ESA new claim by A8 national detailed under Section 3 of MH Act - URGENT

Hi, can anyone advise?

We have a case where our client is a Polish National, detailed under Section 3 of MH Act and they have worked for less than 12 months in UK.

No confirmation yet as to whether client has applied for Workers Registration Certificate when they arrived in UK (2010) and they have been having NI conts deducted from their pay.

Employer has now terminated the casual contract so they have no income - what are the chances of an ESA claim succeeding?

Many thanks

Liz

Where an A8 national has not completed 12 months registered work under the Workers Registration Scheme, there is usually no recourse to benefits.

Even where 12 months work have been completed under the scheme, entitlement to benefit is on the grounds of being an EEA national who is a “workseeker” (under Article 39 EU Treaty), which effectively limits entitlement to JSA only, and even this is theoretically limited to 6 months by the requirement to show that the search for work is genuine and realistic.

Had a client in a similar situation recently, who was eventually forced to rely on support of friends and family rather than return to his country of origin. Have a look at CIS/3182/05.

Sorry to be the bearer of bad news!

A couple of thoughts:

- If he has been detained under s3 he will presumably be entitled to s117 aftercare? Doesn’t help him claim benefits but it does mean the health and local authority have a responsibility for maintaining and accommodating him regardless of his immigration status. Be prepared for a fight though.

- Could he use EU 883/04 (previously 1408/71) to enable contributions made in Poland count towards entitlement conditions in the UK? There is no right to reside test for C-ESA so if he can do this then he could at least have some income coming in (although would not be able to claim HB/CTB). Details on pg 1451 CPAG.

I recall reading something in the papers about removal of benefits from prisoners transferred to hospitals that there are limited powers for the NHS to make payments to hospital patients.  Even if this does exist, again expect a fight over it.

I can’t find the document - have tried searching Rightsnet without success.

You have probably considered this but does he have any close family members in the UK who are working? He may be able to gain R2R through them.