In Brief
A recently published Supreme Court decision (decision date 30/01/15) found that the last 2 years of the “Worker Registration Scheme” for A8 nationals was unlawful.
This means that some A8 nationals who weren’t in work that was registered in that period DID have 'worker status' and may be able to rely on that period for gaining permanent residence status.
So there will be some A8 nationals who were wrongly refused benefits in the past who can now ask for that claim to be reviewed. However the Judgement states that retrospective revisions will only be for those cases that were already under appeal (see Eliise example below), or where the decision was stayed, from 30.01.15. But going forward any new decisions on entitlement will not be refused on the grounds of not having worker status due to the work not having been registered in those two years (see Franco example below).
Who is an A8 National?
A national of one of the 8 states that acceded to the EU in 2004.
The states are: Czech republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovenia, Slovakia.
When these countries originally joined the EU the UK government was concerned that there would be an influx of migrants, so the government was allowed to impose some restrictions.
It was agreed that from 01.05.2004 to 30.04.2009 people from such countries needed to have registered for work with the Home Office under the Worker Registration Scheme for the work to be “lawful” (some exemptions) and therefore for them to have 'worker status' when looking at the benefit regulations.
And in early 2009 the UK government decided to extend this Scheme by two years ie to 30.04.2011.
In the recent ruling the Judge concluded that this extention was unlawful and therefore it does not matter whether the work an A8 national did during this time ie 01.05.2009 - 30.04.2011 was registered under this Scheme or not.
Who can this help?
Permanent Residence Status refused?
Suppose an A8 national had been told they couldn’t claim benefits because they did’t have permanent residence status ie a continuous period of 5 years living in the UK as a "qualifying person" (and they could’t rely on any other “right to reside”).
It might be that they just missed out because any work they did between 01.05.2009 to 30.04.2011 could not previously have been included because the work was not registered - but had it been they would have had 5 years living in the UK as a "qualifying person".
Then they can now ask the relevant benefit authority to review that previous decision (but see note on who can do this above) and include any unregistered work they did between 01.05.2009 to 30.04.2011 – including having a retained worker status for short spells of unemployment - meaning they then have a continuous period of five years as a “qualifying person” so any decision that they did not have permanent residence status can now be overturned.
Doesn’t “settled status” now mean that someone who’s been here five years doesn’t need to show a “right to reside” to get UC and other benefits?
Yes, but this only applies from the date settled status is granted. They may be wanting to get a decision overturned for a period prior to their settled status being confirmed.
An A8 national who has been refused benefits in the past - ie at any time since 01.05.2009 - could now ask for that decision to be reviewed if the reason for refusal was solely due to the work they had been doing between 01.05.2009 and 30.04.2011 not being registered.
Also to be granted “settled status” the EEA national must not have been out of the country for more than 6 months in any 12 month period. So they may find their application for settled status is refused. However, if they can show that they had gained a permanent residence status prior to going abroad then they can now claim benefits as long as their absence from the UK was no longer than 2 years (see Franco example below).
EXAMPLE
Eliise came to the UK from Estonia in December 2008 but although she worked full time at a fast food restaurant she did not register the work under the Worker Registration Scheme. She continued to work until April 2014 when she moved in with her partner (British) who supported her financially. They separated in April 2019, and she tried to claim Universal Credit but was turned down as her only status was “jobseeker”.
She provided evidence of having had “qualifying status” for 5 years but was told that she had not acquired permanent residence status because her work from December 2008 to April 2011 did not count as she had not registered under the scheme.
She has been battling with the DWP ever since, getting into serious rent arrears and relying on food banks. In July 2019 she applied for and was granted settled status which means she is now eligible for UC and has made a new claim, but she would like the DWP to revise their decision that she wasn’t entitled to UC from April 2019.
As a result of the Supreme Court decision, and because she had already challaneged the deicion, DWP should accept that she had worker status from April 2009 to 2011, meaning she acquired permanent residence status, and grant UC from the date of her claim.
EXAMPLE
Franco moved to the UK to work in October 2010. He worked full time, but without having registered for work, until February 2016 when he became depressed and moved back to Italy to live with his Mum. Sadly Mum died in January 2018 so he returned to the UK with the intention of finding work but, still suffering mental ill health, he had no luck, so claimed PIP and lived off this and his small inheritance until in December 2018 he tried claiming UC. He was found to not have a right to reside, despite providing proof of his work between October 2010 and February 2016. This was because the period from October 2010 to April 2011 did not count as he wasn’t registered under the Worker Registration Scheme, so he hadn’t accumulated 5 years with “qualifying status”. He was supported in requesting a revision but the decision was put on hold and nothing happened since.
He applied for settled status but as he had been out of the UK for more than 6 months was only granted pre-settled status which does not entitle him to UC.
He has been living off food banks and help from his friends but has become more unwell and is at risk of eviction for rent arrears.
Due to the Supreme Court decision he can make a new claim for UC and the DWP should now find that he does have permanent residence status, as the period from October 2010 to April 2011 can now count as work for the purpose of 5 years with “qualifying status”.
Who else might this help?
Family member of a qualifying A8 national
If someone - EEA national or not - has been the family member of an EEA national who has gained the permanent right to reside, and they were their famiy member throughout that 5 year period, then they themselves acquire permanent residence status. Someone might have been refused permanent residence status on the basis that their family member was an A8 national and was not a “worker” or did not “retain worker status” between 01.05 2009 to 30.04.2011 and that therefore they did not have 5 years as a “qualifying person”.