Upper Tribunal (Administrative Appeals Chamber)

[2009] UKUT 16 (AAC) (22 January 2009)

 
Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the Nottingham appeal tribunal (held on 21 February 2008 under reference 045/07/01170) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.

The decision is: the claimant is entitled to the benefit of regulation 2(3) of the Accession (Immigration and Worker Authorisation) Regulations 2006 and at the time of her claim for a jobseeker's allowance had a right to reside for the purposes of regulation 85A(2) of the Jobseeker's Allowance Regulations 1996 under regulations 6(1)(a) and 14 of the Immigration (European Economic Area) Regulations 2006. The Secretary of State must now investigate and determine whether the claimant satisfied the other conditions of entitlement for an award of a jobseeker's allowance.

Reasons for Decision

A. The facts

1. Bulgaria joined the EU on 1 January 2007.
2. The claimant is Bulgarian. She worked in the United Kingdom from 1 February 2004 or perhaps 26 March 2003 (see page 51); it does not matter which. She left the United Kingdom for Bulgaria on 8 July 2006, intending to stay for two weeks on holiday. She became ill while there and did not return until 8 January 2007. Her employer (a care home) was informed regularly of her progress and kept her employment open for her. On 3 January 2007, on medical advice, the claimant informed her employer that she would not be returning to work in a care home. In other words, she resigned on the ground that she was medically unable to perform the duties of that employment.

B. The issue

3. The issue in this case is whether a person who has a contract of employment with an employer but who is on sick leave is 'working' for the purpose of regulation 2(3) of the Accession (Immigration and Worker Authorisation) Regulations 2006:

'(3) A national of Bulgaria … is not an accession State national subject to worker authorisation if he was legally working in the United Kingdom on 31st December 2006 and had been legally working in the United Kingdom without interruption throughout the period of 12 months ending on that date.'

Regulation 1(2)(t) provides:

'(t) "worker" means a worker within the meaning of Article 39 of the Treaty establishing the Economic Community, and "work" and "working" shall be construed accordingly.'

C. The tribunal's decision

4. The tribunal decided that the claimant was not 'working' on 31 December 2006, despite the fact that she remained employed. The chairman, in his reasons, contrasted 'working' with 'employed under a contract of employment' and referred to social security legislation in which the distinction is drawn.
5. The tribunal was wrong to interpret the 2006 Regulations by reference to the wording of social security legislation. For a start, the tribunal failed to consider (or at least to refer to) the definition in regulation 1(2)(t). That was an error in point of law.
6. Moreover, words have to be interpreted in their context rather than by reference to how concepts are expressed in different legislation. The argument might have some merit in the case of social security legislation, in which the same pool of lawyers would be responsible for drafting and in which consistent use of terminology could be expected. But the 2006 Regulations were immigration regulations drafted by lawyers of the Home Office, not those of the Department for Work and Pensions. Taking account of this consideration was another error in point of law.
7. The chairman accepted that some 'flexibility' was required, so that a person would still be working while on holiday or indisposed for a short period of time. I accept that a person may be 'working' while not actually performing the duties of the employment. However, once that is accepted, it is difficult to draw a line between an absence that is consistent with working and an absence that is not, when the employment continues to subsist.

D. The Secretary of State's initial observations

8. The Secretary of State's representative did not support the appeal. He put three arguments.
9. The first argument referred to Article 7(3)(a) of Directive 2004/38/EC:

'(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; …'

The representative then argued that a person cannot be both working and unable to work at the same time. Hence as the claimant was unable to work, she could not be working.

10. I reject this argument. The argument assumes that a person who is unable to work can only a person protected by Article 7(3)(a). However, that provision only applies once the person has ceased to be a worker. It is possible that a person who remains employed is still a worker and does not need to rely on Article 7(3). If the Secretary of State's argument is correct, it means that a person ceases to be a worker even if the inability to work lasts for only a day. I do not accept that a person who has an upset stomach and is unable to work for a single day ceases to be worker under EC law. Nor do I accept that a person who is ill for a week with flu ceases to be a worker and has to rely on Article 7(3).
11. I note that Article 7(1) of Directive 68/360, on which Article 7(3) of 2004/38 is based, read:

'1. A valid residence permit may not be withdrawn from a worker solely on the grounds 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.'

That provision referred to employment rather than work or worker. This is, perhaps, some indication that, in Directive 2004/38, the continuing existence of the employment relationship may at least be a factor relevant to whether the person remains a worker.

12. The second argument was that the 2006 Regulations refer to 'working' rather than to 'worker'. I reject this argument. It overlooks the definition in regulation 1(2)(t), which defines 'working' in accordance with 'worker'.
13. The third argument was that the claimant cannot have been worker before Bulgaria joined the EU, because worker is a European concept that cannot apply to a national of a State before accession. I reject this argument. As a general proposition, it is correct. However, it cannot be applied in the context of the 2006 Regulations. They make transitional arrangements and refer in part to events prior to accession. If the Secretary of State's argument is correct, it would be impossible for anyone to satisfy regulation 2(3). The definition must be interpreted to refer to the factual situation that would confer the status of worker on the claimant had she been exercising her freedom of movement as a citizen of the European Union.

