Another A8 query for ESA

A Polish client who came to the UK in 2006 has registered some of his work from 2007 but has never given an end date (although he has actually completed his 12 months registered work).
He has had a heart bypass and is now permanently unable to work and has tried to claim IB ESA which has been refused on the basis that he has no R2R.
We’ve sent him away today to try and find some proof of his end date of employement as it was fairly recent but I just wanted to check that he could actually retain his worker status if he can indeed get his WR certificate to show he has completed 12 months of registered employment or is it just in cases where the illness is temporary?
Thanks,
Lauren

It will depend on whether he has now established a permenant right of residence or not. If not he will have to argue that his incapacity for work is temporary (even if long term).

Sound like he may have acquired a permanent right to reside under the rules for those who are permanently incapacitated - see our handbook, bottom of p 1464/reg.s 5((3)(b)(i) and 15(c) EEA Regs/para. 071196 - http://www.dwp.gov.uk/docs/dmgch0703.pdf

He has done 5 years of work in the UK but as he hasn’t registered most of it doesn’t that mean he hasn’t actually resided ‘legally’ in the UK for 5 years?

He may not have done the required 5 years of work in order to pass the right to reside test under permanent residence.  However, he may still pass the right to reside test as a qualified person under Reg. 5(3) Immigration EEA Regs, if he terminates his activity in the UK as a worker as a result of a permanent incapacity to work and has resided in the UK continuously for more than 2 years prior to the termination.

Also remember that in this context ‘permanent incapacity’ is a concept in EU law - it is not decided by reference to the WCA (or the former PCA if an IS or IB case). It simply requires a letter from his GP or consultant that confirms that he is indeed permanently incapable of working.

Thank you everyone. I’ll do as suggested and let you know the outcome.

Lauren