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

GPoW Assessment for EEA nationals asserting a right to reside other than jobseekers/retained workers

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BrianAIRE
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The AIRE Centre, London

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Hi all,

Been doing casework at The AIRE Centre for a month now, and have been tracking this forum for a while but this is my first post.

I’m writing because I encountered a novel case last week of an EEA national who has a right to reside as a permanent resident here in the UK, yet who was asked to do a Genuine Prospect of Work assessment exactly six months after he started claiming JSA. I’ve asked around, and spoke to another adviser, but we’ve not heard of cases of UK nationals being asked to do similar assessments. The other adviser has however been approached with cases concerning EEA nationals asserting a right to reside other than that of a jobseeker/retained worker.

I know it is early days yet (with GPoW assessments having been conducted for six weeks as of today), but I wanted to draw upon Rightsnet’s collective experience to ask whether:

(1) you have/know of cases of UK nationals being asked to do the Genuine Prospect of Work assessment after six months, and

(2) you have/know of cases of EEA nationals who are not claiming JSA on the basis of a right to reside as a jobseeker/retained worker being asked to do the Genuine Prospect of Work assessment after six months. So, for example, such EEA nationals might be family members of workers here, or permanent residents, etc.

It would also be interesting to know what the clients’ experiences are, and whether evidentiary standards are lower than “compelling evidence” for UK nationals/EEA nationals who are not jobseekers/retained workers.

—-

I also wonder whether you would agree with my view of the current legal position, set out below:

My own opinion is that the recent changes to legislation (specifically, the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013) should only apply to EEA nationals asserting a right to reside as a jobseeker or retained worker after six months of them claiming JSA, and leave the position unchanged for EEA nationals asserting other rights to reside and UK nationals.

This is because the Amendments change Regulation 6 to add the following paragraph:
(7) A person may not retain the status of a worker pursuant to paragraph (2)(b), or jobseeker pursuant to paragraph (1)(a), for longer than six months unless he can provide compelling evidence that he is continuing to seek employment and has a genuine chance of being engaged.

but the Amendments do not include provisions imposing a GPoW test on those asserting a right to reside on other bases than retained worker/jobseeker.

I believe my view is backed by
(1) the Explanatory Memorandum to the legislation, which states at para 2.2 that “The Regulations make a number of changes to the 2006 Regulations relating to ..., the circumstances in which jobseekers and involuntarily unemployed workers are entitled to a right to reside…”
(2) The DWP’s own DMG 15/14 para. 2, which notes that “This paragraph will not apply to anyone with a right to reside other than as a jobseeker or person retaining worker status”
(3) HC Note SN06889 on “Measures to limit migrants’ access to benefits” which states at page 12 that “There are therefore three changes [caused by the new legislation]: [The first two of which relate to retained worker status, and the third of which creates the GPoW assessment for those asserting a right to reside as a retained worker or jobseeker for more than six months]

Under EU law [the Antonissen judgement], Member States are in principle allowed to “require EEA nationals who enter in search of employment to leave the territory of that State if he has not found employment there after six months, unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged”. However, I believe Antonissen arguably applies only to new entrants who are jobseekers, rather than those who have entered some time ago and have established permanent residence, and does not authorise the imposition of such a high evidentiary standard as “compelling evidence”. What are your thoughts?

—-

Thanks in advance for your responses, which will help us all build a more complete picture of how the GPoW assessment is being used.

[ Edited: 18 Sep 2014 at 04:51 pm by BrianAIRE ]
past caring
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Hi Brian,

My bet is that it is simply another case of DWP/JC+ staff being poorly trained and not understand the new provisions.

My colleague has a client who was called for a GPoW interview a week ago - client is of Somali background but has ILR. Colleague is still waiting on written response as to why he was called for interview….

matthewjay
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I agree that the GPoW test should only be applied to people without some other right to reside. The test only applies to those who have entered the UK to seek employment or are seeking employment having resided as a worker, self-employed person, self-sufficient person or student - this is the specific status of ‘jobseeker’ in the Regulations - or who have retained worker status under art 7(3)(b) or (c). See DMG Memo 15/14 (available https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/324534/m-15-14.pdf).

The operative part of Antonissen reads:

It is not contrary to the provisions of Community law governing the free movement of workers for the legislation of a Member State to provide that a national of another Member State who entered the first State in order to seek employment may be required to leave ... unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged.

It is very much in terms of a person who moves to look for employment, i.e. a newcomer.

As for people with the permanent right to reside under article 16: this right is enjoyed without the limitations imposed by Chapter III of the Directive, namely economic activity / self-sufficiency (where we also find the art 7(3) status retention conditions).

