I have a client who is Spanish and lived in the UK since 2004. He was in receipt of JSA but was mugged and had his leg broken. He was hospital for 2 weeks and returned home and made a claim for ESA. He was not awarded any benefit when in hospital.
The claim for ESA was turned down because he failed the HRT.
Could I argue he has a right to reside because of lengh of time in UK and therefore should be granted permanent residence and/or he was only temporarily not a seeking work and therefore maintained his right to reside. He subsequently signed on again and was awarded JSA. Any help would be great. Thanks.

Need to know more to advise! When excatly did he come to the UK and what has be been doing to date? With all R2R cases a chronology is needed.

Basically if he achieved worker staus in past and retained it (eg by claiming JSA) then became ill he can keep R2R during a period of tempoarary illness (CIS/4304/2007).

For permanent right to reside, has to have 5 years continuous residence in accordance with EEA(Immigration) 2006 regs, or under 2000 Regs prior to 30/04/06. If he was a worker or retained worker status, this will count.

Jobseeking prior to April 2006 counts due to CIS/4299/2007 and after April 2006 due to 2006 Regs. Short breaks may be OK due to CIS/1951/2008. You can also use EU Directive 2004/ 38 which refers to legal residence, but this is awaiting clarification in case of Mc Carthy with regard to non-qualified persons under 2006 and 2000 Regs.

I've just done an appeal on permanent residence ( we won, though DWP will try to appeal of course) so I had to get up to speed on the law!

Sorry on further discussions with my client, he came to UK in May 2002 and worked from 13 May 2002 to 15 May 2003. He has remained in the UK and has been signing on. His only break off JSA has been when he broke his ankle. Hopefully this will help thanks.

In that case your client appears to have achieved worker status in 2002 and kept it by registering for employment and claiming JSA thereafter. You need to check why he stopped working in 2003 - was it voluntary or involuntary? If the latter, he keeps his worker staus indefinitely as he worked for more than 1 year.

Can you prove that he worked for more than a year? You could also check his NI contribution record which will show paid Class 1 plus credits through claiming JSA. The DWP records will not go back to 2003 so you may need to prove receipt of JSA through other means eg bank statements or NI record.

Time as a worker counts under EEA(Immigration) regs 2006 Reg 15 towards 5 continuous years "in accordance with these regulations" - the worker bit plus retention of worker status is Reg 6(1) and (2). Time prior to 30/04/06 when the regs came into force is allowed under EEA regs 2000 and is referred to in the 2006 Regs in Para.6 to Sch 4.

So you will not have to use the Directive 2004/38 to argue "lawful residence", which is just as well as this is up in the air at the moment. Because your client kept worker status he can switch to ESA from JSA due to the effect of Commissioner Jacob's decision I mewntioned in my earlier post.
Hope this helps!

Thanks really useful. I will let you know how I get on.

Sorry I should have clarified something - if you can show permanent R2R thorugh EEA 2006 Regs the clock could start ticking from 13/05/02 and your client could have got it from 13/05/07. It is only lost if client leaves UK for longer than 2 years. So on this approach you would not need to use CIS/4304/2007, though you obviously can as an alternative.
The latter may be more relevant if you cannot use a permanent R2R argument, provided client achieved worker status in past and kept it, for example by registering as a workseeker and claiming JSA.