Italian EEA in the UK claiming JSA income based

Hi, I have a case where an Italian national is claiming JSA income based. She arrived recently and never worked. I know that she must be exercising treaty rights and that jobseeking qualifies as worker.

But! She never worked and she got refused on the basis of not having a habitual residence in the UK.

I know of the case Antonissen, where it was regarded that there is no set time the applicant must find work within, but what else can I oppose to the DWP refusal??? She has genuine chance of finding work and that must be enough for her to be receiving the JSA !

The host member state is not required to grant access to the the social assistance system during the initial period. Besides, what previous income could she base her claim on? If she has a claim then that would be probably in Italy.

No, I think after the three months (or even upon entry) the EEA citizen who can prove that he is a job-seeker (thus a qualified person) is entitled to it, unless he has no genuine chance of finding employment!

Case of Antonissen (queens bench division) http://www.solicitorsforimmigration.com ... y-the-eec/

so I thought that it makes sense that she can claim JSA income based until DWP prove she is not a qualified person through not having a genuine chance of finding employment? any ideas?

86ti wrote:The host member state is not required to grant access to the the social assistance system during the initial period. Besides, what previous income could she base her claim on? If she has a claim then that would be probably in Italy.

Directive 2004/38/EC, preamble (21) and article 24(2). The Antonissen case does not answer this question.

thanks for the reference. Article 14(1) is confusing
"1. Union citizens and their family members shall have the right of residence provided for in
Article 6 (initial right of residence), as long as they do not become an unreasonable burden on the social assistance system of
the host Member State."

Why would it mention it in such terms, and not absolute ban on social assistance. So a person COULD be a reasonable burden during the first three months (Art.6) of residence.

I see that both the preamble 21 and Art.24(2) make a lot of sense and I agree with it, noone should be benefit shopping, it's just I remembered that Antonissen case has been mentioned a couple of times and there is a strong argument that job-seekers should be supported as much as the ones who HAD worked and then seek other employment! And, if reasonable, be supported during the seeking phase.

The person who had never worked and is seeking employment may have more chances of finding employment than someone who HAD worked and lost that job!

Please explain whether the ban on that Italian claiming is absolute and if DWP could claim no Habitual Residence Test was satisfied, doesn't make sense, they should have referred to the Directive or UK legislation.

Thanks

Could the "social assistance" referred to in the Directive NOT refer to the JSA income based but other benefits (such as Housing, Council tax, Income Support etc)? This would make sense if a Job seeker was treated the same way as the UK national with respect to being supported.

It is not clear what "unreasonable burden" actually means and I guess it hasn't even been tested in court yet (to the extent that we could draw general conclusions). I would think, however, that the bar is higher for new arrivals and also self-sufficient persons than it is for workers and self-employed persons. The correspondence table lists Article 24(2) to be fully implemented by the UK and refers to the respective regulations including the one for Jobseeker's Allowance. Tthat's probably the one DWP is using and is deriving its "habitual residence" from (for someone who has come only recently to the UK and is not economically active this may be a problem to prove). The ECIS in chapter 12 list the income-based benefits which may not be detrimental to residence rights to EEA nationals including those who seek work. But it is not clear if there would be made any difference for a new arrival. Practical question: can one register with the Jobcentre without claiming JSA? The rules may not be absolute but the proof of burden is eventually on the EEA national.

I have looked only briefly through your link to the Antonissen case but it looks like at least 14(4b) implements the outcome.

Thanks, so you also see a bit of contradiction between Art.14 and 24(2), preamble 21.

What is the relation between Old EC Regulation 1612/68 and Directive 2004/38. I know the Directive repealed others, but only amended this Reg. If so, Antonissen could be good ground to rely on under that old Regulation 1612/68

86ti wrote:It is not clear what "unreasonable burden" actually means and I guess it hasn't even been tested in court yet (to the extent that we could draw general conclusions). I would think, however, that the bar is higher for new arrivals and also self-sufficient persons than it is for workers and self-employed persons. The correspondence table lists Article 24(2) to be fully implemented by the UK and refers to the respective regulations including the one for Jobseeker's Allowance. Tthat's probably the one DWP is using and is deriving its "habitual residence" from (for someone who has come only recently to the UK and is not economically active this may be a problem to prove). The ECIS in chapter 12 list the income-based benefits which may not be detrimental to residence rights to EEA nationals including those who seek work. But it is not clear if there would be made any difference for a new arrival. Practical question: can one register with the Jobcentre without claiming JSA? The rules may not be absolute but the proof of burden is eventually on the EEA national.

I have looked only briefly through your link to the Antonissen case but it looks like at least 14(4b) implements the outcome.

It has been a while but maybe Vatsouras (Case C‑22/08) may give an answer?