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Forum Home  →  Discussion  →  Income support, JSA and tax credits  →  Thread

Another permanent residency query…IS, JSA & HB!

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Redscooby
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Hello everyone

I have my first client who I met with yesterday who needs urgent help disputing his R2R.  His HB stopped on 04/08/14 as he was a “person from abroad”.  He has been served a NOSP for rent arrears.  On 04/08/14 he claimed JSA and his claim was accepted as he has right to reside as an EEA National (limited to six months).

He lives with his mother who joined him in 2005 from Greece.  They are both Greek.  She was not meant to stay but did (details vague) and he supported them both.

He came to the UK in July 2002 to study at the London School of Fashion; he obtained a degree in 2005.  During his degree he worked at a spa with hours.  He did this work until July 2006.  From October 2006 until July 2014 he claimed CA & IS for looking after his mother.  He says that she gets IS & DLA but don’t yet have the date that this started.  He did some part time work - cash in hand which he didn’t declare to DWP or CA (need more info on this).

He decided to stop his claim for CA & IS in July 2014 to get on the enterprise allowance training so he could become self employed; he was told that he had to be on JSA so ended his claims and as a result his HB stopped and he has 6 mths JSA from 04/08/14.

From what I have read - his self sufficient studying from 2002-2005 will count ONLY if he had comprehensive sickness cover?  I am waiting to hear from him on this.  If he had it then this is good news but if he didn’t could you argue that he was covered by the reciprocal agreement within the EEA? 

How would he have passed the R2R test for IS in July 2006 - as a work seeker from his part time-full time work in the spa?

How would his mother have claimed means tested benefits in 2006?!

If his student years count towards his permanency, he would have one year when he was on CA & IS so to speak (2006-7) so would the part time work that he did not declare count him as being a worker? 

Finally for his HB & JSA now, could you argue that he retained worker status from the undeclared work? 

I don’t know if he has a realistic chance of permanent residency.  His only option is to find work so he can pay his rent.  He wants to become self employed so should he do that now?  I don’t know how best to advise him.

 

matthewjay
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From what I have read - his self sufficient studying from 2002-2005 will count ONLY if he had comprehensive sickness cover?  I am waiting to hear from him on this.  If he had it then this is good news but if he didn’t could you argue that he was covered by the reciprocal agreement within the EEA?

It would need to be an agreement with Greece specifically. As far as I know, there isn’t one. Otherwise it would probably need to be private sickness insurance. You might want to check whether he had sickness insurance as part of some other insurance scheme (e.g. travel insurance).

However, you say that he worked part-time whilst studying. This means he was a worker and does not need sickness insurance. The number of hours doesn’t really matter too much. Assuming he started work straight away, those four years should count.

How would his mother have claimed means tested benefits in 2006?!

Possibly as the dependant direct ascendant relative of a worker: article 2, Directive 2004/38.

How would he have passed the R2R test for IS in July 2006 - as a work seeker from his part time-full time work in the spa?
...
Finally for his HB & JSA now, could you argue that he retained worker status from the undeclared work?

I don’t know if he has a realistic chance of permanent residency.  His only option is to find work so he can pay his rent.  He wants to become self employed so should he do that now?  I don’t know how best to advise him.


Your work does not need to be declared to count as genuine and effective. Arguably, it doesn’t even need to have been legally performed: CE/2190/2011: http://www.rightsnet.org.uk/briefcase/summary/whether-eea-national-working-cash-in-hand-can-acquire-worker-status-and-con

Also, he wouldn’t count as a workseeker for any period during which he was actually working or retained that status.

I can’t see, however, how he could have retained worker status when he stopped working in July 2006. You can argue he was self-sufficient (pending the answer to the sickness insurance question) until October 2006. You could even try arguing he should be regarded as self-sufficient until July 2007 (to give you five years) as the answer to this question is subject to a proportionality review. However, given that his financial claims on the state looked likely to subsist for a long time, it would be difficult to argue this.

When did he work after he stopped working in July 2006? If you mean his declared work stopped in July 2006 and he immediately started undeclared work, you should be able to add these two periods together to get to his five years. I would argue that short interruptions to his work due to his caring responsibilities shoudl not defeat a continuous period of five years but this is a fact-sensitive question subject to proportionality.

If he is working undeclared now, then his HB should not have been stopped. Why did he stop his CA? Was that a requirement of the enterprise training?

And just one footnote: JSA is not technically limited to 6 months for EEA jobseekers. He will be asked to provide compelling evidence that he likely to be engaged but this is arguably an unlawful test. The Directive talks about ‘not less than 6 months’, and Antonissen said jobseeker status is enjoyed for a reasonable period of time, 6 months being not unreasonable. And the compelling evidence test does not appear anywhere in EU law.

