Help Person from abroad appeal

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  • #34974
    Jacqui Fowler
    Participant

    I have received an appeal from a person from abroad. The lady is an A8 national (Czech) She has been turned down for HB/CTB because although she has worked continuusly for 12 months, she has not worked legally ( with a workers registration certificate for a continuous period of 12 months)

    CAb are saying that she qualifies for a worker and is therefore entitled to claim HB/ctb for the period she was uemployed as she retains her worker status by virtue of Article 7 of Directive 2004/38 which confirms worker status. They also refer to EC Regulation 1612/68 and they say in the Accession Treaty 2003 made upon the accession of Lithuania the EU the goverment has not derogated from Article 7 of the EC Regulation 1612./68 . She has protection under Article 7 of Reg 1612/68 and Article 7 of Directive 2004/38 and she has the right to reside and retain her worker status is she is unable to work through involuntary unemployment.

    She said although her worker registration docs were applied for by the company she worked for and they were late applying for them for her. This is why she cannot prove she has legally worked for 12 months continous employment. Can anyone help with this please

    #98353
    stevedaymond
    Participant

    If she was turned down due to not completing 12 months continuous employment I think you may need to review your decision. It may confirm that you were correct to refuse the application but not completing 12 months employment is not sufficient by itself.

    You are correct in stating that the 12 months was not completed as the workers registration docs were applied for late. It does not matter that the CAB are blaming the previous employer and its not our job to get involved in any dispute over this. Basically if the evidence you have from the Home Office confirms that 12 months registered employment has not been completed then that is what you need to follow.

    As 12 months has not been completed they could not retain worker status using 7(3)(b) of 2004/38/EC but [u:3993bb96d3]may[/u:3993bb96d3] satisfy 7(3)(c) of the directive. So the fact that they were not registered from the start is irrelevant but that they were registered when leaving the employment is the key point.

    You will need to check the reasons for leaving and that they have registered as a jobseeker.

    Hope this helps

    #98354
    Jacqui Fowler
    Participant

    Thanks for the reply,

    The person in question worked from [b:f0868fd4a7]9 May 2005 to 12 July 2006 [/b:f0868fd4a7]( 14 Months and 14 days) but she did not obtain a workers registration certificate for this work until 23 August 2006 so she worked legally for 10 Months and 19 days in this employment. She then left and went back to Czech republic to get full time work (dont know how long she worked there but I know she claimed JSA while there. She stayed in Czech republic from [b:f0868fd4a7]17/7/2006 to 30/5/2007[/b:f0868fd4a7] She came back and claimed JSA and HB and was turned down for both This is why she is appealing

    #98355
    stevedaymond
    Participant

    Hi Jacqui

    With the extra details provided it is clear the person does not have worker status. When an A8 completes 12 months continuous employment without a break greater than 30 days they no longer need to register their employment with the Home Office and gain the same conditions as an EEA18 worker [u:6bbccc8200]while they are in employment[/u:6bbccc8200] once they leave employment unless they retain worker status it is irrelevant until they begin working again.

    As per the Home Office your claimant has not completed 12 months so will need to register her future employment with them if she returns to work.

    In order to retain worker status she must be either unable to work due to illness or injury, or be unvoluntarily employed and registered with the job centre, but the key word is retain.

    Your claimant left employment in July 2006 and returned to the Czech Republic from July 2006 to May 2007 where she worked and claimed benefits. But as she was not actively seeking work in the UK and registering with the job centre she lost her worker status (it is also unclear why she left her job but in this case irrelevant). As she lost her worker status she can not get it back without working again. Article 7(3) of 2004/38/EC is regarding retaining worker status not regaining it. She lost her worker status when she left employment and returned home to work and claim benefits as she was not registering as a job seeker with the authorities in this country. As a seperate issue Article 16 of 2004/38/EC regards residency in the UK and as she had not completed 5 years before leaving for over 6 months this is a completely different period of residence in the UK to which she is trying to keep her worker status.

    As she does not have worker status and applied for JSA she is a jobseeker and not a worker. When she returned to the UK and applied for JSA she failed the HRT test with them (probably as she worked here for a period then returned home and then back again so hard to say she is habitually resident in the UK) and had her benefit refused. As a Jobseeker the only qualifying right to reside for our purposes is JSA(IB) (HB Reg 10(3b)(k)) and as she does not have this or retain worker status she has a non-qualifying right to reside, fails the HRT and is ineligible for HB or CTB.

    Hope this helps

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