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ESA claim - permitted work - argue she acquired worker status through permitted work?

JPCHC
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Cardinal Hume Centre - Welfare Rights

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Total Posts: 186

Joined: 24 November 2014

Bit of a long shot….

EEA national clt has been here since 1982 but never acquired permanent residence.  For most of the time, she’s been living with a British spouse (who has never resided in another ESA state exercising his treaty rights so can’t argue that either) and she has a sporadic work history (last worked 2000/1) - certainly nothing approaching five years and then years of inactivity before the citizenship directive.

Since she last worked, she’d been included as part of his couple claim.  Following serious DV, clt is now in a refuge and is on a methadone programme.  She tried to claim IR-ESA but disallowed on residency.  She started doing permitted work in a restaurant before the claim was disallowed and she has now been doing it for 3 months.

As there’s no basis to challenge the original HRT disallowance, I am going to suggest a new ESA claim backdated to 3 months with the argument she has acquired worker status through the permitted work (not close to 16 hours p/w unfortunately).

It’s a bit of a long shot but just wondering whether anyone’s had any success arguing the same before? I expect a long challenge….!

Thanks in advance



Clt has been here since 1982

nevip
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Welfare rights adviser - Sefton Council, Liverpool

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The phrase permitted work only has any specific meaning within the ESA regime.  The question for right to reside purposes is whether she counts as a worker.  This is a question of fact.  Is the work genuine and effective and more than just marginal and ancillary?  The 16 hours threshold has no legal basis as to whether that condition is satisfied or not.

JPCHC
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Cardinal Hume Centre - Welfare Rights

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Total Posts: 186

Joined: 24 November 2014

I understand completely.  I was just using that as an illustration of the type of work she is doing i.e. erratic hours, low paid,  sometimes no work at all.  I understand the usual tests apply so it was just more whether anyone had any experience of getting an IR-ESA claim through on the basis of work they have just started (would meet permitted work criteria).  The ‘work’ started a week before the date of IR-ESA claim… Thanks