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Right to Reside for UC- EEA worker
Hi
Seem to getting more are more people not passing the HRT and Right to Reside tests for UC, mainly EU nationality with Pre Settled Status.
As one of the Right to Reside groups is
EEA Worker -A person currently doing genuine and effective work.
Does this mean for UC purposes that they have to meet this at the time of application for UC or does it have to be since they entered UK/ applied for Pre- Settled Status.
If it has to be continual can another Right to Reside be used if there are gaps in employment.
I have a client (Swedish) who is now in employment and has been since she has been in UK since 2019 with various different employers, which a few gaps here and there of a month or two, who has failed HRT test, asking for MR on Grounds of EEA worker.
One gap was as her children joined her from Somali so she left her job to look after them and employer could not change her hours so she was not in employment for around a month.
All other gaps were due to temp contracts and employment ending involuntarily.
Thanks
Seem to getting more are more people not passing the HRT and Right to Reside tests for UC, mainly EU nationality with Pre Settled Status.
You shouldn’t be, in theory, as the number of people who have been in the UK since 31/12/20 but who haven’t been here for the five years required for settled status ought to be diminishing.
Broadly, once the claimant has pre-settled status, the issue is just whether they have an EU law right to reside or not. Various forms of right to reside exist.
Your client would have a right to reside if they fall within the definition of being a “worker” as at the date that the DWP decides their claim (not the date of the application necessarily).
If you are saying that the client is currently in work, the issue may be more about whether that work has been adequately evidenced, or whether it meets their (incorrect) standards as to what constitutes genuine and effective work, more so than drawing out their entire history.
There is a, different, right to reside which applies if you can show a period of (usually) five years during which you have continuously exercised EU law residence rights - this is the right of permanent residence. Your client might be a permanent resident if they have a five year history of work with occasional gaps of the type you describe. But you would need to go through and evidence their whole history.
If your client has been in the UK since 2019, they might wish to take advice on re-applying to the EUSS for settled status, although note that if you do not have OISC authorisation, you are not allowed to advise them substantively on that.
Further to what Elliot says;
- it is the DWP’s guidance/policy to its decision makers is that they will accept a person is a worker if they have been in employment with earnings at or above a certain amount and once that employment has lasted longer than three months. That figure identical to the primary earnings threshold, which is the level at which a person becomes liable to pay National Insurance contributions on earnings. You can find that figure for each tax year, going back to 2000/2001 at the back of CPAG’s welfare benefits and tax credits handbook.
The employment lasting 3 months aspect stems from caselaw involving EU rights of residence which decided a person must ‘establish’ themselves has part of the workforce in the host member state. However, as Elliot suggests, there are many circumstances where we would argue that a person is a worker either where their earnings are below the primary earnings threshold or where employment has lasted less than three months. The reason I mention the DWP’s own guidance is that UC decision making is so woeful that it doesn’t even follow its own guidance (which we think sets a higher threshold than required by law) - so it is always worth checking your client’s earnings etc; you may well find they actually meet what is said in the DWP’s guidance.
- as for gaps, a worker is able to retain worker status during periods of either involuntary unemployment or temporary incapacity for work. Retaining status via involuntary unemployment will require that the person registers as unemployed and available for work (by claiming UC and signing on) and they need to do that ‘without undue delay’. Where a person has worked on a succession of short or fixed term contracts (e.g. through an agency) it might sometimes be the case that a ‘gap’ of 2-3 weeks can be explained either by the fact the agency would provide them with more work and their only signing on when that didn’t materialise. Or by taking a short holiday. But you do need to be certain/be able to evidence these things. Temporary incapacity is another concept that stems from EU law. It does not require that a person has claimed ESA or UC on the basis of incapacity - so it certainly doesn’t require they have satisfied a WCA. All it requires is medical evidence that they stopped work because of incapacity and of the period of incapacity - that can be in the form of a GP letter and that letter can even cover past periods of incapacity if there gaps that need to be closed.
But all this is just scratching the surface. If you’re getting lots of these cases (and given the likely demographic of your clients, I can see how that might still be the case) it’s worth getting yourself on a good course that covers these areas.
https://cpag.org.uk/training-and-events/courses/benefits-eea-nationals
https://cpag.org.uk/training-and-events/courses/benefits-eea-nationals-advanced