Forum Home → Discussion → Residence issues → Thread
Jobseeker status preventing a derivative right to reside
Has anyone come across this situation? Our clients are Polish, married couple with children, have been in the UK for several years, but on current patchy record no permanent R2R. A year ago, the husband claimed and was awarded JSA on the basis of “primary carer” of a worker’s child in education, so no GPOW, and entitled to Housing Benefit. He found work then lost it. His partner has now claimed and is being paid JSA for the couple, but no right to Housing Benefit. She has a R2R as a jobseeker, and is therefore an “exempt person”. So she can’t derive a right as a primary carer nor can he as he shares equally the responsibility for the child with someone who is an exempt person. (Reg 15A (7) of Immigration Regs. The result is that they are receiving JSA and Child tax credits, but no Housing Benefit, and face eviction.
So there are the following possibilities: (a) She waits until her GPOW, which she will likely fail. She then reclaims JSA and HB on the basis of her derivative rights. and is not subject to GPOW because she is not a jobseeker
(b) She ends her JSA and either one of them claims JSA and HB on the basis of their derivative rights (but surely the one who does it becomes a jobseeker as soon as they meet the criteria for claiming JSA?)
(c) She gives up her JSA and her husband, who has a medical condition, claims ESA on the basis of derivative rights.
There may be other options (for instance we might argue her husband’s right to ESA or JSA on the basis of retained worker’s status, ifthe gap between his last work and his claim is not too long) but this may well involve an argument with DWP and the Local Authority and an appeal.
Have I interpreted the rules correctly and what do people think is the best and simplest approach?