My client is a married polish woman with a 4 year old child.
Her husband was claiming Income Based JSA after having comleted 12 months on the workers registration scheme. She has never completed 12 months on the workers registration scheme, she completed 8 months, then became pregnant and has not worked since. They have lived in the UK since May 2004.
On 12.10.09 the husband returned to Poland to seek work for a temporary period, returning to live with her on 8.12.09. Whilst he was away, she claimed JSA in her own right and he sought work in Poland. She told the DWP her husband was in Poland and she informed them when he returned on 8.12.09.
They initially paid her JSA but stopped it on 2.01.10 saying that they had not checked her right to reside previously and she did not have one.
Her husband worked for one week from 26.01.10 which they declared and then they signed on again in her name from 02.02.10.It was only a temporary job, he was not sacked.
I believe that as she is a family member of someone with a right to reside that it should not matter if the claim is in his name or hers but I am not confident about this. Could someone direct me on this matter?

Have they both not gained permanent right of residence having been a qualifying person or a family member who has retained the right of residence for 5 years?

The DWP probably won't check this, they seem to put the burden of proof onto the claimant to show they qualify.

Thanks, that is worth a try.
Has anybody got any tips for making this arguement or is it as simple as showing they have over 5 years residence?

Tue 23-Feb-10 09:52 AM by nevip

This is currently before the courts. Article 16 of EC Directive 2004/38 states that “union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there”.

The question is whether “resided legally” has an ordinary everyday meaning of simply ‘being here’ or does it mean, as the DWP contends, been here in accordance with the Directive. In other words, throughout the five years was a “worker” or was a qualified person (or retained worker status or was a family member of a worker or someone who retained worker status), i.e. as a family member of someone claiming JSA.

If the latter then your client should not have a problem, if the former then she probably will.

I presume they are both Polish? Sorry I might have missed something, but hasn't she been here in accordance with the Directive for 5 years?

Wouldn't this situation fall under Article 7 (1)d? "family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c)"

In terms of proving 5 years residence you should provide proof of work i.e. p60 & p45s and any benefit entitlement letters, although they should obviously have access to this.

Yes, they are both Polish.
Thanks for the above replies, all very helpful.