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Top Income Support & Jobseeker's Allowance topic #7939

Subject: "EEA nationals right to recieve JSA" First topic | Last topic
coldbather
                              

legal assistant, davies gore lomax, Leeds
Member since
23rd Jun 2009

EEA nationals right to recieve JSA
Fri 23-Apr-10 10:55 AM

Hello,

I have a client who is a French national and so are his wife and children. He came to the UK in April 2009 and was followed by his wife and children.

He moved to the UK with the intention of settling here and looking for work and possibly setting himself up as self employed.

He made a claim for JSA in Sept 09 and was turned down. The reasons that were given for turning him down was that he could not satisfy the Right to Reside criteria as he had not worked since arriving in April 09, and 'doing little to show he was looking for work'.

Does the below mean that the employment the client has had in France, prior to moving to the UK, counts toward him being a 'worker' and a 'jobseeker'?

2. The institution of a Member State under whose legislation entitlement to benefits covered by paragraph 1 is subject to the completion of periods of employment,self-employment or residence shall regard, to the extent necessary, periods of employment, self-employment or residence completed in the territory of any other Member State as periods completed in the territory of the first Member State.



  

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Replies to this topic
RE: EEA nationals right to recieve JSA, pclc, 23rd Apr 2010, #1
RE: EEA nationals right to recieve JSA, coldbather, 23rd Apr 2010, #2
RE: EEA nationals right to recieve JSA, ariadne2, 23rd Apr 2010, #3
      RE: EEA nationals right to recieve JSA, coldbather, 23rd Apr 2010, #4
           RE: EEA nationals right to recieve JSA, Steve Johnson, 24th Apr 2010, #5
                RE: EEA nationals right to recieve JSA, coldbather, 26th Apr 2010, #6
                     RE: EEA nationals right to recieve JSA, Steve Johnson, 27th Apr 2010, #7
                          RE: EEA nationals right to recieve JSA, pclc, 27th Apr 2010, #8
                               RE: EEA nationals right to recieve JSA, Steve Johnson, 27th Apr 2010, #9
                                    RE: EEA nationals right to recieve JSA, clairehodgson, 27th Apr 2010, #10
RE: EEA nationals right to recieve JSA, Dan_manville, 29th Apr 2010, #11
      RE: EEA nationals right to recieve JSA, nevip, 29th Apr 2010, #12
           RE: EEA nationals right to recieve JSA, pclc, 29th Apr 2010, #13

pclc
                              

legal advice worker, plumstead law centre
Member since
16th Feb 2006

RE: EEA nationals right to recieve JSA
Fri 23-Apr-10 12:16 PM

This is just off the top of my head without looking things up - EEA nationals can be entitled to Cont JSA in the host state based on NI paid in another EU state - for some reason I think this only lasts for 3 months though.

Time as a worker in another EU state doesn't mean anything for R2R here for an EU national.

If your client is not entitled to Cont JSA through NI paid in France, he has R2R for IB based JSA but still has to satisfy HRT, within 1 -3 months normally.

If your client has never been a wotker in the UK there is a potential issue over whether he can be paid for longer than 6 months on IB JSA but I have not had a case yet where the DWP have tried to argue this.

I don't understand the R2R decision at all - but then many don't make any sense.

I would suggest an appeal and a fresh claim.

  

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coldbather
                              

legal assistant, davies gore lomax, Leeds
Member since
23rd Jun 2009

RE: EEA nationals right to recieve JSA
Fri 23-Apr-10 02:09 PM

1. Is this what you are referring to above?

'To come within the scope of the Regulation, a person must be a 'worker', which in essence means that s/he must have paid national insurance contributions in at least one Member State, and be a national of a Member State (or a refugee). Under Article 3, people who are covered must not face benefit discrimination on nationality grounds.'

The above is an extract from the 'ECJ decision', following Swaddling.

If this classifies the client as a worker, does he automatically qualify for IB- JSA when the contributions run out?

2. If the client passes the HRT becasue he was here for 5 months when he made the claim for IB - JSA in Sept when he came here in April 09? Will he be eligible for 6 months IB JSA only?

That strikes me as odd, surley if anyone passes the HRT they are eligible for the Benefits as any else in the UK.

