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Permanent R2R for EU National and new R2R rules for JSA
Hi all
Got a case of an EU national, here since 1996, worked for 8 years of that continuously, then period of JSA and studying. Went to Nigeria to find possible work - intention was to find the work then return within 3 months before going back out to actually work. Booked return tickets within 3 months.Did not work out, then caught malaria, then family member died, then had to raise money to but a new return ticket. Away for total of 11 months.
Refused JSA on his return due to new HRT rules.
Thinking of challenging this - don’t think his story quite hangs together, also he gave up accommodation before he left which is not helpful. But he did not move any possessions to Nigeria or close any bank accounts here.
So rather than argue he never lost his habitual residence in the first place, I thought of permanent R2R through 5 plus years of work, only been out for 11 months so would not have lost it.
Just called to do MR, told by DWP that would not work as test applies to UK nationals too.
Good point - had not thought of that. Also I guess the test is one of habitual residence not right to reside?
Must admit I have not read the Regs and am getting into a confusion - I thought this only applied to EU Jobseekers whose only R2R was initially as a jobseeker (i.e had never worked in UK).
So I guess I am asking;
1. Would a permanent R2R trump the new rules for an EU national?
2. How does the test apply to returning UK nationals if it was meant to target new EU jobseekers?
Many thanks.
EEA iMMIGRATION rEGS 2006 7,8 & 15A
sEE: http://www.legislation.gov.uk/uksi/2006/1003/contents/made
Permanent right to reside “trumps” being a job seeker in one way, which is that you only need one R2R to satisfy the habitual residence test. If you have a permanent R2R you don’t need an additional R2R as a job seeker. But that is academic: unless you are exempt from the second part of the HRT - the factual requirement to be habitually resident - you still need to satisfy that test. Permanent R2R under the five year rule does not make you exempt from the factual habitual residence test. The three-month habitual residence requirement in JSA from 1/1/14 applies to all claimants irrespective of mationality or EU economic status. So if this claimant’s habitual residence was broken by his sojourn in Nigeria, he is starting all over again with a clean slate and will have to serve out three months before he can get JSA.
That’s where the focus of any MR and subsequent appeal should lie - whether he is resuming a pre-existing habitual residence or whether he ceased to be habitually resident here while he was in Nigeria. If I could draw a Venn diagram in this thread it would have the left hand circle labelled “Permanent R2R unbroken - absence less than two years” and the right hand circle labelled “absence long enough to break habitual residence in UK”. DWP are saying those circles overlap and he is in the overlapping zone. You are saying either they don’t overlap, or if they do he is to the left of the overlap because he doesn’t fall in the right hand circle at all.
Many thanks! Got Venn diagrams in my head now….
- whether he is resuming a pre-existing habitual residence or whether he ceased to be habitually resident….. “absence long enough to break habitual residence in UK”.
Cases of this type makes you worry, how long, is long enough for a break in HR AND when you return, does Swaddling not bite right away? (Forgetting the reason of absence for a minute as there is no “appreciable period” of residence under EU law in such cases). I guess it will a case by case thing but I can only see more of a blanket type approach, from the DWP, coming our way, and in your particular case the claimant left the EU completely.
No Swaddling does not apply here. That was concerned with someone who returns to their state of origin after working in another member state. But the OP’s case involves someone re-establishing residence in the EU after living in a third country. I think that is a major distinguishing factor
No Swaddling does not apply here.
Quite right, too focused on the problems of returning UK citizens, apologies.