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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Retaining worker status pre-residence directive

AndreaM
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Debt team - Citizens Advice Southwark

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I have a quite a few European passport clients now who have been getting means-tested benefits under TP rules which have now stopped for some reason, and they want to reclaim. These clients usually stopped work and went on continuous benefits well before 2006 and have no EU family members from whom they could have derived a r2r as dependants
.
From what I understand, if they were residing in the UK in accordance with EU law as it was pre Directive 2004/38/EC, they could have acquired permanent residence in or after the coming into force of 2004/38 in 2006.
Have been trying to work my way through the legislation repealed by 2004/38/EC , but not got very far.

Does anyone on the forum have any reference to any publication (preferably online) that provides a summary of the old EU law about retaining worker status?  Is there anything helpful in any of the ECJ cases?

One question that particularly bothers me is whether there was the need to have a valid EU residence permit in order to retain worker status.

And if I have identified & understand the old legislation for permanent incapacity correctly, i.e. Council Directive 90/365/EEC, then this would require the person to have been self-sufficient and have sickness insurance other than NHS? 

Edmund Shepherd
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Tenancy Income, Royal Borough of Greenwich, London

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I don’t have much time to have a good think about this for you, but does this link help?:

http://www.cpag.org.uk/content/permanent-right-reside-lassal

AndreaM
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Debt team - Citizens Advice Southwark

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Thanks, Edward.
I am not sure whether my clients would not have lost the Lassal right sometime between end of work and 2006, if they were not covered by any of the old EU regulations (ECJ Alarape case).  The commentary in S & M Vol II page 351 to 353 seems to suggest that the Lassal should not be lost, but I am not sure whether this would get past the DWP or a tribunal.

chacha
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Benefits dept - Hertsmere Borough Council

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AndreaM - 28 August 2015 12:11 PM

I am not sure whether my clients would not have lost the Lassal right sometime between end of work and 2006,

I’m not quite sure how they have lost the benefit/s you have stated but see Para. 6(4) of Sch 4 of Immigration(EEA) Regs 2006.

Permanent R2R could be lost if you ceased to be a “qualified Person ” for at least 2 years after you got the permanent R2R. So, if they did lose it prior to the directive then it’s lost. If they didn’t lose prior to the directive, then they still have permanent R2R unless they have left the UK for 2 years since then.

(4) Any period during which P carried out an activity or was resident in the United
Kingdom in accordance with sub-paragraph (2) or (3) will not be regarded as a period
during which P carried out that activity or was resident in the United Kingdom in
accordance with these Regulations where it was followed by a period–
(a) which exceeded two consecutive years and for the duration of which P was
absent from the United Kingdom; or
(b) which exceeded two consecutive years and for the duration of which P’s
residence in the United Kingdom–
(i) was not in accordance with sub-paragraph (2) or (3); or
(ii) was not otherwise in accordance with these Regulations.

 

AndreaM
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Debt team - Citizens Advice Southwark

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Thanks for your input, Chacha.
I have not done any complex r2r for several years, so I am probably well out of date.
I thought it was not possible to acquire a permanent right to reside before coming into force of the Residence Directive.  And if someone worked for 5 years or more, but stopped work in the 1990s,  they would then need to show that they had a right under one of the old provisions replaced by the Residence Directive before they could acquire a permanent right to reside.  Or is this wrong?
(The clients I am dealing with now lost means-tested benefit because of capital rule.)

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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While no-one could actually have a current permanent right of residence under the five year rule before it existed, that is academic because the rule exists now.  What Lassal and Dias are telling us is that the five year rule applied from 30/4/06 to people who would have earned a permanent right of residence under that rule if it had existed before 30/4/06, as long as there was not a two-year period before 30/4/06 during which they were absent from the country and/or did not have a current right of residence under the rules as they were at that time.

So if one of your clients worked from, say, 2000 to 2005 then left the job market (perhaps to care for a child), they instantly had a permanent right of residence from 30/4/06 upon the coming into force of that rule.

But if the client worked from 1997 to 2003 and then ceased to be economically active, they did not have a permanent right of residence upon the coming into force of Directive 2004/38/EC on 30/4/06 because their period of legal residence had ended more than two years previously.

Make sense?