KH is a Polish citizen. She had an award of housing benefit. She had worked in the UK for in excess of a year and was then involuntarily unemployed and was duly recorded as having registered as a jobseeker with the relevant employment office (ie she had claimed JSA). The issue in her case was whether, after having been unemployed for six months she needed to show evidence (compelling or otherwise) that she had a genuine chance of being engaged in employment in order to continue to retain her status as a worker, and therefore a right to reside sufficient to continue to receive housing benefit (as what is now reg. 6(2)(b)(ii) of the Immigration (European Economic Area) Regulations 2016 would seem to require).
The Upper Tribunal accepted submissions made by CPAG, on behalf of KH, that there was no lawful basis for requiring KH to demonstrate a genuine chance of being engaged. The test in article 7(3)(b) of Directive 2004/38 which allowed a person who had worked for over a year to retain worker status when unemployed was simply that the person was duly recorded as involuntarily unemployed and had registered as a jobseeker with the relevant employment office: that test had no possibility of allowing checks also to be made on the chances the person would obtain employment and the provisions in the relevant Immigration (Euroepean Economic Area) Regulations 2006 (now found in reg. 6(2)(b)(ii) of the 2016 set) were unlawful and not to be applied.
Judgment was given on 14/02/2020 and is now available.