E. My first direction

14. Having considered the Secretary of State's observations, I issued a direction raising these issues:

'7. I note that the European Court of Justice has 'consistently held that the concept of worker has a Community meaning and must not be interpreted in a restrictive fashion': (Raulin v Minister van Onderwijs en Wetenschappen (Case C-357/89) [1992] I-1027 at paragraph 10.

'8. I also note that the European Court of Justice has accepted that persons may remain workers when they have left employment for (re)training: Raulin and Lair v Universität Hannover (Case 39/86) [1988] ECR 3161. That discussion has been in the context of what is now Article 39 and it shows no signs that it was unique to the other particular provisions before the Court. In Lair, the Court said:

'36. 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.'

See also paragraph 31 and the decision of Mr Commissioner Mesher in R(IS) 12/98 (where the claimant was looking for work). R v Immigration Appeal Tribunal, ex parte Antonissen (Case C-292/89) [1991] ECR I-745 may also be relevant.

'9. If worker status can survive the loss of an employment relationship, is it not rather strange if it can be lost during such a relationship? Is that consistent?

'10. I notice that the Secretary of State has conceded that a maternity period does not interrupt self-employment (CIS/1042/2008) or prevent a person remaining a worker (CIS/0185/2008). Is this case not comparable?

F. The Secretary of State's response

15. In response, the Secretary of State's representative repeated that the claimant could not be a worker until Bulgaria joined the EU. I have explained why I have rejected that argument.
16. As to R(IS) 12/98, CIS/1042/2008 and CIS/0185/2008, the representative refers to the dates when the relevant member States joined the EU. This is linked to his previous point about the accession of Bulgaria. For the reasons I have already given, I do not accept that this is relevant.
17. Finally, the representative referred to two decisions on interruption in employment – CIS/4227/1998 and CIS/2921/2000. I do not consider that those decisions are relevant. They concern different language used in a different legislative context.

G. Analysis

18. The issue is whether the claimant was working while she was ill. That means whether she was a worker for the purposes of Article 39. The European Court of Justice defined a worker in Lawrie-Blum v Land Baden-Württenberg (Case 66/85) [1986] ECR 2121:

'17. … The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.'

That definition was for the purposes of what is now Article 39 and the free movement of 'workers'. In other words, the Court equated workers with persons in an employment relationship.

19. The Court set out the features of such a relationship: a period of time, direction and remuneration. However, those features cannot be applied without regard to the general nature of employment. A worker does not have to be working every hour of every day. The relationship involves work for particular hours of certain days. Other days are free from work and therefore from direction. They may also be free of remuneration. For example: the person may be entitled to holiday leave without pay, but would surely not cease to be a worker while on leave.
20. I do not, therefore, regard it as necessarily fatal to the claimant that she was, while ill in Bulgaria, not carrying out any duties. Nor is it necessarily fatal, if it was the case, that she was not paid. (Her P45 at page 33 suggests that she was not paid during her absence, but the Secretary of State has not taken any point on that.)
21. The issue for me is whether the claimant remained a worker while she was in Bulgaria. I have to decide whether she satisfied the European concept of a worker and not apply the criteria set out in Lawrie-Blum to particular days in isolation from the overall course of the relationship. It is correct that she was not undertaking her duties and, perhaps, not being paid, while she was away. However, she remained in regular contact with her employer, who was prepared to keep her position pending her recovery and return. The employment relationship only came to an end at the claimant's request. In those circumstances, I find that the claimant remained a worker while in Bulgaria.
22. In so far as it may be a matter of degree whether the claimant remained a worker, the length of her absence is significant. However, I would not consider her period of absence sufficient to prevent her being a worker. It was long, but not unduly so for someone who required hospital treatment for depression. It is relevant that she continued to wish to return to work, until she was advised against this by her doctors. Why else would she keep her employer informed of her progress? It is also relevant that the employer was prepared to await her return.
23. I find confirmation for my conclusion in the decisions on maternity. If this does not prevent a person remaining a self-employer person or a worker, why should a period of illness of similar length?

H. My final direction

24. Having come to that conclusion, I issued another direction stating that I rejected the Secretary of State's arguments and asking whether it was accepted, given my interpretation, that the claimant had a right to reside as a jobseeker under regulations 6(1)(a) and 14 of the Immigration (European Economic Area) Regulations 2006:

'6 "Qualified person"

(1) In these Regulations, "qualified person" means a person who is an EEA national and in the United Kingdom as-

(a) a jobseeker; …'

(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.'

'14 Extended right of residence

(1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.'

25. In reply, the Secretary of State's representative has conceded this point.

I. Disposal

26. I allow the appeal for the reasons I have given and decide that the claimant was entitled to the benefit of regulation 2(3) of the Accession (Immigration and Worker Authorisation) Regulations 2006. On that basis, she had a right to reside for the purposes of regulation 85A(2) of the Jobseeker's Allowance Regulations 1996:

'Special cases: supplemental - persons not in Great Britain

85A.—(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 person 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).'

27. The Secretary of State must now process the claim for a jobseeker's allowance in accordance with my decision.

Signed on original on 22 January 2009

Edward Jacobs Upper Tribunal Judge