As yet, I don’t think we’ve had any GPoW cases - certainly none that have come to me.

Cordelia
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I’ve got one.  A Polish citizen who has lived here for over five years, during which time she was under 21 and the child of a worker.  I’ve seen mum’s worker registration documents and it all looks ok to me.

The young lady claimed JSA early this year, and was given a GPoW test six months later.

Its concerning that despite the government boasting about their new improved right to reside questions they appear to have missed her permanent right of residence.

She is actually a lone parent with a three year old herself, so should have been on Income Support all along…

BrianAIRE
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Thanks for all your responses so far, and keep them coming.

Please could let me know the outcome of your cases, if you can, and I will do the same for my client. I advised him to call in or write in to the DWP on the grounds of mistake or official error, and expect to hear from him soon.

SHowells: I am inclined to agree that poor training/implementation could be part of the reason. I do wonder sometimes whether the DWP incentivises getting correct decisions, rather than simply decisions which reduce claims on the public purse.

matthewjay: Thanks for your input, and I very much agree with you.

Cordella: Thanks, and please could you let me know if you succeed in asserting PR status, and if your client is asked to provide “compelling evidence” if she attends the GPoW test before you shift her to Income Support, as I am sure you will?

Please keep sharing if you have such cases arising, the evidence your clients are asked to provide, and how they are eventually resolved.

I am especially interested to know if UK nationals are being subjected to the same treatment.

Cordelia
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I was trying to keep it simple but its not.  She had already claimed Income Support and been refused it by the time she contacted me.  I am not entirely sure what the outcome of the GPoW was, the letter from JSA said her claim ended “because you have claimed another benefit” but she says she had been told she would not qualify for JSA and this prompted the IS claim.

I’ve asked for a mandy on the IS and HB decisions.  I’m not going to challenge the JSA / GPoW decision as I think IS is a more appropriate benefit for her.

I’ll keep you updated.

BrianAIRE
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Hi all,

Just an update on the resolution of my previous client’s case, he went for the GPoW assessment and had his JSA stopped on the grounds of not having compelling evidence of a GPoW. However, he had his JSA subsequently restored after he complained that he should not have been subject to the assessment on the grounds that he was a permanent resident, and that he was entitled under Art 24 to equal treatment with similarly situated British nationals claiming JSA.

While we achieved a happy resolution in that case, imagine my “surprise” when another case landed in my inbox, involving a permanent resident who had been working in the UK between 2003 and 2010, who had been asked to go for a GPoW assessment…

I am currently planning to write to DWP with a number of FoI requests, including: what guidance they are using to evaluate who is asked to do the GPoW assessment, whether this guidance is the same for UK nationals, and statistics on how many people have been asked to do the GPoW assessment, how many passed, how many subsequently turned out to have rights to resides other than the targeted rights to reside (jobseekers/retained workers). I will probably not do them all in one FoI request due to the costs made available per request.

Your suggestions for other FoI requests that may be helpful are welcome.

Please keep sharing your experiences and stories, and I will do likewise.

Peter Turville
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Brian

from my post as requested (sorry only noticed yours after the event!):-

This case is shared for illustration of issues that might arise for other claimants.

Our client who is a lone parent EU national who has been in UK (originally with her husband) since 2004. She has not lost her continuity of residence since.

In Oct 12 she made a claim for IS and a tribunal found that she had a R2R under I(EEA)Reg 15A(3)&(4) - derived R2R as primary carer of a child - a decsion which was conceeded by the DWP on the day of the hearing by an additional submission!

In Feb 14 she was required to claim JSA due to age of her youngest child.

In June she was required to attend a GPOW interview and entitlement to JSA was ended by a decsion of 5/9 as DM concluded she did not have a GPOW.

In our opinion I(EEA)(Amend) regs 14 SI 1451/2104 - which amends I(EEA)Reg 6 - only applies to claimants with ‘retained worker status’ or are ‘jobseekers’. The note to DMG Memo 15/14 para 2 confirms this is the DWP’s interpretation of the amended regs.

You can all imagine the entertainment I have just had drawing this to the attention of a DM who insisted the GPOW test applies to all EEA JSA claimants.

All the usual avenues being pursued!

 

matthewjay
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BrianAIRE - 29 October 2014 04:31 PM

Hi all,
I am currently planning to write to DWP with a number of FoI requests, including: what guidance they are using to evaluate who is asked to do the GPoW assessment, whether this guidance is the same for UK nationals, and statistics on how many people have been asked to do the GPoW assessment, how many passed, how many subsequently turned out to have rights to resides other than the targeted rights to reside (jobseekers/retained workers). I will probably not do them all in one FoI request due to the costs made available per request.

