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[1996] UKSSCSC CIS_4521_1995 (29 April 1996)

R(IS) 3/97

Mr. J. Mesher CIS/4521/1995

29.4.96

Person from abroad - habitual residence - European Community nationals -national of Eire who worked in France until made unemployed but is seeking employment in the United Kingdom - whether exempt from the habitual residence test

The claimant was a national of the Republic of Ireland. In 1991 he went to work in France. After being made unemployed, he came to the United Kingdom on 4 October 1994 and claimed income support. His claim was refused, as an adjudication officer found that he was not "habitually resident" in the United Kingdom. The claimant appealed, and a tribunal considered whether the claimant was exempt from the habitual residence test under regulation 21(3)(a) of the Income Support (General) Regulations 1987, either because he was a "worker" for the purposes of Council Regulations (EEC) 1612/68 or 1251/70, or because he was "a person with a right to reside in the United Kingdom" pursuant to the European Community Council Directives 63/360/EEC or 73/148/EEC. The tribunal concluded the claimant was a "worker" for the purposes of Council Regulation (EEC) 1612/68 by virtue of his employment in France. The adjudication officer appealed to the Commissioner.

Held, allowing the appeal, that:

a person who has moved from one member state of the European Community to seek employment in another is not a "worker" for the purposes of Council Regulation (EEC) 1612/68 (paras. 9 to 11);

a person who ceases to be employed does not necessarily cease to be a "worker". However, in deciding, in relation to one member state, whether a person is a "worker" for the purposes of Council Regulation (EEC) 1612/68, no account can be taken of any work which they have done in another member state; Raulin v. Minister van Onderwijs en Wetenschappen (Case C357/89) [1992] ECR I-1027, applied (paras. 13 to 15);

European Community nationals are entitled to stay in another member state so as to look for work. However, this "right to reside" does not derive from Council Directive 68/360/EEC, but from Article 48 of the Treaty of Rome and Council Regulation (EEC) 1612/68; R v. Immigration Appeal Tribunal ex parte Antonissen (Case C-292/89) [1991] ECR I-745, applied (paras. 21 to 24);

Council Regulation (EEC) 1251/70 concerns the right of a person to remain in a member state where they have been employed. Council Directive 73/148/EEC concerns those who wish to establish themselves in a Member State to carry out activities as self-employed persons. Neither had any application to this case (paras. 16 and 19);

as the claimant could not bring himself within any of the relevant provisions of European Community law, he could not rely on the exemption from the habitual residence test in regulation 21(3)(a) of the Income Support (General) Regulations 1987.

The Commissioner set aside the tribunal decision, and remitted the appeal for a re-hearing by a different tribunal to consider whether the claimant was habitually resident for any part of the period at issue.

In case it transpired that the claimant had done some work within this time, the Commissioner drew attention to the principles laid down by the European Court of Justice upon which to decide if claimant had become a worker (para. 31).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The adjudication officer's appeal is allowed. The decision of the Newport social security appeal tribunal dated 19 January 1995 is erroneous in point of law, for the reasons given below, and I set it aside. The appeal is referred to a differently constituted social security appeal tribunal for determination in accordance with the directions given in paragraphs 29 to 32 below (Social Security Administration Act 1992, section 23(7)(b)).

The essential facts as found by the appeal tribunal are:

"[The claimant] is a national of the Republic of Ireland. In 1991 or thereabouts he went to France to work. Both the Republic of Ireland and France are member states of the EEC. He was a "worker" in France, his work being agricultural labouring. He is also qualified to work as a laboratory technician. He became unemployed. On 4 October 1994 he came to the United Kingdom. He was available for work. His prospects of obtaining work in the United Kingdom were no worse, and probably better, than in either France or the Republic of Ireland."

Those findings are a summary of the evidence, which seems not to have been in dispute, derived from an interview with the claimant on 12 October 1994, income support having been claimed from 10 October 1994.

On 1 August 1994 an addition had been made to the definition of "person from abroad" in regulation 21(3) of the Income Support (General) Regulations 1987 (the Income Support Regulations) which applies to new claims from that date onwards:

"'person from abroad' also means a claimant who is not habitually resident in the United Kingdom, the Republic of Ireland, the Channel Islands or the Isle of Man, but for this purpose, no claimant shall be treated as not habitually resident in the United Kingdom who is-

(a) a worker for the purposes of Council Regulations (EEC) No. 1612/68 or (EEC) No. 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No. 68/360/EEC or No. 73/148/EEC; or

(b) a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967; or

(c) a person who has been granted exceptional leave to remain in the United Kingdom by the Secretary of State."

