UK Social Security and Child Support Commissioners' Decisions

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CIS/2364/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow the claimant's appeal. I set aside the decision of the Birmingham appeal tribunal dated 18 November 2005 and I substitute a decision that the claimant's entitlement to income support from 17 November 2004 is to be calculated on the basis that she was not a "person from abroad".

REASONS

The claimant is a Dutch national who came to the United Kingdom on 1 May 2004 with her three children. She claimed income support on 17 November 2004. The Secretary of State took the view that, as the claimant had claimed income support, she was not looking for work and, anyway, she was not a "qualified person" within the terms of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326) and so did not have a right of residence in the United Kingdom. As she also did not have a right to reside in the Channel Islands, the Isle of Man or the Republic of Ireland, the Secretary of State decided on 25 January 2005 that she was a "person from abroad" with an applicable amount of nil (see regulation 21 of, and Schedule 7 to, the Income Support (General) Regulations 1987 (S.I. 1987/1967), as then in force), with the consequence that she was not entitled to payments of income support (see section 124(1)(b) and (4)(b) of the Social Security Contributions and Benefits Act 1992).

The claimant appealed. The tribunal regarded her as a credible witness and found that she had been looking for work since she had arrived in the United Kingdom, that she had initially supported herself with money she had brought with her from Holland and that she had attempted to claim jobseeker's allowance but had been advised by the Jobcentre to claim income support instead. Had the Secretary of State not decided that she did not have a right of residence, that would have been appropriate advice because a lone parent with a right of residence and a low income would ordinarily be entitled to income support without being obliged to be available for work. However, the tribunal dismissed the claimant's appeal on the ground that, because she had not at the time of the Secretary of State's decision worked in the United Kingdom, she had no right of residence as a "worker" and she was patently no longer "self-sufficient". The claimant now appeals against that decision with the leave of Mr Commissioner Jacobs and the support of the Secretary of State.

The Secretary of State submits that the tribunal erred in failing to consider whether the claimant had a right of residence under Article 39 of the EC Treaty as a workseeker, in the light of Regina v. Immigration Appeal Tribunal, ex parte Antonissen (Case C-292/89) [1991] ECR I-745. At paragraph 21, the European Court of Justice said –

"In the absence of a Community provision prescribing the period during which Community nationals seeking employment in a Member State may stay there, a period of six months, such as that as laid down in the national legislation at issue in the main proceedings, does not appear in principle to be insufficient to enable the persons concerned to apprise themselves, in the host Member State, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged and, therefore, does not jeopardize the effectiveness of the principle of free movement. However, if after the expiry of that period the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged, he cannot be required to leave the territory of the host Member State."

On that basis, the Secretary of State submits, an EEA national has a right of residence as a workseeker where he or she is seeking employment and has a genuine chance of being engaged. It is pointed out that the right found to exist by the Court is now guaranteed by Article 14(4)(b) of Council Directive 2004/38/EC, which it is said has been transposed into domestic law with effect from 30 April 2006 by regulation 6(1)(a) and (4) of the Immigration (European Economic Area) Regulations 2006 (S.I. 2006/1003). It is also pointed out that it is not necessary to rely upon Antonissen where a "worker" becomes unemployed, because separate provision is, and was even before 30 April 2006, made for such cases (see Article 7(1) of Council Directive 68/360/EEC and Article 7(3) of Council Directive 2006/38/EC, transposed into domestic law by, respectively, regulation 5(2) of the 2000 Regulations and regulation 6(2) of the 2006 Regulations). Antonissen is relevant in the present case because the claimant had not worked in the United Kingdom and she claimed income support before 30 April 2006. I accept the Secretary of State's submission that Antonissen and Article 14(4)(b) of Council Directive 2004/38/EC guarantee a right of residence for workseekers. Regulation 6 of the 2006 Regulations unambiguously confers such a right from 30 April 2006, as a matter of domestic law.

