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UK Social Security and Child Support Commissioners' Decisions
You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2008] UKSSCSC CIS_601_2008 (24 July 2008)
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Cite as: [2008] UKSSCSC CIS_601_2008
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[2008] UKSSCSC CIS_601_2008 (24 July 2008)
- My decision is given under section 14(8)(a)(i) of the Social Security Act 1998:
- Does a claimant for income support who has alternated between working and receiving jobseeker's allowance before becoming unable to work have a right to reside? It all depends, but in the circumstances of this case the answer is: no.
- The Secretary of State decided that the claimant did not have a right to reside, but on appeal the tribunal decided that he did and was eligible for income support. The Secretary of State appealed against that decision with the leave of a district chairman.
- Whether or not the claimant had a right to reside depends on a complex interrelationship of EC and domestic law. The EC law consists of the EC Treaty, the decisions of the European Court of Justice and Directive 2004/38/EC. The domestic law consists of the Immigration (European Economic Area) Regulations 2006 and the Income Support (General) Regulations 1987. It is not immediately obvious how some of the provisions in the EEA Regulations relate to the terms of the Directive. This requires analysis of the way that the rights of those who are looking for work have been analysed under EC and how that analysis has been incorporated into domestic law.
- I begin with that analysis and then apply it to the claimant's circumstances. But before that I want to say something about terminology.
- Accurate terminology to convey appropriately delineated concepts is a valuable aid to precision of legal analysis. The residence of a person who is looking for work may arise in two circumstances under EC law. It may arise when the person enters a Member State and it may arise after a period of employment in a Member State when the person is again looking for work. EC law has analysed those two circumstances in different terminology, although probably to the same practical effect. And the EEA Regulations has merged the two. The editor of the relevant provisions in Social Security Legislation: Volume II has drawn a distinction between a jobseeker (someone who comes to a country to look for work) and a workseeker (someone who has worked and is now looking for work again). Tribunals have adopted that terminology. I have chosen not to for two reasons. First, it is not the language used by the legislation. Second, it may conceal the similarity, if not unity, of the underlying legal analysis of those looking for work in a host Member State, which depends on whether the person is in the labour market.
- The relevant provisions of the EC Treaty are Articles 18 and 39. The former deals with freedom of movement and residence for EU citizens: the latter deals with freedom of movement for workers.
- Article 18 provides:
- Article 39 provides:
- The Treaty makes no express provision for jobseekers, although they are covered by Article 18 if they are Union citizens.
- The position of jobseekers was considered by the European Court of Justice in a case that arose before Article 18 was inserted into the Treaty: R v Immigration Appeal Tribunal, ex parte Antonissen (Case C-292/89) [1991] ECR 1-745. The case arose from a decision by the United Kingdom to deport Mr Antonissen. He had entered the United Kingdom in 1984 and had not found employment by the time he was sentenced for drug offences in 1987. When he was released on parole, the decision was made to deport him under an immigration rule that allowed deportation if a jobseeker had not found work within six months. The High Court referred to the European Court of Justice the question whether this rule was in accordance with EC law. The Court answered (paragraph 22) that it was not contrary to EC law to remove an unsuccessful jobseeker after six months 'unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged.' This answer reflected the wording of the question referred.
- The Court reached this conclusion in two stages. First, it decided (paragraph 15) that jobseekers had 'the right, under Article [39] and the provisions of Regulation No 1612/68 , to stay in a Member State for the purpose of seeking employment'. Second, it decided (paragraph 16) that jobseekers had to be afforded a reasonable time in which to appraise themselves, in the territory of the Member State concerned, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged.' The period of six months was only mentioned because that was enshrined in domestic law. However, the Court clearly approved the use of six months as a default position.
- It is clear from the Court's reasoning in Centre public d'aide sociale de Courcelles v Lebon (Case 316/85) [1987] ECR 2811 at paragraph 26 that a jobseeker is not a worker, at least not for any purpose other than access to employment.