By virtue of paragraph 17 of Schedule 7 to the Income Support Regulations the applicable amount of a person from abroad who is a single claimant (as in this case) is nil. The effect is thus that a single claimant who fails the habitual residence test in any week cannot be entitled to income support for that week. But claimants who come within any of sub-paragraphs (a), (b) or (c) need not show that they actually satisfy the test.

The adjudication officer took the view that the claimant in the present case did not fall into any of the exceptions in sub-paragraphs (a), (b) or (c) of the definition and that, since he had not lived in the Republic of Ireland for at least three years and had no immediate plans to return there, the question of his habitual residence in Great Britain had to be considered. She concluded that he was not habitually resident, as he had "never worked previously in Great Britain, has no bank account and has little prospect of finding work on the Isle of Wight, especially during the winter, when most jobs are seasonal during the summer months." Following the claimant's appeal, the presenting officer submitted to the appeal tribunal that although the claimant had the right of residence in the United Kingdom, that was because of the special arrangements with the Republic of Ireland, so that the regulations dealing with EEC workers were superfluous. There was no reference in either written or oral submissions on behalf of the adjudication officer to any decisions of the European Court of Justice (ECJ).

The appeal tribunal on 19 January 1995 allowed the claimant's appeal and decided that the claimant was not disqualified from income support from
10 October 1994 by reason of being a person from abroad and not habitually resident in the United Kingdom. It took the view, which it said was not disputed by the claimant, that he could not possibly be habitually resident in the United Kingdom after being here for only a week and that he was also not habitually resident in the Republic of Ireland. Therefore, he had to show that he came within one of the exceptional cases, of which only (a) was potentially relevant. The appeal tribunal's reasons for decision continued:

"5. Sub-paragraph (a) is itself divided into two parts. Regulations EEC 1612/68 and 1251/70 apply to "workers". Directives 68/360 EEC and 73/148 apply to "persons with a right to reside in the United Kingdom" pursuant to those directives. We will deal with the latter first.

The adjudication officer argues that because [the claimant's] right of residence exists because of the special reciprocal arrangements with the Republic of Ireland, this group of directives do not apply to him, because they are superfluous. They only apply to nationals of other EEC member states. We disagree. There is nothing in logic or, as far as we can see, in the regulations either, to say that the two grounds right of residence cannot exist in parallel. We therefore proceeded to consider whether [the claimant] had a right of residence in the United Kingdom pursuant to either of those directives. The directives address the issue by requiring member states to abolish restrictions. The adjudication officer appears to argue that this of itself does not confer a right. Something more is required, the issue of a work permit or other such document. We disagree. If a restriction is abolished, a right comes into being which the individual is entitled to enjoy, it cannot be suspended merely because a document, a permit of some kind, has not been issued as evidence of that right. The primary articles (numbered 1 in each case) define the persons in whom a right to reside is vested. The wording in 68/360 is particularly unhappy, possibly because of loss of clarity in translation. It requires member states to abolish restrictions on the movement and residence "of nationals of the said States and of members of their families to whom Regulation (EEC) No 1612/68 applies". The lack of punctuation couples with the ordinary principles of English construction, distinguishes this wording from "nationals of the said States to whom Regulation 1612/68 applies, and of members of their families", which is what the adjudication officer says it means. This posed the tribunal great difficulty, which fortunately we did not have to resolve because the answer was found elsewhere. Directive 73/148 requires abolition of restrictions on the movement and residence of "nationals of a Member State who are established or who wish to establish themselves in another Member State in order to pursue activities as self-employed persons, or who wish to provide services in that state ...". The evidence is that [the claimant] is seeking employment, not self-employment, so this directive does not appear to apply to him.

We turn at last to Regulations EEC 1612/68 and 1251/70. Regulation 1251/70 applies to the self-employed which, as discussed above, is not applicable to [the claimant]. 1612/68 applies to "workers". If [the claimant] establishes that he is a "worker" for these purposes, he succeeds in his appeal. Unfortunately, the regulation does not seek to define "worker" as if its meaning were self-evident. The adjudication officer draws a distinction between "workers" and "work-seekers". A worker, she says, must be in employment. Once that employment ends, and assuming he is still available for employment, his status changes to "work-seeker". [The claimant], she says, is a "work-seeker" and therefore outside 1612/68. The tribunal decided to adopt the following definition of "worker"; one who normally supports himself by his own exertions in return for pay. The definition allows for distinction between employed and self-employed workers, but excludes those who have permanently left the labour market through, for example, investment income or maintenance by relatives. If the adjudication officer's argument is right, the object of 1612/68 would be fundamentally undermined because only those who had existing jobs could pursue jobs in other Member States. We are satisfied that [the claimant] was a worker in a Member State (i.e. an agricultural worker in France) until he fell into unemployment, and that the supervention of that unemployment did not destroy his status as a worker to whom Regulation 1612/68 applies. We are further satisfied that it was perfectly reasonable for [the claimant] to pursue employment here; apart from his agricultural experience, he has a useful and entirely portable qualification as a laboratory technician with which he has as good a chance, if not better, of finding employment in the United Kingdom as in either France or the Republic of Ireland. Provided he satisfies the other conditions of entitlement, notably availability for work, he should not be disqualified from income support."

