I would really appreciate some input into a rather complicated appeal. I am working with a Lithuanian who came to the UK in 1997. He applied for aslyum and was eventually refused and after appealing was in the process of going for asylum again when Lithuania joined the EU.
He has worked on and off (sometimes self-employed but never for longer than about 8 months) and hasn't worked in the last 3 years. He has not registered for the Workers Registration scheme and when he applied for JSA he was turned down. On the face of it that it would straightforward that he can't get JSA but at an appeal is the fact that he has been resident in the country for 10 years relevant? Or the fact that he was self-employed and ceased activity?
Also I have previously argued at appeal that refusal of benefits to A8 workers discriminates against them due to EC regs 1408/71 which basically guarantees equality of treatment to all members. This was dismissed by the chair who said it had been ruled out by CH/3314/2005. Any Comments on this?
Thanks in advance for any help with this complicated matter.

WAS HE A WORKER REQUIRING REGISTRATION?

This breaks down as follows:

HAD SOME OTHER FORM OF LEAVE ETC WITH NO RESTRICTION ON WORKING?

A person who has leave to enter or remain in UK on 30/04/2006 without any restriction on his right to employment is not an accession state worker requiring registration (and hence would be in the position of any non A8/A2 EEA national-ie can claim JSA)- see Reg 2(2) of the Accession (Imm and Worker etc) Regs 2004.

The difficulty you face is whether the above applied to your client. It sounds like he was an asylum seeker who had the permission to work (which is no longer given). The question might be whether he was on temporary admission or whether he had some other leave extant at the time he made his application for asylum (which as far as I know he would continue to be treated whilst the asylum process ongoing).

The reason the temp admission/other leave issue is important is as far as I know a temp admission is not leave under the 1971 Act (which is what the above Reg 2(2) requires) and so your client could not have the benefit of it if this was his circumstance- really this an immigration point so maybe other poster could help more.

SELF EMPLOYED?

Self employed people get their right to reside that way rather than through the worker registration route. They not required to register (there are no derogations from the self employment treaty provisions or rights for A8 nationals).

That seems a pretty fruitful avenue to explore.

There may well be other routes/arguments- that is just for starters.

Thanks for your response.
Could you steer me towards any guidance re. self-employment. Also, could anyone clarify how 'workers' satisfy the habitual reidence test.
Thanks.

I think the difficulty with this man is that he does not have 'worker status' under the EU Citizens directive and so he can still be regarded as a 'person from abroad' with no right to reside.

I am handling an income based JSA appeal for a Lithuanian national who had worked for over 1 year in the UK but who never registered under WRS. Refused JSA under right to reside rule specifically because he did not register under WRS. I am arguing that he has worker status under EU Citizens directive and that failure to register under WRS cannot detract from that status. Any similar cases/views?