UKSSCSC CIS_16410_1996 (18 March 1998)
Mr. D. Williams CIS/16410/1996
Person from abroad - habitual residence – European Union nationals - whether Council Directive 68/360/EEC restricted worker's right of residence to period of employment
The claimant, a French national, arrived in Britain in July 1994. She was employed as a foreign language assistant from October 1994 to 31 May 1995. She claimed income support from 7 June 1995. The Adjudication Officer decided that she was not habitually resident in the United Kingdom at the date of claim. On appeal, the tribunal decided that the claimant had lost her right to reside under Council Directive 68/360/EEC when her employment ended and that on the facts of the case, she was also not actually resident in the United Kingdom. The claimant appealed to the Commissioner.
Held, allowing the appeal, that:
- the decision that the claimant was not actually resident in the United Kingdom was wrong since this was not supported by the tribunal's findings of fact;
- the tribunal's unstated assumption that the claimant could not be habitually resident combined with the failure to apply European Community law as part of the "habitual residence" test were errors of law (paragraphs 10 and 11);
- whether a person remained a worker after her employment ended depended on the circumstances of her leaving, in particular her intentions and actions at the time, which could indicate whether she was still in the labour market or not (following the Commissioner's analysis of Lair v Universitat Hannover  ECR 3161 in R(IS)12/98) (paragraph 14);
- whether the claimant was a worker for the purposes of Council Regulation (EEC) 1612/68 was independent of any other rights she might have under Council Directive 68/360/EEC which had been implemented by the Immigration (European Economic Area) Order 1994 (SI 1994 No. 1895). The residence permit was a recognition of the claimant's rights of residence and not a formal grant of those rights. The claimant's right to reside was derived directly from her rights under Article 48 of the European Community Treaty (see Procureur du Roi v Royer  ECR 497 and Roux v Belgian State  ECR 1-273) and subject only to the condition that she was carrying on an economic activity within the meaning of Articles 48, 52 or 59 (paragraph 20);
- as the claimant did not require a work permit, no limit could have been imposed on her under Article 12 of the 1994 Order. Furthermore, the imposition of any limit to someone with a job lasting between three and twelve months was not automatic but discretionary (paragraph 23).
After further findings of fact had been made, the Commissioner decided that the claimant was, and was to be treated as, habitually resident in the United Kingdom on the date of claim.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
"a claimant who is not habitually resident in the United Kingdom"
"no claimant shall be treated as not habitually resident in the United Kingdom who is —
(a) a worker for the purposes of Council Regulation (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......"
Findings: "The appellant made a claim to income support on 7 June 1995. She is a French national and has been living in the United Kingdom for more than one year. She has returned to France on a number of occasions, her family is still in that country she holds a return ticket and has possessions in France."
Reasons: "The Regulation concerning EEC Nationals are complicated but the majority do not apply to the facts of this case. The appellant does not satisfy the habitual residents tests as she had the right to reside here only until 31 May 1995 and therefore has lost her right under Directive 68/360. On the facts of the case we also find that she is not actually resident in this country as she still visits France regularly and her family is there. She also still holds a return ticket. Accordingly, the appeal cannot be allowed."
Actual habitual residence
Entitlement under EC law
"The question is whether the circumstances of the leaving, and in particular the person's intentions and actions at the time, indicate that the person was still in the labour market or not." (CIS/12909/1996 [R(IS) 12/98], paragraph 21).
In my view this is the test to be applied to this claimant. I add that the claimant had, at the time of her claim, already sought and obtained two genuine and effective jobs in the United Kingdom, and had then sought further employment. She was not therefore to be judged only as a work-seeker.
The relevance of Council Directive 68/360
" [The presenting officer] referred to paragraph 6.29 of the submission which maintained that the appellant lost her right to reside in this country habitually because she had been in the country for more than one year and the right had ceased on 31 May 1995."
The adjudication officer's submission at paragraph 6.29 reads:
"[The claimant] worked for an employer in the United Kingdom from October 1994 to 31 June 1995. I submit that under Directive 68/360 she had the right to reside here only until 31 June 1995. Having lost this right, [the claimant] cannot be treated as being habitually resident in the United Kingdom under that provision. [The claimant's] employment was for more than 3 months and less than one year and therefore her rights of residence were limited to the period of employment"
"Whereas Council Regulation (EEC) No. 1612/68 fixed the provisions governing freedom of movement for workers within the Community; whereas consequently, measures should be adopted for the abolition of restrictions which still exist concerning movement and residence within the Community, which conform to the rights and privileges accorded by the said Regulation to nationals of any Member State who move in order to pursue activities as employed persons and to members of their families;
Whereas the rules applicable to residence should, as far as possible, bring the position of workers from other Member States and members of their families into line with that of nationals..."
The Directive was adopted by the European Council on the same day as Regulation 1612/68, to assist in implementing it. It is clear from this and from both the title and the preamble that the purpose of the Directive is to abolish existing restrictions preventing free movement in particular by means of residence permits for non-national workers and for members of their families. In principle, therefore, it is to be expected that the terms of the Directive will assist the free movement of workers rather than restrict it.
"Member states shall, acting as provided in this Directive, 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." (Regulation 1612/68 applies to any national of a Member State: Article 1 paragraph 1 of the Regulation).
Article 4 provides, in part:
"1. Member States shall grant the right of residence in their territory to the persons referred to in Art. 1 who are able to produce the documents listed in paragraph 3... (For a worker, paragraph 3 requires only the production of a passport or identity card used to enter the territory of the state and conformation of employment.)
Article 6 provides, in part:
"3. Where a worker is employed for a period exceeding three months but not exceeding a year in the service of an employer in the host state or in the employ of a person providing services, the host Member State shall issue him a temporary residence permit, the validity of which may be limited to the expected period of the employment."
Article 7 provides, in part:
"1. A valid residence permit may not be withdrawn from a worker solely on the ground that he is no longer in employment, either because he is temporarily incapable of work as a result of illness or accident, or because he is involuntarily unemployed, this being duly confirmed by the competent employment office."
Article 4 of the 1994 Order provides, in part:
"(1) A qualified person shall be entitled to reside in the United Kingdom, without the requirement for leave to remain under the 1971 Act, for as long as he remains a qualified person."
Article 6 provides, in part:
"(l) In this Order "qualified person" means an EEA national who undertakes in the United Kingdom the activities of -
(a) a worker; ...
(2) For the purposes of paragraph (1) -
(a) a "worker" means a worker within the meaning of Article 48 of the EC Treaty; ...
Article 7 provides, in part:
"(1) A worker does not cease to be a qualified person on the ground of unemployment if —
(a) he is temporarily incapable of work as a result of illness or accident, or
(b) he is involuntarily unemployed and that fact is duly recorded by the relevant employment office."
Article 12 provides, in part:
"(2) In the case of a worker who is to be employed in the United Kingdom for less than twelve months but more than three months, the validity of the residence permit may be limited to the duration of the employment."
"It should be pointed out that the court has already held on several occasions that the right of residence is a right conferred directly by the Treaty subject only to the condition that the person concerned is carrying on an economic activity within the meaning of articles 48, 52 or 59 of the Treaty" (paragraph 9).
Date: 18 March 1998 (signed) Mr. D. Williams