RTR and A8 national, IS

I have a client who is (was) an A8 national, lone parent, children under 7 in education, separated from father of children but he previously worked in U.K.  Yet to confirm but looks like she should be able to get right to reside under Teixera / Ibrahim. Does it matter retrospectively if father of children registered his work or will removal of restrictions on A8’s now eliminate that requirement even if work occurred before May 2011.

Any assistance would be much appreciated. Obviously IS would be better for this client but don’t want to waste time arguing case if no hope when she could claim JSA straightaway.

she will have a right to reside from being carer of children in education and because either she or father of children have exercised their treaty rights by working. She has children under 7, is a lone parent and therefore if right to reside can be established would be entitled to IS. Prior to May 2011, that work would have had to be registered. I assume that work carried out since May 2011 obviously would not have to be registered but not sure if work before May 2011 would still have had to be even if the claim is post May 2011.

Does it matter retrospectively if father of children registered his work or will removal of restrictions on A8’s now eliminate that requirement even if work occurred before May 2011.

My understanding is that removal of restrictions will allow her claim for IS to be accepted. Had a A8 national being paid IS (incorrectly) pre May 2011as a Carer. Was able to get her flipped to JSA (while still being a Carer) which regained her right to reside.
I’m now assisting her to re-claim IS as she has met the WRS and spent over 5 years legally in the UK. So I hope I’m understanding this correctly!!
TFIF

If the father is an A8 national and has worked at some point in the UK (prior to May 2011 when the WRS rules applied) then the first month of any work would be considered as “working legally” as the Accession Regs would have treated him as working for an authorised employer for the first month. If the children were in the UK or even better, in education, during the month of legal work, then it may be arguable that Ibrahim/Teixeira can apply now. There may be an issue of whether a month of work is enough to get worker status although the CofA decision in Barry would help there. It’s a potential argument anyway for the IS claim?

Thanks for all the above - I tend to think that any work would have to be legal and therefore if before May 2011 would have had to be registered but I hadn’t considered arguing that the first month would be legal because registeration does not have to take place till end of first month of employment. Does not failure to then register render that first month illegal?

No, because there was no requirement to register the work for the first month.

The scope of Teixeira has been discussed in detail on here before with regard to A8 nationals.  There, I held the view, which I still maintain, that the parent does not have to be working when the child goes into education as long as the child installed himself with the parent while he was at that time exercising treaty rights as a migrant worker.

I agree with nevip, in light of the ECJ’s decisions on this I cannot see how Judge Jacob’s decision that there must be a common period where parent is working and child is also in school can stand. We have had a number of claims turned down on this basis which are slowly working their way through the appeals system now. The only reason I had said that it was even better if the child was in school during the parent’s one month of legal work is thatyou avoid getting the claim refused on the “common period” point rather than on the substantive point of whether the one month is sufficient to become a worker.

I don’t know if I agree with your characterisation of the Barry decision though hpinfopb. Lloyd LJ expressly states in paragraphs 43 and 44 that in some cases it may be necessary to look back a person’s previous work history but that in this case it wasn’t necessary as the work he did at Wimbledon was sufficient. And this is arguably supported by Ninni-Orasche, where the ECJ found that 2 and a half months of work was sufficient to obtain worker status as long as the activity performed is not purely marginal and ancillary. The court expressly stated that the fact that Mrs Ninni-Orasche had been in the member state for a few years (it seems not performing any economic activity) before starting such short term work could not be taken into account as a factor when determining whether she was a worker for that period.

I think there is merit in the argument that the first month of work for an A8 national will always be legal and so could potentially bestow worker status. It’s further supported by the legislation specifically allowing for a A8 national to rely on 6(2) of the EEA Regs if they lose employment in the first month, which presupposes that it is possible for them to get worker status within the first month.

If it’s possible to show worker status in that first month of employment, then Ibrahim/Teixeira should apply although I’ll admit it is stretching the legislation and case law to its limits!