new ibJSA claim after 1 May 2011 for A8 national

Clt has been verbally advised that new claim for JSA has been refused (we are waiting for the decision letter for exact reasons).  Clt has been in GB since 2004.  He has worked for the majority of the time but has less then 12 months work registered with Wokers Registration scheme.

My understanding is that the Accession transitional arrangements have ceased and from/including 1 May A8 national workseekers have the same entitlement to out of work benefits as other EAA nationals. However Clt must still satisfy HRT and R2R as usual. 

However DWP state that new rules only apply to nationals who enter GB from 1 May only NOT for those who have been in GB prior to 1 May and who make a new claim.  These claimants still need to satisfy the old restrictions.  Is this correct?  Can you point me in the direction of any guidance.

Thanks in advance for any help.

Memo DMG 13/11
A8 NATIONALS - ENDING OF RESTRICTIONS ON RIGHT TO RESIDE
Contents Paragraphs
Introduction 1 - 2
Revocation 3
Effect on JSA(IB) 4
Savings Provisions
Definition 5 - 6
Registration 7
Right to reside 8 - 10
Permanent right to reside 11
Workers who have ceased activity 12 - 13
Annotations
Contact
INTRODUCTION
1
Regulations restricting the right of A8 nationals to work in the UK cease to apply from
1.5.11.
This Memo provides guidance for DMs on issues that arise from this change.
In particular guidance is given on the effect of the Accession (Immigration and Worker
Registration (Revocation, Savings and Consequential Provisions) Regulations 20111
(“the Accession Revocation Regs”).
1 SI 2011 No. 544
2
Many A8 nationals will already be exempt from the requirement to register their emplyment, for example because they have worked legally in the UK for an uninterrupted period of 12 months after 30.4.04 (see DMG 071286 and 071287). These nationals will already be in the same position as nationals of non A8/A2 EC required to register as at 30.4.11.
countries.
This guidance concentrates on the position of A8 nationals who are/were
REVOCATION
3 Subject to the savings provisions described below, the Accession Regs 2004 are revoked1 with effect from 1.5.11.
1 Accession Revocation Regs, reg 2
Effect on JSA(IB)
4 With effect from 1.5.11, A8 nationals can be jobseekers. This means that, for the purpose of JSA(IB) they have a right to reside if they are seeking work1. DMs are reminded however that JSA(IB) claimants with a right to reside as jobseekers must be actually habitually resident in the UK (see DMG 071340 et seq).
1 JSA Regs, reg 85A(2) & (3); Imm (EEA) Regs, reg 6(1)(a)

Thank you for your replies.

Clt has now received decision letter stating that hehas not provided evidence to show that he is an EEA national exercising EU Treaty rights in the UK.  Therefore he has not shown that he has a right to reside in the UK so has an applicable amount of nil.

Clt does not have any form of ID/passport however I think this is a side issue because even if Clt could provide ID/passport I’m not sure Clt will satisfy R2R.  If I understand DMG 071191 correctly, Clt will not retain worker status because he was not employed for a year or more before becoming unemployed therefore he will fail R2R?  Is this correct?  Any help would be appreciated.  Thanks in advance.

Memo DMG 13/11

Paragraph 9. 

With effect from 1.5.11, accession workers (within the definition in paragraphs 5 and 6 above) will retain worker status when

1. they become unable to work, become unemployed or ceased to work in the circumstances described in DMG 071191 on or after 1.5.11 or

2. they had ceased working etc in the circumstances described in DMG 071191 for an authorised employer within the first month of employment and, at 30.4.11 they were still in that one month period (starting from when the work began)

It follows an A8 national requiring registration as at 30.4.11 who ceased work in the circumstances in DMG 071191 before 1.5.11 will not retain worker status purely on account of the ending of A8 restrictions.

Retaining worker or self-employed person status
071191 [See Memo DMG 13/11] A worker retains worker status when he stops working if

1. he is temporarily unable to work due to illness or accident1 or
2. he is in duly recorded involuntary unemployment after having been employed in the UK, as long as he has registered as a jobseeker with the relevant employment office and
2.1 he was employed for a year or more before becoming unemployed
2.2 he has been unemployed for no more than six months or
2.3 he can provide evidence that he is seeking employment in the UK and has a genuine chance of being engaged2 or
3. he is involuntarily unemployed and has started vocational training3 or
4. he has voluntarily stopped working and has started vocational training which is related to his last employment4.

1 Imm (EEA) Regs, reg 6(2)(a); 2 reg 6(2)(b); 3 reg 6(2)(c); 4 reg 6(2)(d)

dbcwru - 08 July 2011 10:58 AM

He has worked for the majority of the time but has less then 12 months work registered with Wokers Registration scheme.

However DWP state that new rules only apply to nationals who enter GB from 1 May only NOT for those who have been in GB prior to 1 May and who make a new claim.  These claimants still need to satisfy the old restrictions.  Is this correct?  Can you point me in the direction of any guidance.

Not completing the 12 months of WRS is not a problem in itself. The DWP is simply wrong is saying only new entries are subject to the new rules. It also applies to A8s that have already been in the UK.

You have statee he has not completed 12 months but can you confirm the last day he worked and if it was under the WRS?

I think, that is if it applies, the only problem he may have is claiming HB/CTB. If JSA(IB) is not awarded then he MAY not qualify(Very likely if he hasn’t retained worker status).

Clt’s last registered work was 22 Jan 2007.  Clt provided p45 confirming unregistered work leaving date 12 November 2010. 

Please can you explain your reasoning/provide reference for:

Not completing the 12 months of WRS is not a problem in itself. The DWP is simply wrong is saying only new entries are subject to the new rules. It also applies to A8s that have already been in the UK.

Thanks in advance.

http://www.airecentre.org/data/files/resources/12/FAQs-rights-of-A8s-after-1-May-2011.pdf

http://england.shelter.org.uk/get_advice/homelessness/eu_and_eea_nationals/rights_of_a8_nationals

They are treated exactly like any other EEA. As your claimant has been in the country for over 3 months, working legally or otherwise for some of the period, then he has R2R and HRT doesn’t apply. Like said earlier I think his chances of being entitled to HB/CTB, based on what you have now posted, is probably nil unless JSA(IB) is awarded because he can’t retain what he does not have, “worker” status, and that is superior to the status of “Job Seeker”.