The adjudication officer was granted leave to appeal to the Commissioner by the appeal tribunal chairman. An oral hearing of the appeal took place on 16 April 1996, at which the adjudication officer and the Secretary of State were represented by Miss Geraldine Clark of Counsel. I am grateful to Miss Clark for her detailed and thorough submissions. The claimant did not attend and was not represented, but at the hearing the arguments which could legitimately be made in his favour were carefully considered.

I have concluded that the appeal tribunal did err in law in its interpretation of the exception in sub-paragraph (a) of the additional definition of "person from abroad". However, as will appear below, that is a conclusion which has only been reached after very detailed analysis of the language used by the ECJ in a series of decisions. It is a conclusion which could not be reached simply by looking at the words of the regulations and directives referred to in sub-paragraph (a) of the definition. Legislation by reference is often criticised. That is where the conditions or scope of application of a particular provision are not expressly set out in the provision itself but instead some definition in another piece of legislation is referred to. The criticism is on the basis that a person who wishes to find out the legal position, instead of being able to look in one place, has to look at two or more pieces of legislation, which may not all be easily accessible, in combination. The force of such criticism is greatly increased where the legislation referred to does not itself provide the necessary definition, so that the answer can only be found by discovering decisions in cases interpreting the meaning of that legislation. In the present case, the appeal tribunal was faced with just such a situation. It took an admirably sensible view of the meaning of Regulation 1612/68 and produced an answer which was entirely reasonable in the context of the promotion of the freedom of movement for workers within the European Community. Unfortunately, however, its answer cannot be supported on an analysis of the Community meaning given to "worker" in Regulation 1612/68 by the ECJ.

The written submission dated 24 May 1995 on behalf of the adjudication officer sets out many of the provisions of the relevant European Community Regulations and Directives. To reproduce the entire text of the regulations and directives, even in an appendix, would make this decision unmanageably long. Therefore, I have below summarised the relevant provisions where necessary and quoted at length from the relevant ECJ decisions.

Worker

I deal first with the ground on which the appeal tribunal made its decision, that the claimant was a worker for the purposes of Regulation 1612/68. It is plain that some provisions of the regulation apply to nationals of one Member State who are seeking work in another Member State. Thus Article 5, in Title I of the Regulation on eligibility for employment, provides:

"A national of a Member State who seeks employment in the territory of another Member State shall receive the same assistance there as that afforded by the employment offices in that State to their own nationals seeking employment."

Since Regulation 1612/68 is implementing the principle of the freedom of movement for workers contained in Article 48 of the Treaty of Rome, can it then be said that any national of a Member State to whom any provision of Regulation 1612/68 applies is thereby within the concept of "worker" for that purpose? There are statements in judgments of the ECJ which might be thought to support an affirmative answer. Thus in Procureur du Roi v. Royer (Case 48/75) [1976] ECR 497 it was said in paragraph 31 that:

"the right of nationals of a Member State to enter the territory of another Member State and reside there for the purposes intended by the Treaty, in particular to look for or pursue an occupation or activities as employed or self-employed persons, or to rejoin their spouse or family, is a right conferred directly by the Treaty, or, as the case may be, by the provisions adopted for its implementation."

And in Levin v. Staatssecretaris van Justitie (Case 53/81) [1982] ECR 1035 it was said in paragraph 9 that:

"the rights deriving from the principle of freedom of movement for workers and more particularly the right to enter and stay in the territory of a Member State are ... linked to the status of a worker or of a person pursuing an activity as an employed person or desirous of so doing."

It has also been accepted at least since the decision in Kempf v. Staatssecretaris van Justitie (Case 139/85) [1986] ECR 1741, and many times repeated, that freedom of movement for workers forms one of the foundations of the Community and that consequently the provisions laying down that freedom must be broadly interpreted.

