A8 National with residence permit

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  • #34960
    Anonymous
    Guest

    Please can someone advise me on this.

    I have an A8 national who has been self-employed since 10/4/04 and we were paying her. She works for various companies on contracts as self-employed.

    She was then without a contract from 6/8/07 to 19/9/07. She was wrongly (surprise!) advised by the Jobcentre to claim IS instead of JSA. Her IS was refused as she has no right to reside as she is not a qualified person and we have refused her claim on that basis.

    She has now appealed on the basis that she has been here for 8 years so has a permanent right to reside and she also has a Residence Permit issued by the Home Office on 7/10/05, which is valid for 5 years.

    Two questions:

    1) My understanding is that the Home Office only issue Residence Permits if a person is self-sufficient etc. Is a Residence Permit a ‘trump card’ which means she would qualify for HB/CTB despite being temporarily out of work?

    2) As Hungary only joined the EU in May 2004, if she says she has been here 8 years, presumably she would have required permission to enter/remain in the UK before then? Presumably she would have Home Office papers confirming this? Is this the only acceptable proof of more than 5 years residence? If she doesn’t have this paperwork does it mean she was an illegal entrant?

    Any help gratefully received!

    Thanks

    #98326
    jgwizdak
    Participant

    1. The “EU residence permit” has been replaced by the “EEA registration certificate”. (ERC)

    Various categories of people can apply for them and it basically means that an “EEA registration certificate” holder has been classed as having the same rights as an A16 (EEA) worker.

    2. A8 workers who have worked for 12 months with a valid “Workers Reistration certificate” (WRC) can apply for an ERC

    3. A8 self employeds are not required to register for a WRC and are entitled to apply for an ERC from the word go.

    4. For the period of unemployment your claimant would be treated the same way as an unemployed A16 national and would have to undergo the HRT tests.

    5. If your claimant is back to being self -employed or has changed to being employed she should be eligible for HB from that date onwards.

    6. For the unemployed period she should appeal the IS decision or make a backdated JSA(IB) claim as a work seeker.

    7. We’re only talking about 6 weeks here so she is not exactly a drain on public funds.

    That’s my twopennyworth

    #98327
    jgwizdak
    Participant

    I’ve just hi-jacked this post from Trevor Kenward from an earlier topic.

    [b:b58d6224d8]Here is the info contained in an email from Ursula at the DWP re self-sufficiency.

    Basically it states that only the Home Office decide on self-sufficency.

    ‘.Article 7 concerning a continuing right to reside after 3 months is the one which requires economically inactive people or students to be self-sufficient. Only the Home Office can make a decision on self-sufficiency and therefore you won’t need to consider if they are self-sufficient or have comprehensive medical insurance. As they have applied for an income-related benefit they are declaring that they are not self-sufficient and you can disallow – but only where the EEA national isn’t working or registered as a jobseeker. If an economically inactive EEA national applies for HB and produces an EEA registration certificate then you must award HB because the Home Office have determined that this person is self-sufficient. If they have been here less than 5 years then you should inform the Home Office that a claim has been made so that they can consider revoking the permit. ‘[/b:b58d6224d8]

    If your claimant was registered as a jobseeker then you can pay HB otherwise you can’t.

    Hope this helps

    #98328
    Anonymous
    Guest

    Thanks.

    However, am bit confused because Ursula says, “If an economically inactive EEA national applies for HB and produces an EEA registration certificate then you must award HB because the Home Office have determined that this person is self-sufficient. If they have been here less than 5 years then you should inform the Home Office that a claim has been made so that they can consider revoking the permit.”

    Does this not mean then that I must award HB as she’s got an EEA registration certificate?

    Also, what about the fact that she claims to have been here for 8 years? If she can prove it wouldn’t I have to pay her? And what proof is acceptable?

    Thanks,

    Cathy

    #98329
    Anonymous
    Guest

    If she has been in the UK since before 2004 she would have needed some kind of permission like a work permit. She wont have a permanent right of residence until she has been in the UK exercising a treaty right for 5 years, so any self-employment before 2004 wont count towards that, that is unless she was exercising treaty rights as a family member of another EEA national before 2004.

    Registration certificates are issued as confirmation of an EEA national’s status but do not themselves give that person the status. This is from the IND website:

    “A registration certificate is a document issued to EEA nationals that merely confirms the holder’s rights of residence under European law at the date of issue. EEA nationals are not required to have such a certificate in order to reside in the UK or to exercise any of their other rights under European law, such as the right to work or be self-employed in the UK.”

    My interpretation of this would be that where someone has a registration certificate the Home Office has confirmed their right to reside. But as this is mere confirmation, the fact someone does not have a registration certificate does not itself mean they do not have the right to reside, and this would need to be decided by the LA.

    I would also question whether she had actually stopped being self-employed for those few weeks, even though she had no current contracts.
    Or can someone be involuntarily un-self-employed?

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