RTR (again)

Would appreciate some help on this one as can’t see wood for trees (nothing new there). Client is A8 (Hugarian) who came to UK in 8/03. Initially had a ‘no recourse/can’t work’ stamp on passport (but later seems to have obtained permission to work). Became EEA National from 1/5/04. Client worked from 2003- early 2009 (various jobs) but is now unemployed. School age child. Claimed IS- refused (no RTR). We appealed- decision not revised and now awaiting bundle. Wick has stated that because client is A8 national, she has to have completed 12 months registered work for Teixeira to be relevant (and that she hasn’t been exercising treaty rights for 5 years as there is no proof that any of her jobs were registered under WRS. Client did actually register with WRS for the first job she had (which we think covered 12 months +) but no longer has the cert. She has a permanent right of residence card (issued in 2005- expires this year) which states she has a right to work and she tells me she was told by the HO that she didn’t need to register any further jobs due to this. In addition, as she originally entered UK prior to Hungary joining EU, did she need to register any of her jobs? I really don’t know where to go with this. Any suggestions/opinions gratefully received.

If she applied for the resedency card in her own right (as opposed to being part of her partners application) then one of the requirement of getting one is proving that she had the required 12 months registered work.

You can also ask the WRS for a letter detailing her registration and naming the company she worked for with the date of issue. then ask the company for dates of employment or copy’s of P60 or P45.

Excellent! Thanks very much for that- didn’t know the residency card was conditional on the 12 months registered work. Thanks.

I don’t understand the DWP’s position on Teixera at all.  Mrs Teixera was granted a right to reside under Article 12 of EC Regulation 1612/68 which is in the following terms:

“The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory”.

The ECJ ruled that the right under Article 12 was freestanding and did not depend on a contingent right to reside under EC Directive 2004/38 (and by implication under The Immigration Regulations 2006).  The primary carer did not have to still be working at the date of the child’s entry into education as long as he was a former migrant worker, nor did the primary carer have had to have worked at some date after the child’s entry in education.  The RTR of the primary carer under Article 12 ended when the child reached majority unless the child needed the presence and care of the primary carer to complete his education.

Thus, in my view, if the primary carer can gain a RTR under Article 12 then arguments under the worker registration scheme are irrelevant.  The only sticking point I can see is that your client might not be classed as a migrant worker as she was not an EEA national when she moved here.  Although Article 12 itself does not use the term “migrant worker” the regulation is concerned with the free movement of EEA workers and the Teixera Judgement uses the term “migrant worker” throughout.  Teixera is thus distinguished on this point

I’m working on a similar case at the moment and it seems to me you have a few arguments you can use for your client.

1. If she was had leave to remain in the UK prior to 30 april 2004 that was not subject to any restriction on her employment, the she never needed to register her employment. Reg 2(2) of the Accession Regs 2004.

2. If she was legally working in the UK prior to 30 April 2004 (in accordance with the conditions of her work permit) and continued to work after the accession date for the same employer, then once she had completed a year she would no longer be required to register. From my reading of the Regs, in this circumstance she didn’t have to register her employment once the 30 April 2004 came around as long as she was still working for the same employer in accordance with her work permit. Regs 2(4), 2(7) and 7(2)(a).

3. An accession state national who is required to register their work cannot get a registration certficate under the EEA Regs. (Reg 5(5) of the Accession Regs as amended by Schedule 5 of the EEA Regs). You need to check what card your client has but if it’s a registration certificate, then that should be proof that your client is not required to register their employment under the WRS. This would get pass the practical problem of proving her previous employment as the registration cert in itself should be sufficient proof that she is not required to register employment any more without having to try and obtain evidence that she has completed 12 months of work for an authorised employer.

4. There is a potential argument that possession of a valid registration cert or residence card from the HO bestows a right of residence in itself, but you’re unlikely to get anywhere with this until the ECJ gives a decision in Dias.

5. If you can establish that the client either never needed to register their work under 1 above or has completed 12 months of work for an authorised employer, then she would now be a former worker and if the child is in school, Teixeira would apply and the DWP should have no argument about this. There are cases pending on whether Teixeira can apply to an A8 national who has not completed 12 months for an authorised employer so even if all else fails and it is not accepted that your client was no longer required to register under the WRS, there is still the possibility of Teixeira applying.

6. There’s a potential permanent residence argument on the basis that she’s had 5 years of residence but it may need you to be able to establish that she was residing in accordance with the EEA Regs continuously for the 5 year period or wait to see how the ECJ define “resided legally” for the purposes of Article 16 of the Directive.

I’ve went on a bit in this post! But as I said, I’m working on a similar appeal myself at the moment so it’s actually been quite helpful for me to set out the relevant arguments!

Thanks again- some good stuff there. Am waiting for more info from client and will definitely revisit this later. Every time I think I’ve finally got my head around RTR something comes along to throw me off again.