Migrant worker - Polish/German

My client came to the UK with his wife in 2001. They are both Polish nationals, but his wife has a German grandfather. They were given the right to reside on the basis of his wife being an EEA national, exercising a right in the UK under the Treaty of Rome.  They are now divorced, but both still live in the UK. My client worked for an employer from 11/11/2002 to August 2007 and has P60s up to April 2007. He was self employed up to 18/04/2010, when he stopped getting work and signed on for JSA from 18/05/2010. He has been refused JSA - failed right to reside test and appealed that decision. He has never registered his employment with an employer under the Workers Registration Scheme and we are struggling to get Inland Revenue documents to support his self employment.
What is the best way to tackle this? As his wife was accepted as EEA national on the grounds of her grandfather’s nationality and even though they are divorced, can I claim he has the right to reside based on her status? or even though Poland is an A8 country my client had been working legally for a continuous period of 12 months on 30/04/2004? or he has been living and working in the UK for more than 5 years?

When did they divorce?

They divorced in October 2009.

Have a look at Article 13 of the Residence Directive 2004/38/EC which gives protection to family members of nationals of member States on divorce (etc). There are special provisions where this occurs before the family member has acquired the right of residence under the 5 year rule.

Art. 13 provisions are implemented into UK law by reg. 10 of the Immigration (European Economic Area) Regulations 2006.

But there may be a simpler route.

There are two potential grounds of appeal here;

1) Straightforward entitlement to JSA

Your client was not required to register under the Workers Registration Scheme - he had been working legally for a continuous period of 12 months as at 30/4/2004 - see reg. 2(3) of the Accession (Immigration and Worker Registration) Regulations 2004. Therefore, the usual problems that arise with self-employed A8 nationals who cease self-employment (i.e. not required to register under the WRS because self-employed, but once self-employment ends still need to complete 12 months registered work before claiming means-tested benefits) does not arise in this case. Your client is a workseeker, plain and simple and there is no bar to his being entitled to JSA.

2) Entitlement to JSA and potential permanent right to reside

Your client had a right of admission to the UK as the spouse of an EEA national under the predecessor of the EEA Regs 2006 - those are the Immigration (European Economic Area) Regulations 2000. His right would have been under reg. 12 (2) of the 2000 Regulations.

By virtue of regulation 14 (1) of those regulations your client’s wife had a right to reside in the UK for so long as she remained a qualified person. As the spouse of a qualified person, your client would also have had a right to reside in the UK – regulation 14 (2) of the 2000 regulations.

From 30/4/2006, the 2000 regulations were revoked and replaced by the Immigration (European Economic Area) Regulations 2006. Your client’s wife may have remained a “qualified person” as defined by regulation 6 (1)(a) of the 2006 regulations. However, from that date, as your client was a worker (and not required to register that work - see above) he was also a qualified person in his own right. He will have remained a qualified person whilst he was working, but would also have had a right to reside during any period when he was not working but his wife was a qualified person (i.e. when she was working or retained worker status) – regulations 14 (1) and (2) of the 2006 regulations.

The 2006 regulations implement into UK legislation Directive 2004/38/EC (the Citizenship Directive”). Article 16 (1) of the Directive grants a right of permanent residence to EEA nationals who have resided legally (i.e. – in the exercise of a Treaty right) in a host member state for a continuous period of five years. Article 16 (1) is implemented by regulation 15 (1) of the 2006 regulations. Paragraph 4 of Schedule 6 to the 2006 regulations provides that, for the purposes of calculating periods of activity and residence carried out in accordance with those regulations, any period in which a person carried out activity or was resident in accordance with the 2000 regulations shall be treated as having been carried out in accordance with the 2006 regulations.

Where all this leaves us in calculating the period of five years is as follows;

a) Your client may have aquired a right of permanent residence by 30/4/2009 - the client remained a spouse until the divorce was finalised in October 2009 (but I think the divorce issue may be a red herring anyway) and so long as you can overcome the potential difficulty with the period after August 2007 when he ceased to be an employee, you will be home and dry. The potential problem is that you say “My client worked for an employer from 11/11/2002 to August 2007 and has P60s up to April 2007. He was self employed up to 18/04/2010” - I take this to mean that he moved straight from employment to self-employment, but it isn’t actually clear. So long as either he or his wife were exercising a treaty right (worker, self-employed worker, workseeker) continuously between August 2007 and 30/4/2009 it should be fine.

b) If, however, there is a gap after August 2007 through to any point up to 30/4/2009, it may be necessary to try to get the continuous period of 5 years residence under the regs to start earlier (i.e. by taking advantage of the provision in para 4 of Schedule 6 to the 2006 regs) so as to be able to get periods before 30/4/2004 to count. The only difficulty with this is that prior to 30/4/2004 your client had no independent right to reside - any rights he had were contingent on his wife being a qualified person. What this means is that if you want to use any period before 30/4/2004 to make up the continuous 5 years, you will only be able to count those periods when the wife was a qualified person - although your client was entitled to work, any work he did do is irrelevant.

Hope this helps.

Oh and just to add for the purposes of clarity, the significance of the 30/4/2004 date is that this is when Poland acceded to the EU - so before this date your client could not have exercised Treaty rights and would have been in same position a non-EEA national spouse of an EEA national is in now; that is, they are legally able to work but that work is not carried out in exercise of a Treaty right so cannot be included in periods that count towards permanent residence.

Thank you!!!
You have completely clarified the situation for me and supplied all the relevant regulations. I ‘ll have another discussion with my client about when he went from being employed to being self employed.
I can’t thank you enough!