I just wanted to clarify the benefit entitlement of claimants who came to this country as asylum seekers from countries that are now part of the EU. Did they cease to be asylum seekers in April 2004 and if so do they have to satisfy the worker registration scheme before they can claim welfare benefits or is this just A8 nationals that came here since 2004?

My client came to Britain from Poland in 2000, she claimed asylum and was awarded limited leave to remain until 2005. She does not appear to have received any further info on her status from the Home Office since the limited leave ran out. The limited leave ran out after 2004 though so I would have thought she ceased to be an asylum seeker once Poland became part of the EU. She has been recieving Income Support since she arrived here.

She's stuck needing to establish a R2R and will need to jump through the WRS hoops if she's seeking to establish a r2r on "worker" grounds.

Thankyou for your response. Unfortunately she suffers from severe mental health problems and is incapable of work, I dont believe she has ever been able to work in this country as her mental health problems are long standing.

From what I can gather she claimed Income Support due to incapacity for work when she was granted the limited leave to remain and continued to receive it until August this year when it suddenly stopped and we are trying to establish why.

I'm not sure if this will help but Para 2 (2) of the Assession regs may help you get round the need for workers registration if leave was granted under the Immigration Act 1971

(2) A national of a relevant accession State is not an accession State worker requiring registration if on 30th April 2004 he had leave to enter or remain in the United Kingdom under the 1971 Act and that leave was not subject to any condition restricting his employment.

R2R is a bit tricky. You could try the permanent residence arguement as they have been here lawfully since 2000. As yet we don't know what was intended to be lawful for the purposes of the the directive 2004/38/EC. I believe that there have been arguements that A8 nationals can not aquire treaty rights before 2004 as they were not in the EU at that time. I'm sure someone will tell me if im right.

Hopefully once 'Lassel' and the other cases reach the ECJ we may get a clear picture of what was intended.

I'm not an immigration solicitor and it is my understanding that when Poland joined the EU it citizens automatically became EU Citizens and therefore no longer needed to seek asylum. You may wish to ask an immigration person if it is possible to still get ILR in such cases as this would bypass R2R, however I suspect this route may be closed.

Theres alos a question of if there is any transitional protection if she was on Incoe Support prior to 2004.

It is intersting to note that your client was getting Income Support till August this year. I'm going to guess that someone in the DWP has realised that she is and that shes an EU national and have then decide to revise the decision on the basis that she is no longer temporaily incapable of work. I am assuming that there is not an overpayment, therefore I would guess that teh have treated the period up to the decision as retaining worker status on the basis of tempoary incapacity for work. Let me know if im close

This is a difficult one. If she had limited leave to enter (have you seen her passport/visa?) what restrictions on employment was it subject to, if any?

Unless she had the right to work in the UK as at May 2004, she can only be a worker by using the 12 months of the registration scheme. If she is not a worker (which, by the sound of it she never ahs been) the worker registration schme and the exemptions from it are irrelevant and the issue is whether she NOW has a right to reside. Her previous immigration status is wiped out when Poland became a member of the EU.
As far as I understand it it's pretty settled that you cannot have a right of residence in another Member State for any period when you were not yourself a citizen of a Member State, because you were not "legally resident" under ANY form of European law provision.

One of the things that worries me is whether she ever did in fact have leave to remain. It may be that in 2000 she would have, but generally asylum seekers are not given "leave to enter", only "temporary admission", and thes ays theya re not usually allowed to work either. But that has changed relatively recently.

I think the advice to contact an immigration spcialist is sound on that part.