- The Court in Antonissen was only concerned with a person who moved to another Member State in order to look for work. It was not concerned with, and so far as I know has never decided, the position of a person who has been a worker and who is looking for other work. However, this was considered by Mr Commissioner Mesher in R(IS) 12/98.
- It is possible that the reasoning in Antonissen could be applied by analogy to someone who has been a worker and who is looking for other work. However, this is not how Mr Mesher reasoned. He relied on the case law of the European Court of Justice that dealt with the issue whether persons who left employment retained their status as workers if they undertook training. Having analysed the Court's reasoning in those case, he decided that a person who ceased to be employed but who remained in the labour market retained worker status (paragraph 21). Although this is expressed in different language, the outcome is the same as would be achieved if the reasoning in Antonissen were extended by analogy.
- This came into force on 30 April 2006.
- The Directive does not confer a right to reside on, or recognise a right to reside for, jobseekers. However, Article 14(4)(b) provides that a person must not be expelled while looking for work:
- The position of jobseekers who have been in employment is dealt with by Article 7:
- Jobseekers who have been in employment are dealt with by Article 7(3)(b) and (c). In short, the position is this: (i) jobseekers who have worked for at least a year retain the status of worker indefinitely; (ii) jobseekers who have worked for less than a year retain the status of worker in EC law for six months only. The effect of (ii) is to extend the default position in Antonissen to jobseekers who have been in employment. It leaves Member States free to allow a longer period in domestic law.
- The six months' limit in Article 7(3)(c) and the prohibition on expulsion in Article 14(4)(b) reflect the Court's answer in Antonissen, but the Directive does not incorporate the Court's reasoning in that case, which recognises a right to stay.
- The Directive does not define 'worker'. It distinguishes between workers and those who retain the status of worker. The latter are not workers, which must be limited to those who are in employment. That is the only way to make sense of the provision in paragraph (3) that 'a Union citizen who is no longer a worker shall retain the status of worker'. That distinction is consistent with what the European Court of Justice said in Lebon.
- These Regulations in part reflect EC law and in part give additional rights of residence. They came into force on 30 April 2006.
- Broadly, the Regulations adopt the provisions of the Directive. However, they recognise the reasoning of the European Court of Justice in Antonissen by conferring a right to reside on jobseekers and this has resulted in some adjustment to the way that some of the provisions in the Directive are incorporated into domestic law.
- The right to reside as a jobseeker is conferred through regulation 14, which provides:
- 'Worker' is defined by regulation 4(1)(a):
- As with that decision, the issue arises whether the reasoning extends to a person who has been in employment and is now looking for other work. This is dealt with in regulation 6(2):
- This paragraph broadly reflects Article 7(3) of the Directive. However, it takes account of the right of residence for jobseekers, which is not recognised in the Directive, and the reasoning in Antonissen. Consequently, regulation 6(2)(b) and (c) does not follow Article 7(3)(b) and (c).
- At first glance, the three heads of paragraph (2)(b) each provide a separate basis for a right to reside. However, closer examination shows that that cannot be right. Head (ii) is the key. If it gives a person a right to reside, it overlaps with paragraph (2)(c). Why have two such similar provisions? As paragraph (2)(c) is the wider (because there is no need to register as a jobseeker), why have the narrower head (ii)? That suggests that paragraph (2)(b) should be read as if 'and' were inserted after head (i). That means that a person who has been employed for at least a year will have a right to reside if either head (ii) or (iii) is satisfied. This is supported by an analysis of how paragraph (2) has incorporated Article 7(3) of the Directive and the reasoning of the European Court of Justice in Antonissen.
- Paragraph (2)(b) applies to persons who have been in employment for at least a year. To that extent, it follows Article 7(3)(b). However, it then add as alternative requirements two features from Antonissen.: the six months' period and seeking work with a genuine chance of success. To that extent, it departs from Article 7(3)(b). However, in practice the effect is probably the same, as someone who is properly seeking work will be able to satisfy paragraph 2(b)(iii) for as long as it takes to succeed.