The question posed in the last paragraph was more directly addressed in Centre public d'aide sociale de Courcelles v. Lebon (Case 316/85) [1987] ECR 2811. One of the questions referred by the national court was whether in order to rely on the status of worker to enter and establish herself in another Member State it is sufficient for a person to claim that she wishes or intends to work. The Advocate General accepted that, so far as the question was concerned with entry to the territory of a Member State and the taking up of temporary residence for the purpose of looking for work, by a person who provided evidence by specific conduct of a serious intention to find work, there was no problem. However, Mrs. Lebon was seeking to rely on Article 7 of Regulation 1612/68 to claim equality of treatment with national workers in relation to social and tax advantages. The Advocate General stated, in paragraph 49 of his opinion:

"In that respect it is important to note that the wording of Article 7 of Regulation No. 1612/68 refers to the actual pursuit of an activity. It is significant in any event that wherever in Title I to that regulation a person seeking work is referred to it is made clear and the expression 'worker' is not used. It is also appropriate to mention, as the Netherlands Government has done, the fact that in the description of the nature of the right to freedom of movement in Article 48 of the Treaty there is at most (as in paragraph (3)(a)) reference to offers of employment but it is nowhere stated that persons seeking work are to be treated as workers for the purposes of that provision."

The ECJ dealt with that question from the national court as follows, in paragraphs 25 to 27 of its judgment:

"25. It is clear from the context that the fourth question seeks, in substance, to ascertain whether equal treatment with regard to social and tax advantages, which is laid down by Article 7(2) of Regulation No. 1612/68, also applies to persons who move in search of employment.

It must be pointed out that the right to equal treatment with regard to social and tax advantages applies only to workers. Those who move in search of employment qualify for equal treatment only as regards access to employment in accordance with Article 48 of the EEC Treaty and Articles 2 and 5 of Regulation No. 1612/68.

The answer to the fourth question must therefore be that the equal treatment with regard to social and tax advantages which is laid down by Article 7(2) of Regulation No. 1612/68 operates only for the benefit of workers and does not apply to nationals of Member States who move in search of employment."

It is absolutely plain from the terms used by the ECJ that not all those to whom some provision of Regulation 1612/68 are workers and that if all that can be said in favour of a person is that the person has moved from one Member State to another in order genuinely to seek employment in the second Member State the person is not a worker for the purposes of Regulation 1612/68.

However, that conclusion does not in itself undermine the appeal tribunal's reasoning in the present case. The appeal tribunal decided that the claimant was a worker for the purposes of Regulation 1612/68 by virtue of his work in France and that he had not lost that status on moving to the United Kingdom. Miss Clark submitted that the appeal tribunal did err in law in that conclusion. She submitted that immediately on ceasing employment a person loses the status of worker and becomes merely a workseeker. I do not think that the decisions which she relied on, Lair v. Universitat Hannover (Case 39/86) [1988] ECR 3161 and Raulin v. Minister van Onderwijs en Wetenschappen (Case C-357/89) [1992] ECR I-1027, go that far. Indeed, I think that they are against her. Both cases concerned persons who had given up employment in order to pursue full-time educational studies. In Lair the ECJ decided (in point 3 of the operative part) that:

"a national of another Member State who undertakes university studies in the host State leading to a professional qualification, after having engaged in occupational activity in that State, must be regarded as having retained his status as a worker and is entitled as such to the benefit of Article 7(2) of Regulation No. 1612/68, provided that there is a link between the previous occupational activity and the studies in question."

In paragraph 36 of the judgment, the ECJ had stated:

"It is therefore clear that migrant workers are guaranteed certain rights linked to the status of worker even when they are no longer in an employment relationship."

In Raulin the ECJ decided, at point 4 of the operative part, that:

"a migrant worker who leaves his job and begins a course of full-time study which has no link with his previous occupational activities does not retain his status as a migrant worker for the purposes of Article 48 of the EEC Treaty, except in the case of a migrant worker who becomes involuntarily unemployed."

In paragraph 21 of the judgment the ECJ had made it clear, confirming paragraph 37 of the judgment in Lair, that the requirement of a link between the university studies and the previous occupational activities was to be lifted only where the person had become involuntarily unemployed and was obliged by the conditions of the labour market to undertake vocational training in another field of activity.

