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ESA and Polish National
I don’t usually deal with these cases so would be grateful for some pointers to save me some valuable time which is very much in short supply at the mo.
19 yo Polish woman who came to the UK with her parents 7 or 8 years ago but is now NFA as recently estranged from them.
Is she entitled to any benefits at all? She’s looking for some pt work but is also seeing the doc today for depression.
19 yo Polish woman who came to the UK with her parents 7 or 8 years ago but is now NFA as recently estranged from them.
Have the parents been working legally the whole time and are thery still working?
She says her dad has worked and still does but she really won’t know the details of any registration etc
Well she could already have a permanent right of residency based on the fact that she has been the dependant of an A8 national exercising treaty rights for 5 years. First 12 months would have to be registered work, for either parent, though.
thank you chacha, this is what I read into it but needed someone to verify it. Is this both JSA and ESA (and indeed all benefits?)
Hi Sue.
1. ESA under the “in youth” rules does not have a requirement that the claimant has a right to reside. If she can get a “fit note” for last 196 days then she can claim this regardless of whether she has a right to reside. However note my comments below on JSA
2. DLA - also no right to reside test.
3. In terms of HB and CTB then she does need a right to reside.
4. If her parents have a right to reside (other than the right to reside as a jobseeker etc) then she will also have a right of residence sufficient to claim HB and CTB. This is because a person aged under 21 counts as a “family member” of their parents regardless of whether they are living with them/speaking to them/supported by them etc.
5. This is clear from the following:
a) In CF/1863/2007 the claimant was refused Child Benefit on the basis she had no right of residence. She was aged under 21 and was not living with her father, who appeared to be a worker or someone who retained that status. The Commissioner explains:
The claimant’s case was that her father must have been accepted as a qualified person under the 2004 Regulations and the EEA Regulations to be awarded the benefits that he was receiving. HMRC submitted to the appeal tribunal that that did not work, because once the claimant ceased to reside in the same household as her father she could no longer be regarded as his dependant. The appeal tribunal took the same view. It said this in its statement of reasons:
“Although the circumstance in which her father was awarded benefits are far from clear, the Appellant’s first argument was that her father was treated as qualified person, she was under 21 and had been a dependent, thus also having the right to reside. I have rejected this argument simply on the facts. She had ceased to live with her father long before the claim and was maintaining herself.”
6. That view is inconsistent in law with the plain words of regulation 7(1)(b) of the EEA Regulations. The claimant is a direct descendant of her father and was under 21 at the date of the child benefit claim and decision. Accordingly, she satisfied the definition of “family member” without the need to satisfy any further condition about actually being a dependant of her father. Thus, if her father was a qualified person, with a right to reside under the Regulations, so was the claimant. That point was specifically identified when I gave directions on the appeal (leave to appeal having been granted by the chairman of the appeal tribunal) and was accepted in the submission dated 3 September 2007 on behalf of HMRC. It is plainly sound in law and requires the setting aside of the appeal tribunal’s decision.
b) Similarly in Diatta v Land Berlin Case C-267/83 the European Court of Justice held that:
18 IN PROVIDING THAT A MEMBER OF A MIGRANT WORKER ’ S FAMILY HAS THE RIGHT TO INSTALL HIMSELF WITH THE WORKER , ARTICLE 10 OF THE REGULATION DOES NOT REQUIRE THAT THE MEMBER OF THE FAMILY IN QUESTION MUST LIVE PERMANENTLY WITH THE WORKER , BUT , AS IS CLEAR FROM ARTICLE 10 ( 3 ), ONLY THAT THE ACCOMMODATION WHICH THE WORKER HAS AVAILABLE MUST BE SUCH AS MAY BE CONSIDERED NORMAL FOR THE PURPOSE OF ACCOMMODATING HIS FAMILY . A REQUIREMENT THAT THE FAMILY MUST LIVE UNDER THE SAME ROOF PERMANENTLY CANNOT BE IMPLIED .
Note that the Article 10 referred to is that of EC Regulation 1612/68. The requirement that the worker have available accommodation for their family members has not been carried over into Directive 2004/38 EC which is designed to strengthen free movement rights (see recital 3 of the Directive).
6. However, if her parents do not have a present right of residence (and/or client did not have 5 years with a right of residence as their family member at earlier period) then things are more difficult: the easiest way for the client to get HB/CTB in these circumstances is for her to claim ibJSA- she can do this (from 01/05/2011) as she will have a right of residence as a jobseeeker. Although that is not a sufficient right of residence to be entitled to HB/CTB, a person getting ibJSA cannot be refused HB/CTB on the basis they are a person from abroad (eg it passports her through the right to reside test).
7. If she cannot claim ibJSA (can’t cope with the signing on etc) and does not have a right to reside through her parents, and she cannot get the backdated medical certificate then you could consider advising a claim to ESA in any event. The irESA has a condition that a jobseeker right of residence is not sufficient. However, if the claimant was in fact looking for work and had a reasonable chance of getting it she would have a right of residence as a jobseeker. She could then attempt to argue that this right of residence had to be regarded as sufficient for ESA and that the regulation to the contrary had to be disapplied as it was contrary to EU law. This argument would work as follows (see next post- won’t fit in here -it is a submission extract so formatting not so well preserved- hope you can still work out what is quotation from decision and what is my text):
1. Reg 70(2) of the ESA Regulations is as follows:
(2) A claimant must not be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless the claimant has a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland other than a right to reside which falls within paragraph (3).
