Clt and wife originally from Afganistan, sought asylum in Holland in 1997 with adult son. Clt and wife, Dutch nationals, had not worked in Holland and were receiving, presumably, non-contribution based benefits. Clt's son, daughter-in-law and children all Dutch nationals,came to UK 22/5/05, son worked from Feburary to end July 2005, job finished, son claimed JSA for himself, wife and children. Clt and wife came to UK 29/11/05 claimed PC for himself and wife (clt is 68), refused. Clt and wife came to UK because they were in poor health and wanted to be with son. Appeal lodged (May 2006) on grounds that Clt and his wife are dependants of an EU worker/workseeker.

Because of the finacial strain on son and other factors, Clt and wife had to leave son's house, currently housed by a local church, receiving meals and small amounts of cash from local Sikh temple. Clt and wife in poor health are being treated by a local GP. As far as clt is aware son is still on JSA.

Clt's has tribunal hearing next month, will argument that they are dependants of worker/workseeker carry any weight?

Sorry - i cannot see this working.

The problem is that your client appears to be a workseeker rather than someone who has retained their worker status following unemployment - if he became involuntarily unemployed and worked for less than a year my memory says he only retains worker status for 6 months on JSA - it is Article 7 of Directive 2004/38.

While a workseeker is a qualified person under the domestic regulations (reg 6 SI 2006 No 1003) and the family members of qualified people have a right to an extended right to reside (reg 14), the government has effectively closed off the rights of the family members of jobseekers to claim anything other than JSA in their own right. This stems from the PFA regs (SI 2006 No 1026).

For example the PC amendments in SI 2006 No 1026 state

“Persons not in Great Britain
2.—(1) A person is to be treated as not in Great Britain if, subject to the following provisions of this regulation, he is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.
(2) No person shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless he has a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland other than a right to reside which falls within paragraph (3).
(3) A right to reside falls within this paragraph if it is one which exists by virtue of, or in accordance with, one or more of the following—
(a) regulation 13 of the Immigration (European Economic Area) Regulations 2006(b);
(b) regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the person is—
(i) a jobseeker for the purpose of the definition of “qualified person” in regulation 6(1) of those Regulations, or
(ii) a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker;

I am afraid the option for your clients is either the wife or the clt work / become self employed and then the family members may have rights as dependents. Then you would need to argue that dependence is not only material but emotional, spititual or otherwise

Thanks for your response, for clarification, the Clt and his wife, both in their 70's are dependants of a workseeker, it is their son who is the workseeker and on JSA.

Took that as read. Their problem is though that they are trying to attach parasitic family rights on a jobseeker and the only way they could do this is if the workseeker is treated as a worker.

Tim
How does this work where the PC claimant is an extended family member under Reg 8 of the EEA Regs of a worker? If the PC Regs have been amended to give a right to reside under reg 14 to a jobseeker, or a family member of a jobseeker within meaning of reg 7 - where does the right to reside come from for an extended family member of a worker? I have one of these on thursday. Joy.

Ellie

Sorry a quick response without a lot of thought as i have just noticed the posting.

The starting point is that you have a problem with the PFA regs, SI 2006 No 1026 as in reg 9(4)(d) the right to reside for family members of workers et al is restricted to those that come within Article 2 of the Directive. This does not include extended family members who come within Article 3.

If they were granted a EEA family visa or other such residence document this should suffice as they are treated as family members for the purpose of the EEA regs.

Otherwise, you are in for a battle. Off the top of my head you could look at the previous case law on permits and argue that a permit is not necessary to prove a right but that the existence of one is determinitive. As such Reg 7(3) of the EEA regs is far too restrictive. In addition, the purpose of Art 3 of the Directive is to facilitate the residence of family members and if they have let them into the UK, to deny them a right to reside is to contradict the purpose of the Directive.

sorry for the 11th hour response and for its scantiness

regards,
Tim