retained worker status (GPOW)

just a quick one, and looking for a quick MR on a GPOW

can EU nationals have “retained worker status” when having worked for over a year at any point during their (in this case, 15 years) stay in the country

We’ll look to secure permanent right to reside ASAP, but he needs money right now

thanks

An EEA national can retain their worker status when either in duly registered involuntary unemployment or when temporarily incapable of work. If the former, it is restricted to six months when that person was employed for less than one year, or longer if employed at least a year and that person can provide “compelling evidence” that s/he is continuing to seek employment and has a genuine chance of being engaged. The last point on compelling evidence took effect from 1.1.14.

So, it depends on why your client stopped work.

hi, thanks. I’m fairly sure securing RWS when having just finished work (involuntary unemployment) is achievable

the case here is that the, over 1 year of work, took place some 10 years ago, and am just wanting to make sure that this can still be used to this ends

thanks

Under EU Directive 2004/38, you retain your status as a worker if you are recorded as involuntarily unemployed and have registered yourself as a jobseeker with the relevant employment office. There is no time limit noted but the case of Antonissen is the authority on governments being able to impose time limits as to how long this situation maintains (i.e. at least 6 months). See Henri Krishna’s article for background to this Right to reside: when 3 equals 6

However, in addition to the above, under the Immigration (EEA) Regulations you must also provide evidence that you are seeking employment and have a genuine chance of being engaged; and either:

* have entered the UK in order to seek employment; or

* be present in the UK seeking employment immediately after having a right to reside as a worker (except if you retained your worker status on this basis), a student, or a self-employed or self-sufficient person. For someone who has worked for more than one year, the requirement to provide compelling evidence kicks in after 6 months of having retained workers status if you’ve worked for more than one year.

The European Economic Area (EEA) Regulations impose additional requirements for you to be able to retain your worker status beyond those required under EU Directive 2004/38. Therefore, someone refused benefit on the basis they do not satisfy the additional requirements of the EEA Regulations should challenge the decision on the basis that these are not requirements under EU law.

You can find more on these arguments in a paper drafted by my colleague Martin Williams, see the briefing here Kapow to the GPOW It’s unlikely to bring any speedy resolution for those reasons.

Some interesting comments in CIS/935/2013 on retaining worker status having worked for more than a year. In para 53:

“Under Article 7(3)(b) of the Citizenship Directive, there is no indication of the duration for which a person continues to be treated as a worker. My interpretation is that the period of retention of the status is open-ended though not forever more. I justify this in part by the provision in Article 7(3)(c) of the Citizenship Directive which limits the period of retention of the status to “no less than six months” where the period of employment is less than a year”

And in para 54:
“If a person falling within Article 7(3)(b) is able to retain the status of worker for no less than six months, then it seems to me to be eminently reasonable to conclude that there is no difficulty in a person retaining worker status under Article 7(3)(b) of the Citizenship Directive for a year in the absence of some intervening event which indicates that the person has withdrawn from the labour market entirely.”

So worker status is kept for an open ended period but not never ending period so long as the person does not withdraw from the labour market. Whilst Judge White found “no difficulty” with a period of a year, ten years could well be more of a problem, although the only reason there is a specific reference to a year in the decision is because the claimant in that particular case was signing on for a little bit less than a year.

This case was concerned with a decision from 2012 when we had no “GPOW” in the regs but since the regs cannot reduce rights provided in the directive it would seem that this precedent must still apply and be binding on tribunals.