2. So a claimant who has a right to reside other than one of the prohibited rights listed in Reg 70(3) will be habitually resident (provided of course they are also habitually resident in fact which is not in dispute in the present case). Amongst the rights of residence a person may have which Reg 70(3) explicitly excludes as a qualifying right of residence, are a right to reside as a jobseeker either under the I(EEA) Regs 2006 or indeed Article 39 EC (now Article 45 TFEU):
(3) A right to reside falls within this paragraph if it is one which exists by virtue of, or in accordance with, one or more of the following—
(a) […]
(b)regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the claimant is—
(i)a jobseeker for the purpose of the definition of “qualified person” in regulation 6(1) of those Regulations; or
(ii)a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker;
(c) […];or
(d)Article 39 of the Treaty establishing the European Community (in a case where the claimant is a person seeking work in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland).
3. In Athanasios Vatsouras and Josif Koupatantze v Arbeitsgemeinschaft (ARGE) Nürnberg (Joined Cases C-22/08 and C-23/08) the European Court of Justice considered the lawfulness of a German law which sought to limit entitlement to an unemployment benefit in cases where the claimant’s right of residence was solely as a jobseeker: the ECJ set out the provisions of the relevant German legislation at paras 8 and 9 of their decision.
4. The ECJ held that it was not permissible to deny entitlement to a benefit intended to facilitate access to the labour market to someone who had a right of residence as a jobseeker. It further held that the national court needed to work out by looking at an individual benefit’s purposes and conditions whether that benefit was intended to facilitate access to the labour market:
37. Furthermore, in view of the establishment of citizenship of the Union and the interpretation of the right to equal treatment enjoyed by citizens of the Union, it is no longer possible to exclude from the scope of Article 39(2) EC a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State (Case C 138/02 Collins [2004] ECR I 2703, paragraph 63, and Ioannidis, paragraph 22).
38. It is, however, legitimate for a Member State to grant such an allowance only after it has been possible to establish a real link between the job-seeker and the labour market of that State (Case C 224/98 D’Hoop [2002] ECR I 6191, paragraph 38, and Ioannidis, paragraph 30).
39 The existence of such a link can be determined, in particular, by establishing that the person concerned has, for a reasonable period, in fact genuinely sought work in the Member State in question (Collins, paragraph 70).
40 It follows that nationals of the Member States seeking employment in another Member State who have established real links with the labour market of that State can rely on Article 39(2) EC in order to receive a benefit of a financial nature intended to facilitate access to the labour market.
41 It is for the competent national authorities and, where appropriate, the national courts not only to establish the existence of a real link with the labour market, but also to assess the constituent elements of that benefit, in particular its purposes and the conditions subject to which it is granted.
5. It is submitted that ESA is plainly a benefit intended to facilitate access to the labour market for people who have a limited capability for work and that is clear from a number of factors:
5.1. The name of the benefit “employment and support allowance”.
5.2. The conditions of entitlement to the benefit: that the vast majority of recipients must attend work focussed interviews (intended by sec 12(7) of the WRA 2007 to be about getting the person interviewed into work and keeping him at work).
5.3. The conditions of entitlement to the benefit that recipients will have to attend work focussed health related assessments (although now discontinued)- see sec 11(7) WRA 2007 which describes the purpose as looking at how capacity to work may be improved (eg facilitate access to the labour market).
6. Therefore, it is our submission that just as in the Vatsouras case a provision of German law which excluded from entitlement to a benefit intended to facilitate access to the labour market for those who had a right of residence as jobseekers was unlawful, so too is Reg 70(3)(a) and (d).
7. The Tribunal can set-aside those provisions because they are unlawful.
[ Edited: 3 Aug 2011 at 02:50 pm by Martin Williams ]I should be absolutely clear: don’t advise clients to claim ESA and use the above arguments UNLESS they really cannot sign on for JSA….
That’s brilliant, thank you very much.
This young woman came in with a friend who was taking her to the GP today because she was very depressed. They’ve just left me a message to say the GP has provided a med cert.
Surely since this May registered worker status is irrelevent?
Yes, but that only applies from May, so earlier period/s needs to be registered to complete the 5 years required.
I note that the parents appear to have come here 7-8 years ago? Was this before 1st May 2004 and if so on what basis. Was it under the Immigration act 1971? If so they may not be an “accession State worker requiring registration”. i refer to Reg 2(2) The Accession (Immigration and Worker Registration) Regulations 2004
It looks like she’s going to have to try to obtain the relevant info about her parents although I don’t know how she’ll do this due to the reasons for the estrangement.
I should be absolutely clear: don’t advise clients to claim ESA and use the above arguments UNLESS they really cannot sign on for JSA….
Hi Martin,
Hope I’m not being too nosey to ask if your submission argument worked? Is it for a the Upper or First-tier tribunal?
Sandy
Case is awaiting decision at First-tier- however there is another hurdle we have to get through in this case before the “irESA must be available to those whose only right to reside is jobseeker” point even arises so I doubt the case I am assisting with will answer the question.