I think I was wrong to state in paragraph 14 of CJSA/1475/2006 that, in the light of Antonissen, "the 'right to reside' test … does not, in practice, provide an additional hurdle for citizens of the European Union claiming jobseeker's allowance, save where there is a derogation from the usual rules" and I may have inaccurately recorded the Secretary of State's concession in paragraph 13. I accept that some people may be available for work and be actively seeking employment but not have a genuine chance of being engaged because, for instance, they have an insufficient command of English or Welsh for the type of job they are seeking or, perhaps, they have settled in an area where there is a particularly high level of unemployment and a dearth of jobs, so that the requirement to have a genuine chance of being engaged can be an additional hurdle. However, that additional hurdle will not often be significant and I suggest that the proportion of cases in which it will be right to reject a claim for jobseeker's allowance on the ground that the claimant does not have a right of residence rather than on the ground that the claimant does not satisfy one or more of the conditions in section 1(2) of the Jobseekers Act 1995 – because, for instance, he or she is not genuinely available for, or is not actively seeking, employment – may be relatively small. It is true that a person who is not genuinely available for, or is not actively seeking, employment may not have a right of residence, but, in such a case, it is not helpful to reject the claim solely on the ground of the lack of a right of residence without reference to the underlying ground that would apply to British citizens as well as other EEA nationals.

The present case, of course, arises on a claim for income support and there is no requirement that a claimant of income support be available for work. However, in the light of my decision in CH/3314/2005, the Secretary of State concedes that a person claiming income support is not precluded from seeking employment and therefore, until regulation 21 of the 1987 Regulations was amended with effect from 30 April 2006, was not precluded from establishing a right of residence as a workseeker. When granting leave, Mr Commissioner Jacobs said that, in the light of CH/3314/2005, he understood the issue in this case to be whether the claimant was seeking "genuine and effective" employment rather than work that was marginal and ancillary. The Secretary of State has submitted that that issue arises only in the context of deciding whether a person has obtained the status of "worker" and is not relevant where reliance is placed on Antonissen. I disagree. It seems obvious that the rationale behind Antonissen is that an EEA national must be given a proper opportunity to become a "worker" in the host state and the decision does not, in my view, require Member States to recognise a right of residence in a case where a person is not seeking work that would be "genuine and effective". However, this has probably ceased to be a live issue because, since 30 April 2006, a person claiming a right of residence as a jobseeker (the term used both in the amended 1987 Regulations and in the 2006 Regulations conferring rights of residence) is not entitled to income support and must claim jobseeker's allowance instead and, even when a jobseeker has responsibilities as a carer, he or she must be seeking employment amounting to at least 16 hours a week to qualify for jobseeker's allowance. Employment to such an extent can generally be taken to be "effective". The somewhat complicated test I devised in CH/3314/2005 was necessary only because the claimant had claimed income support, rather than jobseeker's allowance, and had declared that she was available to work for only 15 hours a week, although in the event I did find that the claimant's earning capacity was such that she could be taken to have been seeking effective employment.

As the present case also arises on a claim for income support made before 30 April 2006, I agree with Mr Commissioner Jacobs that the issues that arose in CH/3314/2005 potentially arise here too. However, the Secretary of State concedes on the facts that the claimant had a right of residence. In particular, the Secretary of State does not seek to challenge the tribunal's finding that the claimant was looking for work and, although there is some evidence that she had language difficulties, she had found work by the time the case came before the tribunal and, in the light of that evidence, the Secretary of State concedes that she also had a genuine chance of being engaged in employment at the time of her claim. The first job the claimant obtained was for only a few hours a week, but there is no evidence that she had not been looking for work for considerably more hours a week and, given the lengthy history of this case, I do not consider it necessary to go behind the Secretary of State's concession that the claimant had a right of residence.

I accept that concession and therefore need not deal with the claimant's other arguments. I give the decision set out in paragraph 1 above and I leave all other issues arising on the claimant's claim to be determined by the Secretary of State.

(signed on the original) MARK ROWLAND

Commissioner

20 March 2008