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What Happened to the Genuine Prospect of Work test?

The Regulations state that an EEA national, who has worked in the UK for over a year can retain their worker status beyond 6 months' unemployment if they have a "genuine chance of being engaged".

However CPAG successfully appealed on behalf of a Polish national that this was an unlawful requirement. 

In CH/2389/2016 (KH –v- Bury MBC and SSWP [2020] UKUT 0050 (AAC)) the Upper Tribunal agreed that there was no lawful basis for requiring the appellant to show she had a genuine chance of being engaged.  All that is required in the EU Directive is that the worker is "in duly recorded involuntary employment and registered as a jobseeker at the relevant employment office”. The UK had undermined this by adding a genuine chance of being engaged test.  

The Tribunal Judge said that retained worker status "is retained indefinitely unless and until the evidence shows the person has withdrawn from the labour market entirely. It is through registration with the employment office that the connection with the labour market is shown, through being available and actively seeking work, but it is not a necessary part of showing that connection that a person must have a genuine chance of being employed."

The Regulations have not yet been changed but any claimant refused a right to reside (and thereby a right to benefits) on this basis should appeal quoting this caselaw.





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