EEA3,A8 rejected - EEA Regulations 2006, Regulation 5(3)(i)

[waterlillies]

EEA3 application (former A8 national, worker employed) rejected due to "You have not provided any evidence to show that you were residing in the United Kingdom as an EEA national who was exercising their Treaty rights for two years prior to ceasing your employment with "X" and therefore your application fails to meet Regulation 5(3)"

Regulation 5(3)(i) says "he resided in the United Kingdom continuously for more than two years prior to the termination"

“Worker or self-employed person who has ceased activityâ€

[86ti]

The requirements are residence for a continuous period of 2 years and having been a worker or self-employed. The EEA regulations and also the Directive can indeed be read, I think, as if having been either a worker or self-employed person must not have been fulfilled for that whole period. Question is however, how have you been exercising your treaty rights in the past two years before becoming permanently incapacitated?

[waterlillies]

The person had worked since 2005 or earlier but registered with WRS only in 2006 and ceased employment after 12 months cont.working with WRS in 2007 and then became and still is permanently incapacited and in receipt of DLA and Incapacity benefits.

The requirement to work 12 cont.months with WRS is met but to maintain right to reside when incapacited 2 cont.years of residence before incapacity are required. The question still remains if 2 cont.years of residence must include working with WRS? Or working without WRS (first year of 2) would do for former A8 national as well?

On the other hand if the requirement to work 12 cont.months with WRS since 2006 to 2007 is fulfilled and then the applicant is incapacited since 2007 by today - shall the regulation 5(3)(i) still be discussed at all or the applicant is treated as having exercised his Treaty rights due to completing 12 cont. months work with WRS and so qualifies for EEA3 without addressing to regulation 5(3)(i)?

[86ti]

The person had worked since 2005 or earlier but registered with WRS only in 2006

I think that's exactly where the UKBA has a problem. A8 national workers were required to register with WRS. In other words prior to 2006 that worker was not lawfully resident in the UK and in fact was working illegally.

[waterlillies]

If such how then Regulation 5(2) a,b,c in the case of self-employment shall be understood whereas EEA national has to work at least 12 months and be a resident in the UK for more than 3 cont.years prior to termination at the state pension age? If has not been working, exempt from WRS, so never a lawfully resident prior to the start of self-employment?