- Paragraph (2)(c) adopts the default period of six months accepted in Antonissen and applies it to all persons who have been in employment and are now seeking work. In contrast to Article 7(3)(c), it applies regardless of how long the person was employed and does not require the person to be registered for employment. This is more generous than the Directive requires and arguably more generous than Antonissen, as the Court there assumed that the person would be seeking work within the six months.
- Income support was established by the Social Security Act 1986. The relevant provisions have been consolidated by the Social Security Contributions and Benefits Act 1992.
- Section 124(1) of the 1992 Act provides:
- Section 135 provides:
- The Income Support (General) Regulations 1987 are made, in part, under that authority. Paragraph 17 of Schedule 7 to those Regulations prescribes that the applicable amount for a 'person from abroad' is nil.
- 'Person from abroad' is defined by regulation 21AA. This has been the governing provision since 30 April 2006. The relevant provisions of the current version provide:
- It is convenient to refer to this regulation as dealing with the right to reside. Strictly, paragraph (4) is not drafted in terms of a right to reside, but a claimant who comes within any of the subparagraphs will have a right to reside.
- The structure of this regulation is important. A claimant who is within paragraph (4) is not a person from abroad. And paragraph (4) is, for the most part, drafted in terms of the Directive, not in terms of the EEA Regulations. The result is that a person who is within one of the listed provisions in the Directive is eligible for income support and is not subject to the exclusions in paragraph (3). In those cases where domestic law is more generous in giving a right to reside than EC law, the claimant will come within paragraph (2) but subject to paragraph (3). It is, therefore, important to know not only whether a claimant has a right to reside, but also the legal basis for that right.
- The claimant is Swedish and came to the United Kingdom on 4 January 2004. He has worked for three separate periods with intermittent awards of jobseeker's allowance. The dates I have used are those provided by the claimant's representative in her submission to the appeal tribunal. They do not agree with the dates recorded by the tribunal's chairman as having been provided by a presenting officer, but they are consistent with the evidence of payslips and an employment contract.
- The claimant made his claim for income support on 2 February 2007 on the basis that he was unable to work. The claim was refused on 2 April 2007 on the ground that the claimant was a person from abroad with an applicable amount of nil. As a result, he was not entitled to income support. The issue is whether he had a right to reside between February and April 2007 sufficient to make him eligible for income support. This requires a methodical and chronological approach to his residence status at different times.
- This lasted from 10 May 2004 to 30 June 2004. The claimant was not paid, but was given expenses and accommodation. I doubt whether this work was sufficient to give him the status of a worker in EC law for two reasons: (i) he was only paid in kind; and (ii) the work he did may not have been in pursuit of an economic activity. But this does not matter, as this period does not affect any later part of the analysis.
- I do not know what happened between the end of this period of work and the start of the second period. Again, that does not matter, as it does not affect any later part of the analysis.
- This lasted from 25 July 2004 to 24 February 2005. Taking account of the duration and continuity of the work, the hours of work and the earnings, this was genuine and effective work and gave the claimant the status of a worker. So, as at the end of this period, he was a worker. As such he had a right to reside.
- This ran from March 2005 to January 2006. He retained his status as a worker under Mr Commissioner Mesher's decision in R(IS) 12/98.
- This lasted from 3 January 2006 to 3 February 2006. There may be a doubt whether this work is sufficient to give the claimant the status as a worker in EC law, because it is so short. However, Mr Commissioner Mesher accepted five weeks' work as genuine and effective in R(IS) 12/98 and I will assume (in the claimant's favour) that he was a worker during this period. (If he was not, he could not retain that status when he claimed jobseeker's allowance or, later, income support.)
