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Right to reside through long term JSA clam?
Scenario is as follows :
EEA young person (not A8 or similar) came to UK in 2007 was than aged 16 and never entered education but registered as jobseeker and kept to the work plan did mandatory training , did language course etc,
She was paid throughout until she failed the genuine work test.in May
She has found work but is only earning minimum wage on 16 hour contract so is below the earnings treshold although during the holiday period she has been able to do regular overtime
She cannot establish status by any other means as family members are definetely not qualifying
So question is would it be worth to try a late MR on the grounds that she had been JSA claimant for more than 5 years in view of the latest guidance ? Or is the fact that she is now working and therefore broke her claim any making that a useless strategy because if she had to sign again she would be under the new Regs any way?
As always, thank you very much for all the help
Hi
I am sorry not to be able to assist as I also have quite similar case where I am stuck at the moment to find a solution.
Client we are assisting entered 2005; he is Cypriot national and has family ties in the UK.
Client is single, no children, has been on IS incapacity benefit until transferred to the ESA - but with the new regulations coming into force his claim failed HRT as he is EU national and has not derivation rights to maintain residence.
Client is appealing ESA - meantime he signed on for JSA.
He continued to receive JSA until JSA stopped because of GPoW and HRT .
JSA being appealed (the tribunals incorporated both cases together as they have similar issue HRT) arguing the right to reside through long term residence in the UK, English languages and the medical conditions limiting chances to find work.
Can anyone also help with any advice or case law that can help this person?
Many thanks in advance !
The RCT jobseeker: yes, very good chance of success (even if it takes a Tribunal to do it). If she was genuinely seeking work for a solid five years up to 2012 she acquired a permanent right of residence at that stage and has not lost it. Any benefit claims, broken benefit claims, jobs or lack of jobs since then don’t change anything. On the face of it keeping a JSA claim going for five years is enough evidence to support a right to reside as a jobseeker all that time.
The ESA case is more difficult because it is hard to see what right of residence he has had from day to day while in the UK that would have earned him a permanent right to reside by now. He might stand a better chance of he can rely on family members. Can you say:
- How old is he?
- What family members does he have in the UK and of what nationality?
- What do those family members do and what have they been doing while your client has been here?
On the first case, I think she has both a permanent right to reside, but also an ongoing right as a worker. The “threshold” test is only the first part of a two tier test. If your client has this amount of earnings or more, then she automatically passes the “genuine and effective test”. If she does not then they have to consider separately whether the work is genuine and effective, based on the existing case law which is cited in CPAG. I can’t see how, on the current case law, 16 hours over a period of a month or so, would not qualify her as a worker. Ruth
The RCT jobseeker: yes, very good chance of success (even if it takes a Tribunal to do it). If she was genuinely seeking work for a solid five years up to 2012 she acquired a permanent right of residence at that stage and has not lost it. Any benefit claims, broken benefit claims, jobs or lack of jobs since then don’t change anything. On the face of it keeping a JSA claim going for five years is enough evidence to support a right to reside as a jobseeker all that time.
The ESA case is more difficult because it is hard to see what right of residence he has had from day to day while in the UK that would have earned him a permanent right to reside by now. He might stand a better chance of he can rely on family members. Can you say:
- How old is he?
- What family members does he have in the UK and of what nationality?
- What do those family members do and what have they been doing while your client has been here?
- he is 58
- he has brother and sister both UK nationals
- his brother works but sister not
- if any chances on relying on family members can you state any cselaws?
- and also if the family members are EU nationals at the same time - can we use this? Many thanks