EEA National doing temporary work based training – a worker?

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  • #35432
    Anonymous
    Guest

    I have a claim from a national of the Netherlands currently undertaking a three month work based training placement with a PR/Communications company in London.

    Prior to starting the training placement he entered the UK with the intention of seeking work.

    He currently receives a payment of £250 per month that is described by his ’employer’ as being for travel expenses.

    Do you consider that he might be a ‘worker’?

    He does not appear to fulfill any of the other criteria for being considered a ‘qualifying person in accordance with The Immigration (EEA) Regulations 2006 or 2006/38EC and neither is very helpful in providing a definition of what a ‘worker’ is.

    I am minded to go back to the HB 2006 Regs but that doesn’t provide a definition of ‘worker’ either but does mention ’employed earners’.

    #99336
    Kay_Tade
    Participant

    From what you have described I would say the claimant is a qualified person.. See Article 39:

    http://eur-lex.europa.eu/en/treaties/dat/12002E/pdf/12002E_EN.pdf

    #99337
    david kearney
    Participant

    What’s in article 39 that make you say that Chacha?

    I would have said that even if you could say that this person was a worker, they cannot be in genuine and effective work as they not being paid and are only having expenses re-imbursed.

    I wouldn’t have paid this chap, but you’ve got me worried now.

    #99338
    Kay_Tade
    Participant

    As long as the person can be classified as a worker/work seeker under EU or UK regs, for example an A8 citizen on maternity allowance is still classed as a worker for the period absent from work if they are still on the employer’s books even though they are actually not working and in receipt of benefits (MA)….

    For me It’s part and parcel of the conditions of his employment to get trained, so I Would pay him, until it is obvious he is just wasting his time and would not be gainfully employed afterwards by the employer or anyone else.

    #99339
    david kearney
    Participant

    you can retain worker status under certain circs (temp illness etc), but only if you’ve got a worker status to retain. I’m assuming that this person was not working for the employer before the training course started, so i would say he is not entitled, as he is not a worker for the purposes of si2006/1003, nor can he be treated as retaining any worker status as he has no existing status to retain.

    Not saying i’m necessarily right though!

    #99340
    Kay_Tade
    Participant

    Even if you decide that the claimant is not a worker he still has R2R for the first three months after arriving in the UK and that covers the period of the training.

    If you look at Article 39 in it’s entirety, IMHO, the claimant can be classed as a worker for the three-month period.

    #99341
    david kearney
    Participant

    But anyone who is solely dependent on the article 6 3 month thing for their right to reside is excluded from claiming benefit anyway.

    So i’d still say no, which probably isn’t helping the original poster much, unless someone better qualified than me has any thoughts, i’d let tribunal worry about it.

    #99342
    Kay_Tade
    Participant

    [quote:678db5250a=”david kearney”]But anyone who is solely dependent on the article 6 3 month thing for their right to reside is excluded from claiming benefit anyway[/quote:678db5250a]

    Every EU citizen has an initial right to reside for the 1st 3 months they arrive in the UK, afetr that they will have to be a qualified person for further R2R for benefit purposes….See reg13 of the EEA 2006 regs

    #99343
    david kearney
    Participant

    Reg 13 has the unreasonable burden caveat (reg 13(3)(b)), which i had always taken to mean you are allowed to reside for three months as long as you don’t need to claim benefits.

    I suppose it is worded in such a way that you could decide that in his individual circs, this person should not be treated as an unreasonable burden.

    Ca of worms though, all non working EU citizens entitled on arrival as long as you think they’re a good bet?

    Wheres Peter/Mary/Steve when you need them.

    #99344
    Anonymous
    Guest

    [quote:7787cb0645]Every EU citizen has an initial right to reside for the 1st 3 months they arrive in the UK, after that they will have to be a qualified person for further R2R for benefit purposes…. See reg13 of the EEA 2006 regs[/quote:7787cb0645]

    True, Reg 13 of the Immigration (EEA) Regs 2006 does give EEA nationals an initial right of residence for the first 3 months after they arrive.

    I understand this means they can get some other benefits (for example, JSA) during this period. However, doesn’t HB regulation 10(3A)(a) basically say that if a person has a right to reside [b:7787cb0645]only[/b:7787cb0645] because of reg 13 of the EEA regs, it means they are still treated as not habitually resident, and cannot get HB?

    #99345
    Kay_Tade
    Participant

    “(3A) 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) regulation 13 of the Immigration (European Economic Area) Regulations 2006; ”

    I think this confirms, not exclude, R2R on arrival for the first 3 months but as david said earlier this will apply to individual circumstances, For example someone on holiday, so can’t be a qualified person, does not have R2R.

    #53721
    Anonymous
    Guest

    IMO, paragraph 3A does say a person has a right to reside for the first 3 months, but it doesn’t make them habitually resident (so can’t get HB because of this alone). Paragraph 3A needs to be read together with paragraph 3, which says:

    “[i:ff06095dde]No person shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless he 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 [b:ff06095dde]other than a right to reside which falls within paragraph (3A)[/i:ff06095dde][/b:ff06095dde].”

    My interpretation of paragraph 3 says that a person cannot be habitually resident unless they have a right to reside, but the types of right to reside listed in paragraph 3A do not make a person habitually resident on their own.

    #99346
    Kay_Tade
    Participant

    I guess we respectfully disagree. I still think an EU citizen that just arrived in the UK has R2R for the 1st 3 months in some circumstances if they do not satisfy the rest of the conditions laid down in UK and EU regs but can show they are genuine work seekers and there are reasonable prospects of being employed.

    They do not need to provide proof of self sufficiency for the 1st 3 months and should be entitled to JSA so exempt from HRT.

    #99347
    Anonymous
    Guest

    I agree with Sam that the categories in para (3A) of Reg 10 are people who, if that’s all they’ve got, [b:3861a95915]cannot[/b:3861a95915] get HB. The categories are work-seekers and people who are relying on the general three-month rule. Neither of these rights of residence is a qualifying right to reside that will satisfy Reg 10(3).

    But there is a back-door way of qualifying for HB for work-seekers. In all the means-tested benefits bar one the same rules apply, buit JSA is the exception. This is necessary in order to comply with the Collins case: a work-seeker is entitled to claim benefits that are specifically targeted at work-seekers on the same basis as nationals of the host state. So a work-seeker can get JSA(ib) fairly quickly, and that in turn is a passport to HB/CTB because it puts you within Reg 10(3B).

    But if they are not on JSA(ib), work seekers cannot get HB because of Reg 10(3A). And people who are not even seeking work – people who are just around for three months – cannot even get JSA so they are definitely excluded from HB.

    #99348
    Anonymous
    Guest

    In real terms, I think that is what would be most likely to happen.

    Although an EEA national’s initial 3 month right to reside doesn’t get them HB on it’s own, if they are work seekers they will often get JSA(IB), and therefore get passported on to HB.

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