RTR anyone?

Can anyone think of anything I’ve missed?

Pre- 30/4/11 JSA appeal. Client is an A8 who had worked for 12+ months but failed to register the jobs. His partner is also an 8A. She had completed 12+ months registered work but ceased work some time ago to care for their 3 year old child and was not economically active or temporarily incapacitated. Thought of arguing she was self supporting (they were living on client’s earnings) but no sickness insurance.

Client was self employed for a while before becoming unemployed so that’s a potential route but chancy because it’s pretty clear he wound up his self employed business at point of becoming unemployed.

Anyone have any ideas? (nb- client has since- post April- reclaimed JSA though no decision yet made).

This advice depends on your client being married to his partner….

1. Note that in terms of counting as someone who is not an “A8 worker required to register” (and hence have a right to reside as a jobseeker in the pre 01/05/2011 period then client needs to have been “legally working in the UK without interruption for a period of 12 months”.

2. He will count as having done that if he was “legally working” at the beginning and end of that period of 12 months and days when not legally working in that period do not total more than 30 days.

3. It is important to realise when calculating whether client was “legally working” on a particular day that there are other ways to count as “legally working” than simply being in possession of a registration certificate issued under the WRS in respect of a particular employer.

4. In particular then Reg 2(7)(c) and (6)(b) of the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004 No. 1219) provide that work done when a person is the family member of an EEA national and that EEA national has a right of residence other than that which an A8/A2 national has in their first three months.

5. What that means is that (assuming your client is married to his partner and therefore counts as her family member), any time when he was working in which she was working and she either had the registration certificate or had herself completed the 12 months counts as legal work on his part and he may be able to show he satisfies the 12 month rule that way.

Just out of curiosity when did they come to the UK?

Hi Both,

Cient and his partner are not married. His partner worked under WRS continuously from 6/11/07-30/11/08 (same employer) but hasn’t worked since. Client has been in the UK since 2004 so there is a possible permanent right of residence argument, but as there are gaps and as none of the jobs were registered…

If they have been together since 2004 they do not have to be married as they are in a “long standing relationship” which counts as a family member.

I’m in process of checking when client & partner got together but I don’t think they have been together since 2004 (I think they started living together in 2008). I have to say it ain’t looking good is it?

CE/2010/2010 was bought to question a decision in CIS/0612/2008 regarding the requirement for a family permit the arguement being basically that family permit is a admistrative formality only and the requirement in Reg 7 was not lawful in requiring such a document.

The Directive states at recital 6 ‘In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.’  It does not state anything about any documents.

Judge Jacobs concluded that the person only has a right to reside if that is conferred by the immigration authorities. That right is only conferred after a consideration of the person’s circumstances. If it is conferred, the appropriate document will be issued. In other words, the right to reside and the document go together in practice.  it was not the Tribunals place to decide such matters and the right to reside must be conferred and that can only be done by the appropriate authorities. 

Hence in order to do so the extended family member needs to apply to the Home Office for the document to show that they have right of entry/residence.  It does not appear to possible to infer this by the fact thet they have already been allowed into the UK and have not been asked to leave.  Is this not an adminstrative formaitity?  Does it infringe on freedom movement?