  

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ariadne2
                              

Welfare lawyer and social policy collator, Basingstoke CAB
Member since
13th Mar 2007

RE: EEA nationals right to recieve JSA
Fri 23-Apr-10 03:06 PM

For the purposes of the right to reside test (an essential part of the baitual residence test), an EU national is not a worker if he has never worked in the host member state. Once someone has worked for a year, he retains worker status if he is involuntarily unemployed and signing on; if his involuntary unemployment is the result of the expiry of a short-term contract (under a year) he only retains the status for up to 6 months.
You cannot pass the HRT if you do not have a right to reside. A worker has a right to reside. A work seeker - someone who has never worked in the UK - does not (though they did before April 2006) and thus cannot claim means-tested benefits.
It is not possible to make a claim for CBJSA on foreign contributions from within the UK, but (as already pointed out) if an equivalent benefit has been in payment in another member state it can be "exported" to GB for a maximum of 3 months.

  

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coldbather
                              

legal assistant, davies gore lomax, Leeds
Member since
23rd Jun 2009

RE: EEA nationals right to recieve JSA
Fri 23-Apr-10 03:47 PM

HRT is distinct from RTR because HRT is needed to claim certain Benefits, but not CTC or CB?

RTR for EEA nationals lasts 3 month automatically;

EC Residence Directive 2004/38

The Directive gives all EU nationals and their family members a right of entry to any EU state and also allows an initial right of residence for the first three months of arrival. This right of residence is subject only to the requirement that the person holds a valid passport or identity card.

The Directive provides an extended right of residence beyond the initial three-month period to the following categories

Economically inactive people who have sufficient resources for themselves and their family to avoid becoming an unreasonable burden on the social assistance system of the host member state during their period of residence and who have comprehensive sickness insurance cover

My client lived off money of his own from April 09 to Sept 09. The claim for CTC and CB was made in Sept

If HRT is passed on the facts of the case, will an EEA's residence in the UK for the first 3 months be considered as a period that will count toward passing the HRT, plus the further extension if he was self-sufficient?

.
The client’s claim for JSA was made in Sept 09 requesting a back date to July 09, because that is when his family joined him.

  

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Steve Johnson
                              

Manager, Walthamstow CAB
Member since
24th Oct 2005

RE: EEA nationals right to recieve JSA
Sat 24-Apr-10 09:58 AM

The 3 months initial residence rights referred to do not give any benefits rights, but the time counts towards satisfying the 'mainstream' aspect of the HRT (the non RTR bit).

The period being self-sufficient would count towards the satisfying the mainstream aspect of the HRT, and the person would also have the RTR over that period, by virtue of being a qualified person because being self sufficient.

Regarding the comments on the 6 month claim period for IBJSA earlier in this thread: it was the judgement in the Antonissen case that held it was within EC law to remove an unsuccessful jobseeker after as little as 6 months, “unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged.”. The judges in Antonissen recognised that at the beginning of a claim by a migrant jobseeker, it would be reasonable to allow a bit of time to settle in the new community.

Unfortunately, the domestic regulations then cunningly inserted the ‘genuine chance’ criteria for a regular jobseeker from the BEGINNING of a JSA claim. Here is Reg 6(4):

“(4)…For the purpose of paragraph (1)(a), “jobseeker” means a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged.”

By 'regular' jobseeker, I mean those who do not have 'worker no longer working' rights via Reg 6(2).

Therefore, there should not be any question of the automatic withdrawal of JSA after 6 months of a JSA claim, using the domestic regs, because the vital test ('genuine chance') should have been running from day 1 of the JSA claim anyway. There is a fair amount of case law discussion about whether or not claiming JSA is in itself reasonable proof that you have a 'genuine chance' of employment (not all of it helpful).

However, I was pleased to hear Mr Brown confirm on the telly the other night that we are coming out of recession (one assumes with the prospect of loads of jobs). I wonder if this will help win any appeals concerning 'genuine chance' cases? Maybe he would attend. I wonder if I could get a witness order?

Steve

  

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coldbather
                              

legal assistant, davies gore lomax, Leeds
Member since
23rd Jun 2009

RE: EEA nationals right to recieve JSA
Mon 26-Apr-10 04:03 PM

Hello,

What do you think of the argument that the DWP should not have disallowed the client's claim for JSA based on what they described as ‘no record of the client looking for work’, as they are considering his record prior to him making a claim for JSA.

I can not see any regs and rules that state a person making a claim for JSA should have, prior to signing their 'jobseekers agreement', conformed to any amount of jobseeking.

