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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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matthewjay
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GOSH CAB

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Sue3131 - 19 February 2015 12:42 PM

Hi, I am new to this site and I have been supporting EEA nationals for nearly 5 years with almost no training so I am here to ask questions to understand the rules a bit more and to be able to advise clients more effectively.
Could someone please explain to me the rules when EEA national would have a right to reside to claim JSA?
I had one client who has permanent right to reside and was asked to provide compelling evidence that she has a GPoW.
Her claim was then stopped but 2 weeks later she got a letter that she does not need to provide GPoW evidence as she has a right to reside because her son is at school. I have never seen this before, so could someone please explain to me when does EEA national have a right to reside so they don’t need to provide compelling evidence that they have GPoW?
thank you

The son being at school is a reference to the derivative right to reside in regulation 15A(3) of the Immigration (European Economic Area) Regulations 2006. Such carers are often referred to as Teixeira/Ibrahim carers after the Court of Justice of the European Union (CJEU) decisions which gave rise to that right. The principle is basically that a person who is or has been a worker in the UK has a right to reside if they have a child who is in education (at least primary school up - nursery does not count). This right to reside gives access to benefits but does not count towards your five years for permanent RTR. If she actually already has a permanent RTR, then that should determine the matter. However, not all EEA nationals who have resided for five years actually have a permanent RTR because the five years have to be in accordance with the Directive, not just legal under UK law.

To answer your question about when an EEA national can claim JSA, you should realise that one of the categories of right to reside under EU law is that of a workseeker. This is not the same thing as being someone who claims JSA, though often they will be the same people. If your only RTR is as a workseeker, then your right to reside and therefore access to JSA is limited to 6 months before the GPoW test. It has been argued that this is an unlawful gloss on what the CJEU said in the Antonissen case so this may be subject to challenge.

Much of the discussion above is about whether people who have a RTR other than as a workseeker are also limited to 6 months before the GPoW test. The general view is that if you have some other RTR (e.g., right to reside under reg 15A(3), family member of a worker, permanent RTR) then you should not be subject to the GPoW test at all. However, there is lots of anecdotal evidence, including your client, that the DWP are not applying the test in this way.

There is then the question of people who have retained their worker status after becoming unemployed. Such people are also subject to the GPoW test, though the extent to which this is compatible with EU law is also debated.

As a reference text, you might want to look at CPAG’s Benefits for Migrants Handbook which goes into much more detail than the main Handbook.

[ Edited: 28 Feb 2015 at 03:27 pm by matthewjay ]
Sue123
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EEA Family Support, Children's Centre Calderdale

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Joined: 16 February 2015

Hi, I haven’t been able to purchase the book yet but hopefully will be getting it soon.
I wanted to ask, do people who claim JSA and are also working less than 16 hours a week still have to provide compelling evidence they have GPoW?
I thought this was only for people who claimed JSA and haven’t managed to find a job.

thank you