdle will not often be significant and I suggest that the proportion of cases in which it will be right to reject a claim for jobseeker’s allowance on the ground that the claimant does not have a right of residence rather than on the ground that the claimant does not satisfy one or more of the conditions in section 1(2) of the Jobseekers Act 1995 – because, for instance, he or she is not genuinely available for, or is not actively seeking, employment – may be relatively small. It is true that a person who is not genuinely available for, or is not actively seeking, employment may not have a right of residence, but, in such a case, it is not helpful to reject the claim solely on the ground of the lack of a right of residence without reference to the underlying ground that would apply to British citizens as well as other EEA nationals."
I think JC+ has to remember that claiming JSA is not part of the citizenship test.
So far as the domestic JSA rules are concerned, you point out that JC+ have given two grounds to resist the JSA award. Firstly, lack of previous efforts to find work (previous to the claim, I think you suggest). Thats mad - a claimant should only be judged at the state of play at the time of the claim. See para 21120 of the DMG, which seems to confirm same. The second ground is language. I have had a brief scan of the DMG, but cannot see a specific reference to language skills. Para 21632 onwards discusses reasonable steps you should take, and 21634 lists typical factors to take into account. 'Skills' are referred to, but not language specifically.
I suppose common sense says that a person is likely to be less employable if they can't speak the lingo, but is that a deal buster? I do not have a final answer. However, your clients steps to learn English must be relevant.
Good luck with this,
Steve
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