As the client had the R2R and was HR on the basis of him being self sufficient for 5 months prior to his claim for JSA, then his basis for R2R on being a jobseeker and a 'qualified person' begins from when he makes the claim for JSA.

Becasue the client needed an interpreter when he made his claim for JSA, the DWP are arguing that he did not have 'a reasonable prospect of employment’.

He has since attended a Language course recommended by the DWP.

Can this notion of 'a reasonable prospect of employment' be used against some one who does not speak English?

I am hopefully going to overcome that if i argue that they must allow an application to be made and if the client can not conform to their 'jobseekers agreement', then they will face the sanctions like any other client regardless.

Thank you















  

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Steve Johnson
                              

Manager, Walthamstow CAB
Member since
24th Oct 2005

RE: EEA nationals right to recieve JSA
Tue 27-Apr-10 09:33 AM

Hi there,

On the business of speaking English, an automatic barrier to JSA based on that requirement would to my mind compromise the intention of Article 39 of the Treaty, since (guess what!) not all EU migrant workers speak English. Article 14(4)(b) of the Residence Directive guarantees the right to be in the Host State as a jobseeker ('genuine chance' criteria), but makes no reference to having to speak the language of the Host State. Have a look at R(IS) 8/08. Here is a clip from para 6, which might be helpful, because it suggests language problems will only compromise claims in a 'relatively small' number of cases:

"...I accept that some people may be available for work and be actively seeking employment but not have a genuine chance of being engaged because, for instance, they have an insufficient command of English or Welsh for the type of job they are seeking or, perhaps, they have settled in an area where there is a particularly high level of unemployment and a dearth of jobs, so that the requirement to have a genuine chance of being engaged can be an additional hurdle. However, that additional hurdle will not often be significant and I suggest that the proportion of cases in which it will be right to reject a claim for jobseeker’s allowance on the ground that the claimant does not have a right of residence rather than on the ground that the claimant does not satisfy one or more of the conditions in section 1(2) of the Jobseekers Act 1995 – because, for instance, he or she is not genuinely available for, or is not actively seeking, employment – may be relatively small. It is true that a person who is not genuinely available for, or is not actively seeking, employment may not have a right of residence, but, in such a case, it is not helpful to reject the claim solely on the ground of the lack of a right of residence without reference to the underlying ground that would apply to British citizens as well as other EEA nationals."

I think JC+ has to remember that claiming JSA is not part of the citizenship test.

So far as the domestic JSA rules are concerned, you point out that JC+ have given two grounds to resist the JSA award. Firstly, lack of previous efforts to find work (previous to the claim, I think you suggest). Thats mad - a claimant should only be judged at the state of play at the time of the claim. See para 21120 of the DMG, which seems to confirm same. The second ground is language. I have had a brief scan of the DMG, but cannot see a specific reference to language skills. Para 21632 onwards discusses reasonable steps you should take, and 21634 lists typical factors to take into account. 'Skills' are referred to, but not language specifically.

I suppose common sense says that a person is likely to be less employable if they can't speak the lingo, but is that a deal buster? I do not have a final answer. However, your clients steps to learn English must be relevant.

Good luck with this,

Steve

  

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pclc
                              

legal advice worker, plumstead law centre
Member since
16th Feb 2006

RE: EEA nationals right to recieve JSA
Tue 27-Apr-10 01:06 PM

I also think the DWP are mixing up their law here - a jobseeker ( in the sense of an EU national who has never worked in the UK before ) has a right to reside ( after satisfying the old style HRT ) as a jobseeker under Reg 6(1)(a) EEA Immigration Regs 2006 - they are a "qualified person". They then have to satsfy all the domestic tests, in this case the labour market conditions on availability etc. The "reasonable prospects of being employed" concept doesn't come into this, as far as I can see, unless the client places some restrictions on the nature or hours of work that they could do.
I think the DWP are sneakily using Reg 6 (2)(b) - but this only applies to former workers who are now unemployed for more than 6 months, in which case Reg 6(2)(b)(iii) requires "he can provide evidence that he is seeking employment in the United Kingdom and has a genuine chance of being engaged" - might this be what is going on here? If so, they are using the wrong legal test for R2R and hence the confusion over what your client was doing before.

I have had numerous EU clients whose English is not great who successfully claim JSA after satisfying HRT.

