I have a client who is an Italian national. He's been in UK less than six months and has a Ghaniain wife who's passport is endorsed with a 180 day visitor visa. They've been married for around 20 years. Neither are working.

I'm inclined to advise that during the first six months he can claim benefit as a workseeker - so long as he claims JSA and, as a family member, his wife can ignore the public funds restriction on her passport.

However, what if he doesn't have a job after six months? As far as I know, at that point client will not have the right to reside as he is not exercising a treaty right which, in turn, will mean that his wife can no longer rely on 'family member' rights and will therefore revert to being a person subject to immigration control?

Thanks,

I'm not an expert in R2R but so long as the Italian national is exercising his treaty rights then his spouse will have a parasitic right to reside as the spouse.

6 months you are probably ok as is the wife and afterwards its a bit dodgy.

In theory if the Italian national can show that he is actively seeking work and has a genuine prospect of being engaged beyond the 6 months he could still presumably have R2R as a workseeker and his wife could have R2R as the spouse.

Perhaps the easiest thing would be for the italian national to become a worker and then retain his status or perhaps he could leave the country and come back?

Is that right?

This 6 month thing for jobseekers comes from Antonissen. All that case said was that is that it is not illegal to remove a jobseeker after 6 months, unless they at that point have 'genuine chances' of employment, in which case it would presumably be illegal to remove them. Thats not the same thing as removing someone at 6 months simply because they do not have a job yet.

The Residence Directive seems to leave such matters up to the Host Country. The EEA domestic Regs takes matters further than Antonissen, and say that all jobseekers must have genuine chances from the word go. But neither does this mean that after 6 months, you have to leave.

Its worth remembering that Antonissen was in trouble over drugs offences, and the government wanted to get rid of them. It was the court's view that a person should have 6 months to get used to things in a Host country, but should then be able to remain if they have genuine chances of work.

Whether signing on demonstrates genuine chances is something that the RTR case law is not consistent about. Let me know if you want more on that.

I don't think your client should have a problem after 6 months job seeking.

Thank you both for your helpful replies.

Suppose the client's jobseeking is fruitless and it is eventually decided that he has no RTR, then is it true that he would no longer be in the UK exercising his treaty rights and therefore his wife's status would revert to a person subject to immigration control?

Thanks again.

My colleagues thoughts are that the 6 months R2R as a job seeker starts from the date of entry. So in theory your client could leave the country and come back and have another 6 months R2R as a job seeker.

However there might be something in the JSA regs against allowing someone from doing that.

The six month bit is not important - I hadn't checked the rules before posting but can do that anytime. The crucial part is in my last post and is the wife's status if client is found not to have RTR.

Thanks so far to all.

Tony,

The wife is a family member via domestic reg 7, but with few exceptions that only means anything if the husband remains a qualified person (exercising Treaty rights etc). I do not think any exceptions apply here. Therefore family member status (for RTR purposes) is not generally durable (domestic reg 14(2) and (3)). Wife has right to work via Article 23 of the residence directive. I have never thought through how this right fits in with immigration law prohibitions on work, but assume they are overriden (is that right?).

So if husband ceases to be economically active, this affects rights of wife to be eligible for benefits due to loss of RTR, although she can still stay in UK if self supporting etc (general rights under Article 18 of Treaty).

Steve

Hi Steve,

Thanks for this and the references. I've spent a bit of time going through it all again today and I feel confident to advise the client now.

The CPAG handbook (pp 1449-1450) is clear that EEA rules do override UK restrictions for those subject to immigration control (EC Reg 1408/71) and this is also reflected in the E(EEA)regs 2006 for which you have given references.

I've advised the client to claim JSA and I can deal with the RTR/workseeker aspects if his claim is refused.

Thank you both for your contributions.