Business Permit? JSA refused R2R

Anyone can enlighten me?

Client is Lithuanian, came to the UK in Aug 2003.  He was granted twelve months leave to remain in the UK as a self employed person.  Client worked as a self employed worker from 2003 to Aug 2009.  Client provided me with evidence of a registration card from 2004 and tax calculations from HMRC from 03/04 – 08/09. He ceased work due to economic downturn.

Made a claim for JSA was awarded 6 months then his claim stopped.  He made a further claim and was refused on R2R.  Cut a long story short, he went to tribunal and lost. He came to us and we wrote of for SWR.

SWR state client is not entitled to JSA because he has not shown that he has a legal right to work in the UK.  The only evidence they would accept is a relevant stamp in his passport and/or a business permit??

As he has workers registration card (although I believe he does not have to register as a self employed person), registered with HMRC and has worked for over 12 months, should he not have the right to reside?? 

In addition to this the client states that his wife (they married in June 2006 and have four children) was granted indefinite leave to remain in the UK on 14/09/2004.  It appears this has not even been considered.  Would he have the right to reside as a family member?

I am thinking of requesting the decision be set aside?

As you can see benefits and R2R etc is not one of my strong points?  I would be grateful for any information anyone can offer.

Ps the client is still signing at JC but not receiving any payments?

Hi Cookie

Judge Rowland made a comment about one of the issues you raise in CJSA/2687/2007 when he says:

“The second anomaly, which may be unintentional, is that a person who has been self-employed for over 12 months cannot thereby avoid being an accession State worker requiring registration if he or she ceases trading and becomes a jobseeker, even if the self-employment was registered with the Inland Revenue for tax and national Insurance purposes.  That seems unsatisfactory but I need not consider whether a claimant who is deprived of income-based jobseeker’s allowance because he or she was formerly self-employed, rather than employed, has any remedy because there is no evidence that the claimant in the present case was self-employed for a continuous period of 12 months after Lithuania’s accession to the European Union.”

Obviously this is obiter dicta. I’m not sure how a tribunal would decide it. I think they would probably agree with Judge Rowland although I don’t think that would be correct.

Anyway I’m not sure if such arguments are relevant to you. You say that the client’s wife has had indefinite leave to remain since 2004. Regulation 2(5B) of the Accession (Immigration and Worker Registration) Regulations 2004/1219 states that;

“(5B) A national of a relevant accession State is not an accession State worker requiring registration during any period in which that national is the spouse, civil partner or child under 18 of a person who has leave to enter or remain in the United Kingdom under the 1971 Act that allows that person to work in the United Kingdom.”

This was brought into force on the 2 October 2009 by the Accession (Worker Authorisation and Worker Registration) (Amendment) Regulations 2009/2426.

Just out of interest what nationality is your client’s wife?

Hope this helps a bit

Stuart

Hi Stuart,

Thank you so much for your input it helps a little.  I believe the “Judge Rowland” case may help.  Would you recommend quoting this case when I ask for the decision to be set aside?  I’ve not had much experience in taking cases further following a first tier tribunal. 

His Wife is also Lithuanian.

Thanks

Nikki

I presume what the DWP are getting at by their comment that he has not shown that he has the legal right to work in the UK, is was he exempt from the WRS at date of accession? As a self employed person he would bever have registered so that is problematic for his JSA claim.

However, he may have been exempt from WRS anyway under Reg 2 Accession(Immigration and Worker Registration)Regs 2004

Accession State worker requiring registration”
2.—(1) Subject to the following paragraphs of this regulation, “accession State worker requiring registration” means a national of a relevant accession State working in the United Kingdom during the accession period.

(2) A national of a relevant accession State is not an accession State worker requiring registration if on 30th April 2004 he had leave to enter or remain in the United Kingdom under the 1971 Act and that leave was not subject to any condition restricting his employment.

(3) A national of a relevant accession State is not an accession State worker requiring registration if he was legally working in the United Kingdom on 30th April 2004 and had been legally working in the United Kingdom without interruption throughout the period of 12 months ending on that date.

(4) A national of a relevant accession State who legally works in the United Kingdom without interruption for a period of 12 months falling partly or wholly after 30th April 2004 shall cease to be an accession State worker requiring registration at the end of that period of 12 months.

Your best bet is probably (3) and (4) above - (2) would be out if he was only allowed to be self employed (which was common for pre 2004 A8 nationals) - if he had a business permit then he was legally working for purposes of either (3) or (4).

Also consider permanent right to reside due to more than 5 years as self employed, either from 01/05/04 if you are not sure about his legal staus prior to accession, or from time he started self employment if he had permission.

PCLC

Thank you for your response.  I can see that this is going to be a little more difficult than I first anticipated!

Back to the drawing board I think!!