- There followed a period on jobseeker's allowance from 20 March 2006 to 14 January 2007. If the claimant was a worker during his third period of work, he initially had a right to reside as a person who had retained his status as a worker under R(IS) 12/98.
- The Directive and the EEA Regulations came into force on 30 April 2006. From then on, the legal analysis has to take account of those provisions.
- Assuming that the claimant was a worker during the third period of work, did he retain that status and, with it, the right to reside under Article 7(3) of the Directive? He did not come within Article 7(3)(b), because he had not been in work (in any period or in total) for at least a year. He did retain that status under Article 7(3)(c) of the Directive, but only for six months. Accordingly, he no longer retained that status under the Directive at the time when he became unable to work and his award of jobseeker's allowance came to an end.
- Did the claimant retain his status as a worker and, with it, the right to reside under regulation 6(2) of the EEA Regulations? He did not come within subparagraph (b), because he had not been in work for at least a year. He did retain that status under subparagraph (c), but only for six months and that period had passed by the time he claimed income support.
- On this analysis, the claimant no longer had a right to reside at the moment when he claimed income support and nothing happened for him to acquire a right before his claim was refused.
- The claimant's representative has argued that he retained his status as a worker and the accompanying right to reside on the basis that he was unable to work under Article 7(3)(a) and regulation 6(2)(a). That would bring him within regulation 21AA(4)(c) of the Income Support Regulations and, although it would be unnecessary to rely on it, also within regulation 21AA(2).
- The Secretary of State's representative has argued that this is not possible. He argued that a claimant could retain worker status only on one basis under Article 7(3) or regulation 6(2) and could not move between them as circumstances changed.
- I have already decided that it is permissible to retain worker status under different grounds in succession. See CIS/4304/2007:
- However, on my analysis of the claimant's residence status, he no longer retained his worker status by the time he claimed income support. He could only regain that status by actually working. There is nothing in either the Directive or the EEA Regulations that confers a right to reside on someone who becomes unable to work unless immediately before that the person was either a worker or retained worker status. Worker status can be gained and retained. There is no power for it to be revived other than by working. To that extent, I accept the argument for the Secretary of State.
- If contrary to my analysis the claimant had a right to reside as a jobseeker throughout the time he was claiming jobseeker's allowance, this would not give him a right to reside for his claim for income support. This is so for three reasons. First, he was no longer seeking work. Second, even if he were, he would be excluded from income support as a jobseeker: see my decision in CIS/0184/2008. Third, there is no provision for a person to retain status as a jobseeker while unable to work.
- The Secretary of State was, therefore, correct to decide that the claimant did not have a right to reside and was a person from abroad.
- I have not so far mentioned the tribunal's decision. It is sufficient to say that the tribunal decided the issue with too great a generality of reasoning and without sufficient attention to the precise terms on which a right to reside arises in the context of the facts of the case. The chairman's reasoning, as summarised in both his decision notice and his full statement of the tribunal's decision, was that the claimant was a jobseeker and a worker and continued to retain worker status and a right to reside. As my analysis has shown, it is not that simple.
- I set aside the tribunal's decision because it was wrong in law and substitute the decision it should have given, which is to confirm the refusal of the claim.
I SET ASIDE the decision of the Sutton appeal tribunal, held on 18 September 2007 under reference 154/07/02425, because it is erroneous in point of law.
I give the decision that the appeal tribunal should have given, without making fresh or further findings of fact.
My DECISION is that, on his claim for income support that was made on 2 February 2007 and refused on 2 April 2007, the claimant was a person from abroad with an applicable amount of nil, who was therefore not entitled to income support.
Terminology
EC law
EC Treaty
'CITIZENSHIP OF THE UNION
Article 18
1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.
2. If action by the Community should prove necessary to attain this objective and this Treaty has not provided the necessary powers, the Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. The Council shall act in accordance with the procedure referred to in Article 251.
3. Paragraph 2 shall not apply to provisions on passports, identity cards, residence permits or any other such document or to provisions on social security or social protection.'
