“You can’t have a derivative right when you count as a jobseeker”
The DWP often refuse UC on the grounds that a claimant cannot have a derivative right to reside if they also count as a ‘jobseeker
’. Regulation 16(1) of The Immigration (EEA) Regulations 2016 says:
"16.—(1) A person has a derivative right to reside during any period in which the person—
(a)is not an exempt person; "
and the definition of exempt person includes:
" a person—
(i)who has a right to reside under another provision of these Regulations; " (Reg 7 of the same regulations).
Why is this a problem?
This is a difficult situation for claimants because the Regulations state that EEA Nationals who are ‘jobseekers’ can’t claim UC.....
(Reg 9 (3)(aa) of the Universal Credit Regulations 2013).
NOTE: 'Jobseeker' status is not to be confused with those EEA nationals who may be unemployed but who have 'retained worker status
' rather than just 'jobseeker' status – these EEA Nationals can claim UC.
BUT not everyone who the DWP says is a ‘jobseeker’, actually is....
An EEA National won’t count as a ‘jobseeker’ unless they fit the precise definition of ‘jobseeker’.
To be a ‘jobseeker’ under the EEA Regulations, a person has to:
- Have entered UK in order to find work, and
- Be actually looking for /available for work, and
- Have a “genuine chance of being engaged”, and
- Not exhausted the 91 days of having a Right to Reside as a ‘jobseeker’.
So where a claimant with a ‘derivative’ right to reside has been refused UC because the DWP say that their ‘status’ as ‘jobseeker’ prevents it, then they will need to argue that they do not fit the definition of being a ‘jobseeker’ because either:
1. They did not enter the UK to find work – they came for a different reason, or
2. They are not currently looking for work*#, or
3. They do not have a genuine chance of finding work – explaining why, or
4. They can show evidence that they have spent 91 days looking for work since coming to the UK.
* If they are expected to look for work in order to receive UC - ie their claimant commitment includes work search - then making this statement will mean they will face a sanction when they do go onto UC- a Catch 22.
#What if they aren't looking for work - but the DWP say they could?
We have heard that the DWP have sometimes argued that a person could be a jobseeker even though they are not looking for work, because they could look for work. But it is what the claimant is actually doing, not what they could do, that counts.
What if the claimant actually is a jobseeker?
There is an argument that some commentators have suggested - but we do not know if this will work - but worth trying.
The argument is that the intention of the regulations is that a derivative right to reside is that it is a 'last resort' when they have no other 'right to reside' that enables them to claim benefits. And that the intention can never have been to deprive the claimant and her/his family.
It is national
law (The Immigration (EEA) Regulations 2016) which states that an “exempt person” cannot have a derivative right - but the principles protecting the rights of children of EEA national workers are written in EU law
- in Directive 2004/38/EC and in the general law on the Rights of Free Movement - Reg 492/2011
*- and this over-rides national legislation.
*Article 10 of Reg 492/2011 says the child is to be educated under the same conditions as the child of a host state national and that the host state should ensure this happens under the best possible conditions.
Meanwhile, while challenging the DWP on these points...
Don't forget that of the claimant has been in the UK for a continuous period of 5 years (regardless of what doing - unless a criminal) they can apply for settled status which will give them a right to claim benefits including UC, once granted. Check this page.