This is obvious I think but I need all the conformation I can get:

EU citizen need to claim JSA as work seekers in order to pass the right to reside test

They are subject to the HRT

If they are (non working, or in this case working off the books) single parents they cannot claim IS until they have been here five years.

Thanks

EU citizens ( A8 and A2 nationals after 12 months + 30 days grace) claim jsa under Article 39 of the Treaty. SSPFA Amended Regs 2006, amended jsa regs as follow:

" Special cases: supplemental – persons from abroad
85A. —(1) "Person from abroad" means, subject to the following provisions of this regulation, a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.

(2) No claimant 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<35>; or

(b) Article 6 of Council Directive No. 2004/38/EC<36>.

IS regs were amended as follow:
Special cases: supplemental – persons from abroad
21AA.—(1) ”Person from abroad” means, subject to the following provisions of this
regulation, a claimant who is not habitually resident in the United Kingdom, the Channel
Islands, the Isle of Man or the Republic of Ireland.

(2) No claimant 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) regulation 14 of those Regulations, but only in a case where the right exists under
that regulation because the claimant 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;

(c) Article 6 of Council Directive No. 2004/38/EC; or

(d) Article 39 of the Treaty establishing the European Community (in a case where the
claimant is a person seeking work in the United Kingdom, the Channel Islands, the
Isle of Man or the Republic of Ireland).

Hence single parents cannot get IS.
The issue of 5 years residency is a bit more involved as the claimant residence should be a "lawful residence" under 2000 regs. If they are on IS all through out, then no and under 2000 regs work seekers were not "qualified persons"- see IEEA REGS 2006 – SCH 4 PARA 6. Hope it makes sense.

...but in the case of single parents, there has been an argument that they can claim IS as a lone parent with the right to reside IF the child is in UK education. This comes from the child having a right to education in the member state (art 12, Ec Reg 1612/68) and needing someone (ie the parent) to enable this by having the right to reside (as per Baumbast).

Certainly last year we won all (5-6 as I recall) such cases on this argument, but in about half of them the DWP appeal to Commissioners. Generally where the parent had then returned to work, no further appeal appears to have been made by DWP.

Also, this argument has reached the Commissioners and is not being looked at favourably - see discussion here:

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=103&topic_id=3424&mesg_id=3424&page=1)

Yes. Baumbast case.

But, have a look at CIS/623/2007. This has rejected Baumbast, when there is a possiblity that the primary carer can return ( and had lived there)to the original EU state whence she came.

Yes I agree.

I think this argument will become less likely to be accepted at tribunals in 2008, although I understand at least one of these OSSC decisions may be challenged further (as in the replies to the Baumbast Again thread).

As I understand Baumbast, it is only likely to apply where the child became established in education when the parent was being a worker or self employed person.

I'm worried about the thing you said about "working outside the books". If your client is an A8 national and is working illegally, outside the worker registration scheme, that doesn't count for establishing the 1 year that takes them outside the A8 registration scheme and very probably prevents the 5 year period from ever starting, as they are not living here legally but both they and theri employer are acting illegally. It may also prevent the Baumbast exception from applying too.