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retaining worker status following under 1 yrs employment
Hi,
I was wondering if anyone could offer their thoughts on whether I’m on track with this one…preparing a submission (for FTT) arguing entitlement to ESA based on retention of worker status. One thrust ofthe case is arguing a perm R2R, but this relies on the question of lawfulness of WRS 2009-2011 (pls see thread - http://www.rightsnet.org.uk/forums/viewthread/7762/P15).
I wanted to provide secondary argument of retained worker status based on following activity since end of accession period:
May 2011-November 2011: regular employment
November 2011-Nov 2013: claiming JSA
Nov 2013-Nov 2014: claiming C-based ESA
Feb 2015: claim for IR-ESA refused (decision we are appealing)
I have provided the following argument re. retaining worker status following less than 1 yrs employment:
From his contributions records, we can see Mr A remained entitled to jobseeker’s allowance for a continuous period, bar one week when he holidayed in Poland, between 09/11/2011 and a claim for employment support allowance on 16/11/2013. Article 7(3)(c) of Directive 2004/38 states that a Union citizen who is in duly recorded involuntary unemployment shall retain worker status for no less than six months. In paragraph 54 of [2015] UKUT 128 (AAC), Judge White writes that it is “…eminently reasonable to conclude that there is no difficulty in a person retaining worker status under Article 7(3)(b) of the Citizenship Directive for a year in the absence of some intervening event which indicates that the person has withdrawn from the labour market entirely”. It is clear that in Mr A’s case there is nothing to suggest a withdrawal from the labour market in this period. It is further notable that the period in question fell prior to amendments to domestic legislation, limiting worker status to six months of involuntary unemployment. Prior to amendments, Regulation 6(b)(iii) of The Immigration (European Economic Area) Regulations 2006 states that a person can retain worker status for a period greater than six months providing he can provide evidence that he is seeking employment and has a genuine prospect of being engaged. Given that Mr A remained entitled to jobseeker’s allowance throughout the period in question, and given his work history prior to this period, it is clear that he meets these criteria.
Do others think this argument carries weight?