It seems to me that those cases are dealing with situations where people who have previously undertaken occupational activities would as a general matter be said to have taken themselves out of the labour market by undertaking full-time educational studies. They recognise that nevertheless those concerned may be regarded as retaining the status of worker under certain conditions. They by no means decide that those are the only conditions under which someone who ceases to be in an employment relationship retains the status of worker. In particular, I consider that the two cases do not deal at all with the situation where a person ceases, voluntarily or involuntarily, to be in an employment relationship, but remains in the labour market, as for instance by making genuine efforts to find work. Article 7(1) of Regulation 1612/68 itself recognises that workers who are nationals of another Member State are entitled not to be discriminated against in some specific respects should they become unemployed. Thus, I reject Miss Clark's submission that a person who ceases employment immediately loses the status of worker.

What Lair and Raulin do show, though, is that the place in which the person concerned has carried out occupational activities is of crucial importance. The passage cited above from the operative part of Lair refers to occupational activities carried out in the host State. In Raulin, the national court specifically asked whether in assessing whether a person is a worker within the meaning of Article 48 of the EEC Treaty account must be taken of all the activities which have been pursued within the European Community or solely of the activities most recently pursued in the host State. On this question the ECJ said, at paragraphs 17 and 19 of its judgment (and see point 3 of the operative part):

"17. With regard to the activities pursued in Member States other than the host State, it should be noted that the aim of Regulation (EEC) No. 1612/68 is to facilitate freedom of movement for workers and, to this end, to ensure integration of workers in the host country. The status of migrant worker and, consequently, the right to equality of treatment with national workers, is acquired only through the occupational activities exercised in the host country.

...

The answer to the third question must therefore be that in assessing whether a person is a worker, account should be taken of all the occupational activities which the person concerned has pursued within the territory of the host Member State but not the activities which he has pursued elsewhere in the Community."

That is a very precise ruling. The ECJ makes it clear that it is considering the status of worker for the general purposes of Regulation 1612/68, and not merely the question of a link between occupational activities and subsequent studies in a student case. That is why there is a reference to all the occupational activities which have been pursued in the host State, and not merely to the most recent occupational activity. Then it is ruled that in assessing whether a person is a worker within the host State occupational activities pursued elsewhere in the Community must be left out of account. The essence of that ruling appears to have been applied in a case which has not yet been reported, and whose transcript I have not seen (Tsiotras v. Landeshauptstadt Stuttgart (Case C-171/91) decided on 26 May 1993).

It is at that point that the commonsense approach of the appeal tribunal parted company with the Community meaning which must be given to the meaning of "worker" for the purposes of Regulation 1612/68. The appeal tribunal erred in law in taking into account the work which the claimant had done in France in determining whether or not he was a worker. Since the undisputed evidence was that, at least at the date of the claim for income support, the claimant had never undertaken any occupational activities as an employee in the United Kingdom, the only possible conclusion was that he was not at that date a worker for the purposes of Regulation 1612/68. I must admit to finding the ruling in Raulin surprising. I can see the argument that a Member State need only integrate nationals of other Member States (and their families) and provide them with the same social and tax advantages as national workers when they have shown themselves to be part of the workforce of the host State. However, the result of the ruling is that people who would be workers if their occupational activities had been carried out in the host State are not workers because the identical activities have been carried out in other Member States. That does not seem likely to promote the freedom of movement of workers. But be that as it may, I cannot ignore the clear ruling in Raulin which establishes the Community meaning of worker for the purposes of Regulation 1612/68. It is that meaning which must be applied in the context of the definition of "person from abroad" in regulation 21(3) of the Income Support Regulations.

I should mention, for the sake of completeness, that the claimant cannot be a worker for the purposes of Regulation 1251/70. That regulation confers a right on nationals of a Member State who have worked as employed persons in the territory of another Member State, and members of their families, to remain in the Member State in which they were employed on the termination of employment. Clearly for that purpose only employment in the Member State in question is relevant to the assessment of whether someone is a worker.

The right of residence

The appeal tribunal did not come to a conclusion on the arguments put to it on this issue, because of the view which it took of the meaning of "worker". I have found that view to have been legally wrong. Can the appeal tribunal's decision nevertheless be supported on the basis that the claimant had a right to reside in the United Kingdom pursuant either to Directive 68/630 or Directive 73/148?

Before the appeal tribunal it was argued for the adjudication officer that because the claimant had a right to reside in the United Kingdom under special reciprocal arrangements with the Republic of Ireland neither Directive applied to him. At the oral hearing before me Miss Clark did not take that line. She submitted that, although the claimant undoubtedly had what she carefully called a right to stay in the United Kingdom for the purposes of seeking employment, that right did not stem from either of the two Directives. Just as a person could in some senses be a worker without being a worker for the purposes of Regulation 1612/68, a person could have a right to stay or reside in the United Kingdom without having a right to reside pursuant to Directive 68/630 or Directive 73/148.

