UC & Right to Reside

I need to clarify a UC – Right to Reside issue.

My client came to the UK around September 1994 and worked only until February 1995 as a chef.

He then became ill (a combination of an HIV diagnosis and heroin addiction) and was admitted to hospital. He has not worked since.

He has been in receipt of income support on the basis of incapacity and then income-related employment and support allowance since then until 11/10/2017 when he was notified he had failed the WCA.

There is an appeal outstanding against the WCA decision.

However, the claimant claimed UC on 16/10/2017. He is an Italian national and benefit was refused on R2R/HRT grounds.

We are trying to argue that he could have obtained a right to reside in less than 5 years on the basis of Regulation 5(3), I(EEA) Regs 2016 (which I understand was not a new right under the 2004 directive and existed in the 1990’s) which states:

“Worker or self-employed person who has ceased activity”
5.—(1) In these Regulations, “worker or self-employed person who has ceased activity” means an EEA national who satisfies a condition in paragraph (2), (3), (4) or (5).
(3) The condition in this paragraph is that the person terminates activity in the United Kingdom as a worker or self-employed person as a result of permanent incapacity to work; and—
(a)had resided in the United Kingdom continuously for more than two years prior to the termination; or
(b)the incapacity is the result of an accident at work or an occupational disease that entitles the person to a pension payable in full or in part by an institution in the United Kingdom.

Such that he has a right of permanent residence under Regulation 15(1)(c).

The client only entered the UK in September 1994 and worked only for a few months until February 1995 following which he was unable to work due to illness – so about 6 months work. I think that I can argue that he became permanently incapable of work after 2 years residence in the UK. Under these circumstances can I argue that paragraph 3(a) applies as he was temporarily incapable of work from February 1995 – so he retained his worker status until he became permanently incapable of work. Does the line “had resided in the United Kingdom continuously for more than two years prior to the termination” apply to actual work as opposed to work and retained worker status.

Alternatively, given that he worked for 6 months and then was temporarily incapable of work – can we argue that he retained worker status for an extended period of time so that a combination of work and retained worker status meant he reached 5 years legally residing in the UK such that he obtained a right of permanent residence down this route under the 2004 directive/ 2006 Regs?

Any help would be gratefully appreciated.