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Application for Settlement

Application for Settlement
Last week the European Court of Justice delivered a verdict upholding Germany’s decision to restrict welfare benefits akin to jobseekers allowance to a Romanian national living in Germany since 2010.

The verdict was welcomed by David Cameron as “simple common sense”, as the debate surrounding EU migration becomes increasingly partisan.

Whilst topical, does this ruling represent a significant change in the law and how might it affect EEA nationals in the UK?

The circumstances of the Romanian national in question were uncomplicated; she and her son had been living with her sister since 2010. She was not trained in any profession and had never worked in Germany or Romania.

The Court held that nationals of other Member States can claim equal treatment with nationals of the host Member State only if their residence complies with the conditions of the Directive on free movement of EU citizens.

Under existing EEA regulations, a national of another member state must be deemed a “qualified person” in order to reside in the host state for longer than 3 months. They will only be classified as a qualified person if they are working, a job seeker, self-employed, self-sufficient or a student.

Having established that the Romanian national was not “self-sufficient” (and could not claim to be a student or self–employed), she would have had to successfully demonstrate that she was a job-seeker to avoid the tag of an “inactive Union citizen”.

In the UK, the issue was canvassed by the Upper Tribunal in the case of Begum (EEA – Worker – jobseeker) Pakistan [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2011] UKUT 00275 (IAC) which held:  

(2)   When considering whether an EEA national is a jobseeker for the purposes of EU law, regard must be had to whether the person entered the United Kingdom to seek employment and, if so, whether that person can provide evidence that they have a genuine chance of being engaged.  If a person does not or cannot provide relevant evidence, then an appeal is bound to fail on this grounds.

The recent judgement from the ECJ is consistent with the established UK case law, and does not significantly alter the landscape. It does however serve as a reminder that EEA rights of residence are qualified and should not be taken for granted. There was simply no evidence advanced before the ECJ that the Romanian national could even be considered a job seeker.

As permanent residence will only be granted to those who maintain their status as a qualified person, EEA migrants who wish to settle in the UK permanently should take care to keep all evidence relating of employment or other work both outside and inside the UK, in order to demonstrate their intention to seek employment and likelihood of becoming engaged.

We recommend that any EEA migrants in the UK looking for work keep records of any jobs they have applied for, so that periods of inactivity can still be counted towards continued residence as a qualified person. Any applications for permanent residence could be refused if the applicant stopped working for a period of time and failed to demonstrate that they had a realistic chance of obtaining work.

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