It is only necessary to consider Directive 68/630 in detail. Directive 73/148 applies to nationals of Member States who are established or wish to establish themselves in another Member State in order to pursue activities as self-employed persons or to provide services there. In the present case all the evidence was that the claimant was seeking employment as an employee in the United Kingdom, not to establish himself in self-employment. I was referred to a decision dated 25 March 1996 of the Chief Commissioner in Northern Ireland on the interpretation of Directive 73/148, decision No. C10/95(IS). That decision is of no assistance in relation to Directive 68/630, and I say no more about it or whether it correctly interprets Directive 73/148. Miss Clark relied both on the terms of Directive 68/630 and on the decision of the ECJ in R v. Immigration Appeal Tribunal, ex parte Antonissen (Case C-292/89) [1991] ECR I-745.

Article 1 of the Directive requires Member States to abolish restrictions on the movement and residence of nationals and members of their families to whom Regulation 1612/68 applies. In the present cases, Regulation 1612/68 did apply to the claimant in so far as its provisions apply to those who are not workers. Article 3 of the Directive requires Member States to allow persons referred to in Article 1 to enter their territory simply on production of a valid identity card or passport. Then Article 4 requires Member States to grant the right of residence to persons referred to in Article 1 who are able to produce the document with which they entered the territory and a confirmation or certificate of engagement by an employer. A residence permit is to be issued as evidence of the granting of the right of residence. Article 8 requires Member States, without issuing a residence permit, to recognise the right of residence of frontier and seasonal workers and those pursuing activities expected to last no longer than three months.

The problem of how to work out the effect of those provisions in combination with other provisions on freedom of movement was set out very clearly in the Advocate General's opinion in Antonissen. In paragraph 11, after having cited the relevant provisions of Directive 68/630, he wrote that "as far as the right of residence is concerned, no provision of the directive covers Community nationals seeking employment". He continued, in paragraphs 12 to 14:

"12. Consequently, perusal of the legislation suggests that a Community national seeking employment in the territory of another Member State is entitled, having regard to the express provisions of Regulation No. 1612/68, to move within the territory of that State, as provided in Article 48 of the Treaty, and that Directive 68/630 formally sanctions his right to enter that territory. In contrast, no provision of that directive, or of any other piece of Community legislation, has formally provided for a right of residence for such a Community national. Must the conclusion be reached that such a right does not exist?

This conclusion has not commended itself to the Court of Justice. Without ruling directly and specifically on Community nationals' right to reside in a Member State where they are seeking employment, it has, incidentally but quite unequivocally, referred to the existence of such a right. [the Advocate General then quoted the passages from Royer and Levin set out in para. 9 above].

In view of those judgments, it would appear to me to be incorrect to argue, as the German Government does, that a Community national seeking employment in another Member State has no right to stay in its territory. In my estimation, the Court has accepted that such a right exists in principle, but without specifying its formal source. In view of the apparent silence of Directive 68/630, it is more tempting to seek that source in Articles 1 and 5 of Directive 1612/68 in conjunction with Article 48(3) of the Treaty."

Thus the Advocate General accepted that a Community national seeking employment has a right to reside or stay (he seems to use the terms interchangeably) in a Member State, but suggested that the right derives from Article 48(3) of the Treaty of Rome.

The ECJ in its judgment said the following, at paragraphs 8 to 15:

"8. By means of the questions submitted to the Court for a preliminary ruling the national court essentially seeks to establish whether it is contrary to the provisions of Community law governing the free movement of workers for the legislation of a Member State to provide that a national of a Member State who entered the first State in order to seek employment may be required to leave the territory of that State (subject to appeal) if he has not found employment there after six months.

In that connection it has been argued that, according to the strict wording of Article 48 of the Treaty, Community nationals are given the right to move freely within the territory of the Member States for the purpose only of accepting offers of employment actually made (Article 48(3)(a) and (b)) whilst the right to stay in the territory of a Member State is stated to be for the purpose of employment (Article 48(3)(c)) .

Such an interpretation would exclude the right of a national of a Member State to move freely and to stay in the territory of other Member States in order to seek employment there, and cannot be upheld.

Indeed, as the Court has consistently held, freedom of movement for workers forms one of the foundations of the Community and, consequently, the provisions laying down that freedom must be given a broad interpretation (see, in particular, the judgment of 3 June 1986 in Case 139/85 Kempf v. Staatssecretaris van Justitie [1986] ECR 1741, para. 13).

Moreover, a strict interpretation of Article 48(3) would jeopardise the actual chances that a national of a Member State who is seeking employment will find it in another Member State, and would, as a result, make that provision ineffective.