Paul_Treloar_CPAG
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In terms of Matthew’s footnote, you might want to look at this article from our latest Welfare Rights Bulletin Residence rights and wrongs by Henri Krishna in our Scottish office which offers some further thoughts on tactics and potential challenges on this issue.

Redscooby
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OK, I’ve had a few docs emailed to me from the client and his history is as follows:

Arrived August 2002.  Uni started Sept 2002 & finished summer 2005.

He worked from 15/11/02 to 30/05/03, 30/12/03 to 24/01/04 & 23/08/04 to 15/04/06.  He claimed CA & IS from October 2006.

I’m waiting to hear from the client regarding the undeclared work while on CA & IS and when this stopped.

He did not have any comprehensive sickness cover of any kind.

matthewjay
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Then it sounds like he doesn’t have a permanent right to reside and starting self-employed (or employed) activity right away would be the only way to establish any right to reside. Remember that he will have a RTR on the basis of being self-employed as soon as he starts establishing himself - even if he doesn’t start earning straight away and even if he isn’t doing this ‘full time’. And he would also have a RTR for IS & HB purposes. Paul’s link to the WRB talks about the minimum earnings threshold but for the reasons given therein, this shouldn’t really be a problem.

Redscooby
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So, he could register as self employed and go back onto CA & IS?  Is it enough to just register?

matthewjay
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He would need to actually start self-employed activity. I doubt registering alone would be enough as this is neither necessary nor sufficient for s/e activity to be considered genuine and effective. Registering is part of the process of establishing oneself but he would need to actually start setting up his business. E.g. putting out adverts, trying to engage clients/customers, getting his finances in order, making his product/developing his service. Whatever it is he needs to do to start his business (which could be something as basic as taking in ironing).

Redscooby
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I’m guessing that the gaps in his employment put an end to the permanent residency argument so all he’s left with is establishing his business which he can do.  In the meantime, he is unable to claim HB and IS.

matthewjay
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Unless the gaps were because he himself was temporarily ill (though even then it doesn’t look like five years), and unless I’ve missed something, yes.

Redscooby
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Thank you Matthew!

matthewjay
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Could he not claim CA again? Was this stopping linked to the training he was/is doing? I don’t recall there being a RTR requirement for CA.

Redscooby
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I’m going to check that now…

Redscooby
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The client can reclaim CA using the habitually resident in fact grounds.  What if we ask for this to be backdated so it becomes a continuous claim based on the wrong info he received from JCP telling him to stop both IS & CA.  Could his IS claim also be backdated?

matthewjay
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CA can be backdated up to 3 months without needing any reason, assuming he met the qualifying criteria throughout that period: CPAG p 545. I don’t think there are special rules for backdating further than this where someone stopped claim as a a result of faulty information from the DWP but certainly a complaint and a request for compensation is an option.

For IS, there are specific circumstances laid down in regulations in which you can backdate for up the 3 months. I’m not quite sure if your client fits them. Again, he would need to have met the qualifying criteria, including the RTR criteria, throughout the period to which you want to backdate.

geep
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I’m re-pasting this question from another post as it fits here better. The query below stems from a comment made by a local authority employee who said that 5 continuous P60s would be acceptable to them as proof of someone having a permanent right to reside:

“If a person can produce 5 P60s for five continuous years, does it guarantee that they have a permanent right to reside? If so, is it possible for someone to get a P60 despite doing very little work during one tax year? I was thinking of cases where someone earned enough money to pay NI for two weeks, but didn’t pay any more NI than that. Would they still get a P60 and be able to use that to prove a qualifying year towards the 5 qualifiying years that they need to gain a permanent right to reside? Or is the minimum NI threshold calculated over a year rather than on a week-by-week basis?”

matthewjay
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Haven’t come across that situation myself but my instinct is that having 5 P60s would not in itself mean a person has a permanent RTR. Whether a person has any RTR under EU law is an autnomous EU concept. Anything which defines what a person is according to domestic law would not necessarily help in answerng the question of whether a person has a RTR in EU law.

That said, how someone is classified according to domestic law could be indicative that they might have a RTR and could be used as evidence for it. The fact that someone has 5 P60s indicates that over that 5 year period they had worked. But, for the reasons you give, is not conclusive. My undesrtanding of P60s is that you should get one in the circumstances you describe - i.e. working just enough to pay NI then not working at all. Such a person would not have a permanent RTR if they did not have some other RTR during the periods they were not working.

I don’t know what the situation would be where the LA accepts 5 P60s in these circumstances, thinking the claimant had a permanent RTR, and then later changes its mind.