  

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Steve Johnson
                              

Manager, Walthamstow CAB
Member since
24th Oct 2005

RE: EEA nationals right to recieve JSA
Tue 27-Apr-10 04:19 PM

As mentioned, the 'genuine chance' to find work requirement originated in Antonissen, and later surfaced as Article 14(4)(b) of the Residence Directive. Note that in both cases, the requirement is only relevant when considering whether somone has the right to remain in the Host State.

Then the draftspersons of the domestic regs decided to insert 'genuine chance' as a fundemental requirement to be a qualifying jobseeker under reg 6(4), this being way outside the context of the right to remain in the Host State. This is very unfair in my view, since the domestic regs only exist to serve as the correct local interpretation of the RD. Taking liberties.

You have already pointed out the other use of the phrase 'genuine chance' in the context of workers no longer working .

Still think there are good chances for this case.

Steve

  

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clairehodgson
                              

solicitor, CMH Solicitors, Durham
Member since
09th Apr 2009

RE: EEA nationals right to recieve JSA
Tue 27-Apr-10 09:38 PM

i know of a goodly number of people who've had lengthy working lives in this country but still can't speak english ... so what has language got to do with it? nothing.

  

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Dan_manville
                              

Caseworker, Birmingham Tribunal Unit
Member since
08th Jun 2004

RE: EEA nationals right to recieve JSA
Thu 29-Apr-10 12:17 PM

Re the 1-3 months bit, Richard Drabble QC drew question on that at the Family Law conference last year; that on the basis that nobody said "appreciable" in Nessa all those years ago.

If his reasoning in CJSA/0438/2009 is anything to go by UT Judge Levenson agrees...

  

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nevip
                              

welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since
22nd Jan 2004

RE: EEA nationals right to recieve JSA
Thu 29-Apr-10 12:49 PM

Hmmm! The following are extracts from CIS/3280/2003:

“In In re J (A Minor) (Abduction: Custody Rights) <1990> 2 A.C. 562, Lord Brandon used the expression “an appreciable period of time”. Having been referred to that case, Mr Commissioner Howell QC made some suggestions in R(IS) 6/96 as to what might amount to an appreciable period of time”.

“In Nessa, the House of Lords took a very similar approach. Lord Slynn of Hadley, with whom the other members of the House agreed, said –

'(A person who has never been to the United Kingdon before) must show residence in fact for a period which shows that the residence has become ‘habitual’ and, as I see it, will or is likely to continue to be habitual.

I do not consider that when he spoke of residence for an appreciable period, Lord Brandon meant more than this. It is a question of fact to be decided on the date where the determination has to be made on the circumstances of each case whether and when that habitual residence had been established.

“The requisite period is not a fixed period. It may be longer where there are doubts. It may be short (as the House accepted in In re S (A Minor) (Custody: Habitual Residence) (1998) AC 750, my speech at p. 763A, and Re F (A Minor) (Child Abduction) (1994) F.L.R. 548, 555, where Butler-Sloss LJ said: ‘A month can be … an appreciable period of time.’”)

“I am content to accept that, where a claimant is likely to remain in the United Kingdom permanently or for a substantial period of time, the conventional period that must have elapsed between his arrival and his establishing habitual residence is between one month and three months. However, those are not rigid limits. In an exceptional case, a person with a right of abode in the United Kingdom who, although not falling within the scope of regulation 21(3)(d), has been forced to flee another country and is nonetheless able to show a settled intention to remain in the United Kingdom might be accepted as habitually resident after less than a month of residence. Perhaps less exceptionally, a person with no ties to the United Kingdom and making no effort to become established here despite a vague intention to remain might be found not to be habitually resident in the United Kingdom until considerably longer than three months had elapsed”.




  

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pclc
                              

legal advice worker, plumstead law centre
Member since
16th Feb 2006

RE: EEA nationals right to recieve JSA
Thu 29-Apr-10 03:37 PM

Re my earlier post - I had overlooked Reg6(4) so the "genuine chance of being employed" does clearly apply to jobseekers who have never worked in the UK as well as former workers who have been unemployed over 6 months. Doh!
But I have never known the DWP to use this argument - if a client is seeking low skilled employment as many of my EU clients are, then lack of English is less of, or not a barrier at all - hence many of them take agency work as cleaners or in factories. The genuine chance of being engaged argument has to relate to the type of work the client is available for.

  

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Top Income Support & Jobseeker's Allowance topic #7939First topic | Last topic