Worker Status

Does anyone have any thoughts of how to progress the following problem:

A single EEA national was working on a fixed term contract which ended and then subsequently claimed Income based ESA because he was unable to work. He is now about to embark on 20+ weeks of radiothererpy and so cannot realistically claim to be a jobseeker. DWP argue that he has lost his worker status because his contract of employment ceased before he became sick and claimed ESA. As such he cannot be treated as a “qualified person” under Immigration(European Economic Area) Regs 2006 and has been refused benefit. He has been in the UK for the last 8 years .

How big is the gap and what did he do during the gap?

There are decisions which concern with relatively small and/or justified ‘gaps’ between the end of employment and a claim. These decisions consider the ‘continuity’ of the Worker status during the gap. I would refer to these decisions. If the gap is reasonably small and the claimant can be considered still linked to the labour market (i.e. he did not go backpacking in Australia for months), he would be considered a Worker and he would be a Worker when he claimed JSA. I would argue that having fallen ill during such a gap he would be entiled to ESA as a Worker for the same reason.

CIS/1951/2008, para 15:

‘A gap between becoming involuntarily unemployed and claiming jobseeker’s allowance is not necessarily fatal. Whether it is significant or not will depend on the length of the gap and the reasons for it. Put into the legal terms of EC analysis, the question is whether the gap shows that the claimant has withdrawn from the labour market. A claimant may take a few days to think about the future or to rest after a stressful period leading to redundancy. That may be consistent with remaining in the labour market. In contrast, a claimant who decides to spend six months backpacking in the Australian outback before looking for work has clearly left the labour market for the time being. The tribunal must investigate this issue at the rehearing.’

http://www.osscsc.gov.uk/Aspx/view.aspx?id=2615

Said this it all depends on the case and also on whether the Judge is willing to consider your argument…

Has he been a qualified person for the 8 years he’s been in the UK? If so, he’s got a permanent right of residence anyway.

According to the Decision Maker the gaps in his work history in the past 8 years has meant” it has not been possible to show that you have satisfied all of the conditions to gain a permanent right to reside”, and “simply living in this country for a period of five years or more is not enough to trigger a permanent right reside”

With regards to CIS/1951/2008 I’ll do some more investigation around Article 7(3) to see if he would satisfy
3(a) he/she is temporarily unable to work as a result of an illness or accident.

He ceased the fixed term contract on 1/12/14 and claimed ESA on 8/1/15.

Well there’s your first line of argument,  because as noted above, it’s fairly well established that gaps aren’t fatal to both securing a PRR over 5 years as a qualified person, or if on your client’s evidence that doesn’t appear arguable, then to show that they have retained worker status anyway as someone experiencing a temporary illness.

It’s important to go through the past period with your client, I’ve certainly won appeals for clients with very patchy but pretty consistent work histories.

Thanks, I think it is worth a go as my client has not got any other options.