RTR and Retaining Worker Status of Czech National.

All

I have a 20 year old client who has a one year old child.

At the moment, she has a RTR from her mother however, this will only last until December 2015 (her 21st birthday).

She has been here, with her mother, since 2002.

The issue I have is demonstrating a permanent RTR for the mother which client could then also get.

Mother was ill from Dec 2009 to Dec 2011 and claiming ESA.  She then claimed JSA before working again.

Apparently, she was awarded ESA for the above period on the basis of Article 12 (child in general education).

Whilst I am aware of Regulation 7A Immigration (EEA) Regs 2006 which would disallow the mother from retaining worker status whilst temporarily unable to work, the issue is, what is the effect of TG v Secretary of State for Work and Pensions (PC) [2015] UKUT 0050 (AAC) on this situation? 

The above determined that the extension of the WRS was unlawful between 2009 and 2011.  Does this mean that the mother is able to retain worker status during the period of illness?

Many thanks for the help and if anyone has any ideas it is greatly appreciated.

Assuming that worker status had actually been aquired before she became temporarily incapacitated, then yes.

What is the work history pre December 2009? And was it registered?

I also note that she was here from 2002 - two years prior to accession. On what basis? Worth thinking about this one, because it raises the possibility that the mother might, in any event, have been exempt from the registration requirements from the outset.

As far as I am aware, mother was working from Jan 2009 until her illness in Dec 2009.  Also, she has identified that she had the relevant WRS certificate. 

She did start work (from what she can remember) in approx July 2007 until September 2008 when her workplace closed.  I had considered that she was a ‘workseeker’ and therefore retaining status during this period however, she did not claim JSA as she was living with a partner who worked.

She unfortunately is not too clear about her status in the UK prior to accession though she did identify that she sought asylum in the UK.  She does not believe that she received any leave in the UK prior to 2004.

I had considered that, if she received refugee status or ILTR in the UK, she would therefore likely not be subject to the RTR but without evidence, I cannot see how I can pursue this aspect further.

I suppose I could use Kerr to get the SSWP to find this information in direction requests to the tribunal?

I am not sure that the appropriate use of Kerr is for speculative fishing expeditions - I think that it would require some positive assertion from the client as to her status in order to justify this and for the tribunal to look favourably on such a request.

And even with such a positive assertion - and assuming the client can no longer remember the details of the solicitor who dealt with any asylum claim - I think you’d be best trying to obtain the information via a request to the UK Borders Agency in the first instance. Kerr would come into play only at the point where your/your client’s attempts to get a response had hit a brick wall.

Likeliest scenario (I’ve had a few of these over the years) is that your client did have some sort of application with the Home Office (as it was then) and this was still undetermined at the point that the Czech Republic acceeded to the EU. And then remained undetermined as leave was no longer required. It’s not an avenue I’d consider pursuing without some positive indication from a client that some species of leave was actually granted.

I imagined that that would be the case…

I think I’ll pursue the issue re TG v Secretary of State for Work and Pensions (PC) [2015] UKUT 0050 (AAC) and retaining worker status in the grounds of appeal.

Thanks for the help and keep me updated if you have further ideas.

Cheers

Have you explored the circs of the partner and whether any RTR as a family member?

Yes.  I had considered that but no application here. 

I think the argument with TG should be interesting.

SSCS1 submitted and awaiting papers.

I see no reason why the decision to award ESA under Art 12 in 2009 could be revised in line with TG (i.e. as someone retaining worker status).

Have yet to look into that in particular due to time.

My understanding is that the DWP are likely to seek permission to appeal in TG v SSWP (permission refused by UT but Court of Appeal could grant….).

Given that, then to make things easier here are a few additional arguments:

Dependency after hits 21?

“Dependency of choice” is a possibility in order to remain a person who is a family member after age 21 and that your client is not 21 until December 2015 why don’t you ask the mother to set up a standing order giving your client say £50 a month or so? Client then counts as dependent as receives material support which contributes to the necessities of life etc (would be especially nice if client put that towards the gas bill or something).

As far as I can see such an arrangement would not be abuse given that benefit rates client is receiving are not adequate to live on (see extensive research on poverty etc) and so it perfectly legitimate to rely on a top up.

On “dependency of choice” see cases such as Lim (EEA dependency) [2013] UKUT 437 (IAC).

Think of the children
Interestingly, your client’s child still has a right of residence (through being the direct descendent aged under 21 of her grandmother who is working).

An additional argument would therefore be that the client, as primary carer of that child needs to have a right of residence as otherwise grandmother has her freedom of movement put into question as pressure to move back so she can stay with grandchild if primary carer not able to look after her- or pressure on her not to work etc if child left with her. See on this the similar argument discussed at page 320 under head [2.7.4] of CPAG’s Housing Benefit and Council Tax Reduction Legislation 2014/2015.

Martin.