Your suggestions for other FoI requests that may be helpful are welcome.

Certainly some interesting questions, though I would be suprised if they have data for the last one. Having done many similar requests, I can imagine that their response will be something along the lines of “We have no way of knowing whether someone subject to the GPoW test subsequently turned out to have a RTR on some other basis without manually going through all the files - and this will take us well above the statutory cost limit.” It’s probably not something which is coded, though I’d happily be wrong on this.

It would be interesting to know how many MR requests there have been against negative GPoW decisions, how many were revised, how many have gone to Tribunal… Though this still wouldn’t give a proper picture as it’s still early days and GPoW decisions might not be challenged through this route through ignorance, being out of time, deciding to do something else and not bother challenging, or whatever.

Peter Turville
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Further to post 7 above I have now spoken to the contact centre (to confirm the MR application has been received) and was advised (again) that the GPOW test applies to all EEA nationals claiming JSA.

It seems to me DMs and other staff do not understand the difference between a jobseeker (anyone claiming JSA) and a ‘jobseeker’ for the purposes of the I(EEA)Regs. Nor do they understand that an EEA national claiming JSA can have a R2R other than as a ‘jobseeker’ or retained worker status.

Can we assume they are applying the GPOW test to all EEA nationals regardless? What training have they had to enable them to identify claimants to whom the GPOW does not apply?

Daphne
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I will raise this with operational stakeholders and see what they reply…

1964
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It’s certainly the impression we are getting.

chacha
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Peter Turville - 31 October 2014 09:53 AM

Further to post 7 above I have now spoken to the contact centre (to confirm the MR application has been received) and was advised (again) that the GPOW test applies to all EEA nationals claiming JSA.

It seems to me DMs and other staff do not understand the difference between a jobseeker (anyone claiming JSA) and a ‘jobseeker’ for the purposes of the I(EEA)Regs. Nor do they understand that an EEA national claiming JSA can have a R2R other than as a ‘jobseeker’ or retained worker status.

Can we assume they are applying the GPOW test to all EEA nationals regardless? What training have they had to enable them to identify claimants to whom the GPOW does not apply?

If I had not seen it I would not have believed it…....

Came across a Russian national today, HB had been terminated as JSA was awarded as a Job seeker, yes, you read that right, a “Russian” national, but JSA now terminated after GPOW application.

The guy had limited leave to remain and has now been granted indefinite leave. I don’t know what to say.

BrianAIRE
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Dear chacha,

Am equally incredulous to hear that, and have included a specific question for statistics on the number of people on ILR asked to do the Genuine Prospect of Work assessment.

I have just sent out three FoI requests, after a friendly review by a good lawyer. I don’t expect answers to all my questions on statistics, but thought that there would be no harm trying.

I attach the links to the FoI requests below in case any of you want to follow them. I may not be in the UK at the time when the requests are answered, but hope someone else may take this forward then.

FoI Request on Guidance, Training and Safeguard measures for Genuine Prospect of Work assessments
https://www.whatdotheyknow.com/request/re_guidance_training_and_safegua?nocache=incoming-584674#incoming-584674

FoI Request on the Statistical Breakdown of people asked to do the GPoW assessment
https://www.whatdotheyknow.com/request/re_statistical_breakdown_of_peop#incoming-584670

FoI Requests on the Statistical breakdown of people whose JSA was stopped after their GPoW assessments
https://www.whatdotheyknow.com/request/re_statistical_breakdown_of_peop_2?nocache=incoming-584678#incoming-584678

chacha
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BrianAIRE - 14 November 2014 05:06 PM

FoI Request on the Statistical Breakdown of people asked to do the GPoW assessment
https://www.whatdotheyknow.com/request/re_statistical_breakdown_of_peop#incoming-584670

FoI Requests on the Statistical breakdown of people whose JSA was stopped after their GPoW assessments
https://www.whatdotheyknow.com/request/re_statistical_breakdown_of_peop_2?nocache=incoming-584678#incoming-584678

The response to the statistical breakdown is quite quick, and obvious, citing FOI Act 2000 http://www.legislation.gov.uk/ukpga/2000/36/section/22 and taking the opportunity to let you know they will not give up the data that easily (The next step will be s22(1)(c) should you declare unhappiness at the response).

In my view, the data will be held till the damage has been done, and the information becomes useless (Call me cynical).

Well, I suppose you may receive the information for your other request.

Cordelia
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An update on my client.

Income Support accepted that she does have a permanent right to reside and put her claim into payment.  Housing Benefit is also back in payment.

So all’s well that ends well.