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R2R
Hi, I have a client who is an EEA national, he has been claiming IBJSA for the past two years.
He recently applied for ESA and was refused on the ground of failing HRT.
My question is… if he passed R2R to become entitled to IBJSA then how come he he failed it now. Please help :)
As a ‘jobseeker’ he has a right to reside (hence he was paid JSA). However, to receive ESA he would (usually) have to be a ‘former worker’ in a temporary period of incapacity and as from the sound of it he has never worked in the UK this doesn’t apply. Therefore, he has no RTR for ESA purposes (unless he has some other route- as a family member, for example).
His best bet is to reclaim JSA and continue to actively seek work. He can make reasonable limitations to the sort of work he can look for in view of his illnesses/disabilities.
Thank you 1964, he came to UK in 1989 and worked until 2006 continiously. Do not have all the proof required. Between 2007 to 2012 he didnt do anything. Only started to claim JSA in 2012
[ Edited: 5 Jun 2014 at 09:13 am by Sophia2013 ]That gap between 2007-2012 is going to present a problem (DWP will argue he has lost his status as a former worker and whilst he potentially has a permanent right of residence the gap is likely to scupper that argument too). What was he doing during the gap?
Thank you 1964, he came to UK in 1989 and worked until 2006 continiously. Do not have all the proof required.
I think that’s the problem, the fact that he can’t proof he had worked continuously for those dates, but he does have a permanent right of residency if that is correct.
See the case law, Dias and Lassal, in the thread below.
http://www.rightsnet.org.uk/forums/viewthread/6459/
What I would do is appeal the decision, after all they should have his contribution records, and dispute based on his permanent right of residency. He should be treated like any other UK citizen, I will assume he has not left the country, between 2007 and 2012, for more than 2 years, and see what the response is.
[ Edited: 5 Jun 2014 at 01:03 pm by chacha ]1964 he says, was living off his friends during that time.
Thank you 1964 & chacha this is very helpful. Just one more question, you said he should have permanent right of residency based on the fact that he worked for five years. Will this still apply eventhough he worked 8 years ago?
Just one more question, you said he should have permanent right of residency based on the fact that he worked for five years. Will this still apply even though he worked 8 years ago?
Did he stop working prior to 01/05/06?
No he worked continiously from 1989 to 2006
No he worked continiously from 1989 to 2006
When did he stop working in 2006? It’s important, because he did nothing from 2007 to 2012.
DWP have got his National Insurance record which, if he was cards in, should be plenty evidence to establish he’s been working. Ask them for it, cite Kerr paragraph 62… Where Baroness Hale tells us
“What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced. “
As I recall the EU DM team at Wick were given access to the NI contribution system a couple of years back; they should be able to check, alternatively I used to ask a friendly JSA DM to print it off for me (Thanks Robin if you’re watching)
[ Edited: 6 Jun 2014 at 09:28 am by Dan_Manville ]When did he stop working in 2006? It’s important, because he did nothing from 2007 to 2012.
As long as he was working on or after 30/04/2006, when the directive came in, then he’s fine. He has, and has retained, a permanent right to reside.
chacha, he stopped working in September 2006
will he qualify for permanent right to reside?
chacha, he stopped working in September 2006 will he qualify for permanent right to reside?
Yes he does, see earlier decisions as cited, if he has not been outside the UK for more than 24 months. (Edited, apologies for the typo meant 24 months not 12)
[ Edited: 11 Jun 2014 at 11:18 am by chacha ]I think there’s a clause in the 2006 regs which says any years of legal residence before this date count when calculating qualifying years for permanent right to reside.