Hello all,

Just a couple of issues on right to reside

1. Has anyone had success with a case of an EEA worker who left employment due to pregnancy being able to keep RtR due to rentention of worker status?( and get income support from 11 weeks before birth ). If so what arguments have been accepted?

2. Has anyone had success with an non EEA national who separates from EEA worker partner and who continues to care for the child but not through a court order? Can she continue to count as a dependant of the EEA worker and get income support as a single parent ( would appear to be contradictory - how can she still be a dependant if he is not maintaining her? ).

Thanks!

1.The pregnancy argument looks pretty shakey given the decision in CIS/3182/2005. However, in that case no human rights arguments were run and it may be possible to add these into the mix to argue that it is discriminatory to refuse a continuation of worker status to a pregnany woman etc......

2. Your second question could presumably succeed on a Baumbast type argument. So long as kids are in school then they have a R to R under Art 12 of EC Reg 1612/68. Client has a right to reside as their primary carer. OR if they are actually married (and now separated rather than divorced) then she continues to count as his family member and has a right to reside following Diatta. Need to look at Reg 9 of the 2006 Regs (family members who retain right to reside etc). as this may provide another answer.

Martin

I'm parafrsing my CPAG Handbook here so I hope I'm not distorting the meaning.

On the first question I believe that, if she is on maternity leave, is still under her employment contract and intends to return to work she should retain her right of residence. Otherwise I'm afraid I don't think you will succeed.

On the second question; a non EU family member who are not EEA nationals themselves, may retain rights if the couple seperate.

I'm pretty sure I've seen case law on the second question but haven't actually looked it up. I think the case I saw was about a married couple who were seperated but not divorced.

Hi all

As a point of interest, I have just won my appeal regarding a pregnant A8 national clt in similar circumstances. My clt is a single parent and had worked for a period of 18 months; she resigned from employment due to child care commitments.

The argument was based around the following points.
1. Clt was exempt from registration by virtue of reg 2(4) A(I&W) reg 2004. This is supported by House of Lords Hansard report dated 23rd April 2004

2. Had the clt been a British citizen, she would have been entitled to paid maternity leave, s71 & 73 Employment Rights Act 1996 further more her employment contract would have subsisted during her period of maternity leave. Accordingly her status of worker; should subsist her maternity leave.

3. The refusal to grant a women maternity leave, would give rise to a sex discrimination claim.

4. The DWP's refusal to award the claimant IS amounts to a discriminatory act and contravenes the provisions of Article 24 of Directive 2004/38 EC & Article 3 EC Regulation 1408/71 the discriminatory act is not based solely on nationality but also on gender.

5. Breach of Article 8 & 14 of the Human Rights Act 1998.

6. Clt is entitled to IS as a result of a temporary break in her working life. The law does not define temporary.

No doubt the DWP will appeal.

Regards
Jean-Pierre