It follows that Article 48(3) must be interpreted as enumerating, in a non-exhaustive way, certain rights benefiting nationals of Member States in the context of free movement of workers and that that freedom also entails the right for nationals of Member States to move freely within the territory of the other Member States and to stay there for the purposes of seeking employment.

Moreover, that interpretation of the Treaty corresponds to that of the Community legislature, as appears from the provisions adopted in order to implement the principle of free movement, in particular Articles 1 and 5 of Regulation No. 1612/68 EEC of the Council of 15 October 1968 on freedom of movement for workers within the Community ..., which presuppose that Community nationals are entitled to move in order to look for employment, and hence to stay, in another Member State.

It must therefore be ascertained whether the right, under Article 48 and the provisions of Regulation 1612/68 (cited above), to stay in a Member State for the purposes of seeking employment can be subjected to a temporal limitation."

The ECJ thus endorses the existence of a right to stay in the territory of a Member State for the purpose of seeking employment, by implication from Article 48(3) of the Treaty of Rome and the principle of freedom of movement for workers. In paragraph 14 of the judgment the ECJ refers to the provisions implementing the principle and only in particular to Regulation 1612/68. That reference might therefore be taken to include a reference to Directive 68/630. But all that the ECJ is saying there is that the provisions which implement the principle of free movement for workers presuppose the existence of the right to stay in the territory of a Member State for the purpose of seeking employment, not that the right derives from the implementing provisions. And in paragraph 15 the ECJ refers specifically to the right to stay under Article 48 and Regulation 1612/68. That seems, in the present state of the ECJ case-law, to be conclusive that a person who has entered a Member State for the purpose of seeking employment does not have a right of residence in that State pursuant to Directive 68/630. The right which such a person has, whether there is any difference between a right to stay and a right of temporary residence, is pursuant (certainly) to Article 48 (3) of the Treaty of Rome and (probably) also to Regulation 1612/68.

Consequently, the claimant in the present case, who on the evidence before the appeal tribunal had no right to reside in the United Kingdom under Article 4 or 8 of Directive 68/630, had no right to reside here pursuant to Directive 68/630 at all.

The Commissioner's decision.

The appeal tribunal's decision that the claimant could not be treated as not habitually resident in the United Kingdom must therefore be set aside as erroneous in point of law.

The question then arises whether I should give the decision which the appeal tribunal should have given on the facts it found or whether the appeal should be referred to a new appeal tribunal. Doubt was expressed on behalf of the adjudication officer whether the appeal tribunal should have looked merely at the date of claim or at each week in the period down to the date of the hearing. Miss Clark submitted that, on the assumption that the latter was correct, I could give the decision on the basis of the appeal tribunal's findings of fact (which said nothing about what the claimant had been doing in the interval between the adjudication officer's decision and its hearing) if I was sure that on any footing no-one could become habitually resident after a period of residence as short as the three and a half months between the claimant's arrival in the United Kingdom and the date of the appeal tribunal hearing. Otherwise, the appeal would have to go to a new appeal tribunal. Miss Clark suggested that the approach in Commissioner's decision CIS/1067/1995 should be followed, so that before residence becomes habitual an appreciable period of actual settled residence has to be demonstrated. In particular, she referred to the Commissioner's suggestion that at least three months of such residence would be a minimum in almost all circumstances.

It is completely settled that in the case of an appeal from an initial adverse decision on a claim for income support for an indefinite period an appeal tribunal should consider the entire period down to the date of its decision (unless the running of the indefinite claim has already been terminated). Thus any substituted decision of mine based on the facts found by the appeal tribunal on 19 January 1995 would have to consider the whole period from 10 October 1994 down to 19 January 1995 and whether by any date in that period the claimant had actually become habitually resident in the United Kingdom. I have not heard any argument in the present case about the correctness or otherwise of CIS/1067/1995, but on the assumption that its approach should be applied I do not think that it would be fair to decide the claimant's appeal against him on the basis that no evidence about the period from 4 October 1994 to 19 January 1995 could possibly lead to a conclusion that he had become habitually resident in the United Kingdom at any date in that period. I also bear in mind that, since the claimant had a decision in his favour from the appeal tribunal, although payment of benefit was suspended by the Secretary of State, he may not have appreciated the need to make a fresh claim for income support in order to protect his position.

Therefore the appeal is referred to a differently constituted social security appeal tribunal for determination in accordance with the following directions.

