claimant Polish, in UK since 26.9.05 partner Algerian, in UK since 12.12.08

worked from 29.9.05 to 3.10.06 for employer 1, registered this on 5.4.06

employer 2 from 4.10.06 28.2.07, registered 21.11.06

issued with UK residence documentation for an national of an EEA state on 10.1.07

worked for employer 3 p/t from 17/3/07 to 19/4/07 –not registered as she had received blue card by then

employer 4 10/4/07 29/2/08 –not registered

worked for employer 5 since 3.3.08 still unemployed on maternity leave

HMRC refuse to pay child benefit on the grounds that client does not have the right to reside because she has not completed 12 months under the registration scheme. They say that the residence card should not have been issued and does not help her for claiming CHB. They are quoting SSCBA 1992 s 146(2),(3) and 147(1), and the ChBen Regs re 23(4), and the Accession (Immigration and Worker Registration) Regs 2004

This is going to a tribunal now. The Child Benefit regs say that a person should be treated as not being in GB where the person does not have the right to reside.

I was going to argue that (prematurely or not) the residence permit has been issued, is valid and gives her the right to reside as a worker, which she is, as she is still employed (although on maternity leave). There is no evidence that the Home Office have said that the permit should not have been issued, or that they are trying to revoke it.

IMO, it is not for HMRC to decide whether a residence permit should or should not have been granted, and I don't think they should look behind Home Office decisions, otherwise they might as well start checking grants of refugee status, indefinitely leave or whatever. As far as I know, the appellants in the CDs holding that the 12 registration requirement must be complied with did not have the blue card

What do you think - can she rely on the permit? And am I right in assuming that someone still employed but on maternity leave still counts as worker?

Thanks for any comments

Isn't the problem that since April 2006, under the residence directive 2004/38, any residence permit takes effect only as a registration (and not one for A8 nationals?) There's some case law on this somewhere tho I can't put my finger on it. That's why the residence permit was wrongfuly issued: it isn't a residence permit at all, only a record of the applicant's status at the time of application.

I think I did not make it clear about the 'wrongly' issued. It was issued by Home Office before the client had completed 12 months registered work. And after she had receive the permit, she no longer bothered to register her work, as she obviously thought she did not have to register anymore.
I thought that case (CIS/2054/2008?) about the residence permits under the new directive actually helped her, because it showed she had a r2r when the permit was issued and she has not lost her r2r as she kept working since then (apart from very short gaps and the maternity permit). I thought that case would only be unhelpful if you tried to rely on a res permit issued in the past and you were no longer economically active etc. But maybe I was wrong, I have to look at it again.

You don't need a right to reside to claim child benefit. You need to be "ordinarily resident", whatever that means.

Ariadne- a claimant of CB does apparently need to have a right to reside to claim CB.

Reg 23(4) CB (General) Regs 2006-

(4) A person shall be treated as not being in Great Britain for the purposes of section 146(2) of SSCBA where he makes a claim for child benefit on or after 1st May 2004 and does not have a right to reside in the United Kingdom.

If the permit thing doesn't work out, your client will still have a problem establishing herself as a worker, even if, as I believe is the case, her maternity leave status (OML) would still qualify her as a worker in other circumstances.

This is because the rules say that someone is a 'worker' only if they are working for an authorised employer (reg 5 Accession (IWR) Regs). An authorised employer is defined in reg 7 and basically means that the employee must have registered that employment or be within a month of starting the job and awaiting a registration certificate.

Notwithstanding that she might be covered by the 'blue card', about which I know nothing, your client should be advised to register her current employment ASAP and to reclaim CB as soon as the registration certificate appears. This is particuarly so if CTC, HB/CTB, etc are fullowing suit as it will most likely be the quickest way of resolving the immediate income problem. If the 'blue card' issue turns out to be OK then she could seek compensation for the cost of the unncessary worker registration fee...

How about a different angle. So long as she has not been claiming social assistance (IS, IBJSA, IRESA, & probably HB&CTB) She could argue that she is self sufficient and was self sufficient throughout the whole period with the wages & mat pay being the resources that make her self sufficient. The other thing worth checking is whether the dates on which she 'registered' the work are dates on which she applied or date of issue. It will make a big difference if for example she applied for registration of job 2 on 15th October but had to wait until November for it to be issued. Oh and she should register her current work asap to make sure.