'WORKERS
Article 39
1. Freedom of movement for workers shall be secured within the Community.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.
4. The provisions of this article shall not apply to employment in the public service.'
Case law of the European Court of Justice
Directive 2004/38/EC
'4. an expulsion measure may in no case be adopted against Union citizens or their family members if:
(b) the Union citizens entered the territory of the host Member State in order to seek employment. In this case, the Union citizens and their family members may not be expelled for as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.'
This provision reflects the precise terms of the answer given by the European Court of Justice to the question referred in Antonissen.
'1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
(a) are workers or self-employed persons in the host member State;
3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:
(a) he/she is temporarily unable to work as a result of an illness or accident;
(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;
(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;
(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.'
Domestic law
Immigration (European Economic Area) Regulations 2006
'(1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.'
'Qualified person' is defined by regulation 6:
'(1) In these Regulations, "qualified person" means a person who is an EEA national and in the United Kingdom as-
(a) a jobseeker;
(b) a worker; '
(a) '"worker" means a worker within the meaning of Article 39 of the Treaty establishing the European Community'.
In view of Lebon, that definition would not include a jobseeker. Hence the separate category of jobseeker. This is defined by regulation 6(4):
'(4) For the purpose of paragraph (1)(a), "jobseeker" means a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged.'
That definition reflects Antonissen.
'(2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if-
(a) he is temporarily unable to work as the result of an illness or accident;
(b) he is in duly recorded involuntary unemployment after having been employed in the United Kingdom, provided that he has registered as a jobseeker with the relevant office and-
(i) he was employed for one year or more before becoming unemployed;
(ii) he has been unemployed for no more than six months; or
(iii) he can provide evidence that he is seeking employment in the United Kingdom and has a genuine chance of being engaged;
(c) he is involuntarily unemployed for no more than six months; or
(d) he has voluntarily ceased working and embarked on vocational training that is related to his previous employment.'
Income support legislation
'(1) A person in Great Britain is entitled to income support if-
(b) he has no income or his income does not exceed the applicable amount.'
'(1) The applicable amount, in relation to any income-related benefit, shall be such amount or the aggregate of such amounts as may be prescribed in relation to that benefit.
(2) The power to prescribe applicable amounts conferred by subsection (1) above includes power to prescribe nil as an applicable amount.'
'Special cases: supplemental persons from abroad
21AA.(1) "Person from abroad" means, subject to the following provisions of this regulation, a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.
(2) No claimant shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless he has a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland other than a right to reside which falls within paragraph (3).
(3) A right to reside falls within this paragraph if it is one which exists by virtue of, or in accordance with, one or more of the following
(b) regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the claimant is
(i) a jobseeker for the purpose of the definition of "qualified person" in regulation 6(1) of those Regulations, or
(d) Article 39 of the Treaty establishing the European Community (in a case where the claimant is a person seeking work in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland).
(4) A claimant is not a person from abroad if he is
(a) a worker for the purposes of Council Directive No. 2004/38/EC;
(c) a person who retains a status referred to in sub-paragraph (a) or (b) pursuant to Article 7(3) of that Directive; '
Analysis
First period of work
Second period of work
The first award of jobseeker's allowance
Third period of work
The second award of jobseeker's allowance
The claim for income support
'34. The first question is: can she move from one head of regulation 6(2) to another? My answer is: yes. This is the answer suggested by the context and there is nothing to indicate otherwise. The context is the retention of worker status for those who have not abandoned the labour market, but who are either unable to work or to find work or are training to improve their job prospects. The sequence in which those events occur is purely arbitrary and I can see no policy factor that limits the beneficial effect of regulation 6(2) or Article 7(3) to the first of the eventualities that happens to occur.'
To that extent, I accept the argument for the claimant.
The tribunal's decision
Disposal
| Signed on original on 24 July 2008 |
Edward Jacobs Commissioner |