Writing all wrongs

Except in a summary court- martial case, such a submission shall be made within 10 days after the accused has been given an authenticated record of trial and, if applicable, the recommendation of the staff judge advocate or legal officer under subsection d. In a summary court-martial case, such submission shall be made within seven days after the sentence is announced. Such a waiver must be made in writing and may not be revoked.

Writing all wrongs

If the first stage is not passed, this does not necessarily mean that the test is failed. It is only after this second stage that a decision should be made whether someone is or was an EEA worker or self-employed person during the period in question.

The amendment specifically excludes those with a right to reside only as a jobseeker under the EEA Regulations plus their family members.

Writing All Wrongs, Ellery Adams – garabrandtreviews

Note that the days of jobseeking are cumulative, with periods separated by absences from the UK of less than 12 writing all wrongs being linked, but DWP guidance indicates that it considers the link to be broken by a period of genuine and effective work. What constitutes a period of absence?

Given that a person is not usually considered present if outside the UK throughout the day, a whole day should fit the definition. However, it is arguable that a day without a right to reside should be treated as an absence. These differ from the exemptions to the habitual residence test in that they include Crown servants, those temporarily absent for less than 52 weeks and non-EEA nationals who would qualify as worker or self-employed persons if they were EEA nationals.

The last of these arguably covers returning UK nationals given that they are not usually treated as EEA nationals if they have not been exercising EU Treaty rights. CPAG has heard from several advisers of cases of clients attending courses or training in another EEA state for several months and on return to the UK being refused income-based JSA; in such cases if should be argued that the claimant never ceased to be living in the UK.

Where the minimum income threshold may be an issue, advisers should be prepared to challenge decisions on the basis of both the caselaw on genuine and effective activity and misapplication of the test. It should be remembered that in cases where people have been working as little as 5.

In extreme cases, judicial review could be appropriate. The time-limiting of jobseeker and retained worker status, together with the need for compelling evidence embodied in the genuine prospect of work test, might be challenged by direct reference to EU law — though at the time of writing it is difficult to forecast the prospects of success.

Where domestic legislation fails to fully implement or inadequately transcribes EU legislation, that legislation can be relied on directly and the UK legislation disapplied. The HB amendments represent some of the harshest changes, particularly as they may catch those who may have been in the UK for many years.

Given the lack of impact assessment before the amendments were laid, that may offer one source of challenge as many of those hit may be the separated female partners of workers and their children and so arguably constitute unlawful discrimination. Challenges might also be made on the basis of the need to facilitate entry to the UK labour market for work seekers which is otherwise in conflict with their Treaty rights.

writing all wrongs

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See DMG paras —www. Art TFEU I was sent to prison at the age of 19 for second-degree murder.

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