Directions to the new appeal tribunal

There must be a complete rehearing before the new appeal tribunal. That means that the new appeal tribunal must make its own independent findings of fact, on the evidence before it, and that the period in issue will run from 10 October 1994 down to the date of the rehearing, unless the running of the indefinite claim has been terminated on some earlier date (see R(S) 1/83, para. 11, R(SB) 4/85, para. 13, R(IS) 3/93 and the tribunal of Commissioners' decisions in CIS/391/1992, CIS/417/1992, CSIS/28/1992 and CSIS/40/1992). I do not know what claims for benefit the claimant has made since 19 January 1995 or, if any have been made, whether benefit has been awarded. Evidence on those matters, with supporting documentation if possible, should be presented to the new appeal tribunal by the adjudication officer.

On the question of whether the claimant is, under any of the exceptions to the new part of the definition of "person from abroad", not to be treated as not habitually resident, the new appeal tribunal must apply the legal approach to the interpretation of exception (a) which is set out above, and in particular the conclusions expressed in paragraphs 14 and 15 and 23 and 24.

It is possible that by some date within the period in issue before the new appeal tribunal the claimant will have done enough work as an employee in the United Kingdom to come within the meaning of "worker" for the purposes of Regulation 1612/68. Since I have no information at all about the claimant's activities after the date of claim, I can give no specific directions. Everything will depend on the evidence presented at the rehearing. The new appeal tribunal must apply the principles summed up by the ECJ in its judgment in Raulin, in particular in paragraphs 10 and 12 to 14:

"10. It should be recalled at the outset that the Court has consistently held that the concept of worker has a Community meaning and must not be interpreted in a restrictive manner. Nevertheless, in order to be regarded as a worker, a person must perform effective and genuine activities to the exclusion of activities on such a small scale as to be purely marginal and ancillary. The essential characteristic of an employment relationship is that for a certain period a person performs services for and under the direction of another person in return for which he receives remuneration (see in particular the judgment in Case 197/86 Brown v. Secretary of State for Scotland [1988] ECR 3205, para. 21). In this context, the nature of the legal relationship between the employee and the employer is not decisive in regard to the application of Article 48 of the EEC Treaty (see the judgment in Case 344/87 Bettray v. Staatssecretaris van Justitie [1989] ECR 1621, para. 16).

...

By its second question, the national court wishes to know whether the fact that a person has exercised an economic activity for only a short period means that such activity is purely marginal and ancillary, with the result that the person exercising that activity cannot be regarded as a worker.

It should be recalled that whilst part-time work is not excluded from the field of application of the rules on freedom of movement for workers, those cover only the pursuit of effective and genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary (judgment in Case 53/81 Levin v. Staatssecretaris van Justitie [1982] ECR 1035, para. 17). It is up to the national courts to make the necessary findings of fact in order to establish whether the person concerned can be considered to be a worker within the meaning of that case-law.

The national court may, however, when assessing the effective and genuine nature of the activity in question, take account of the irregular nature and limited duration of the services actually performed under a contract for occasional employment. The fact that the person concerned worked only a very limited number of hours in a labour relationship may be an indication that the activities exercised are purely marginal and ancillary."

That statement of principles assumes, as discussed in paragraph 13 above, that a person who is a worker for the purposes of Regulation 1612/68 remains a worker after the termination of the employment relationship, in appropriate circumstances. Similarly, the evidence may show that the claimant has acquired a right of residence in the United Kingdom under Directive 68/630 by employment here. Such a right may exist although a residence permit has not in fact been issued (see para. 36 of Raulin, confirming several earlier decisions).

If the new appeal tribunal concludes, in relation to any part of the period in issue, that the claimant is not to be treated as not habitually resident in the United Kingdom, then for that period he is not to be treated as a person from abroad and all the normal conditions for entitlement to income support must be considered. In relation to all weeks to which that conclusion does not apply, the new appeal tribunal must consider whether the claimant is actually habitually resident in the United Kingdom. In doing that, the new appeal tribunal must consider whatever Commissioners' decisions on the meaning of habitual residence are available at the date of the rehearing. It is probable that by that date there will have been one or more decisions in addition to CIS/1067/1995, which may or may not take the same approach. I cannot in the present decision direct the new appeal tribunal which decision or decisions should be followed if there is any divergence of approach.

Because the new appeal tribunal will be considering a period extending after, and possibly well after, 19 January 1995, it will be particularly valuable if the claimant attends the rehearing and is able to give evidence, with any supporting documentation available, about his activities in the whole period from the date of his arrival in the United Kingdom onwards.

Date: 29 April 1996 (signed) Mr. J. Mesher

Commissioner