IN THE UPPER TRIBUNAL                              Case No  CIS/184/2008

ADMINISTRATIVE APPEALS CHAMBER

 

Before MR JUSTICE WALKER CP, JUDGE PL HOWELL QC, JUDGE C G WARD

 

Attendances:           

 

For the Appellant:       Mr Denis Edwards of Counsel, instructed by the Solicitor to the Department of Work and Pensions

 

For the Respondent:   Mr Simon Cox of Counsel, instructed by SA Law Chambers

 

Decision:  The appeal is dismissed.  The decision of the appeal tribunal sitting at Fox Court, London on 31 January 2007 under reference 242/06/04282 did not involve the making of any material error of law.

 

REASONS OF THE MAJORITY FOR DECISION

 

Mr Justice Walker CP and Judge C G Ward:

 

1. This case concerns what steps a national of an EU Member State must take in order to preserve her status as a worker for the purposes of Article 7(3)(c) of the Citizenship Directive 2004/38/EC (“the Directive”) when she has become involuntarily employed.

 

2.  The Secretary of State appeals, with permission of a District Chairman, against the decision of the appeal tribunal allowing the claimant’s original appeal.  The present appeal previously came before a  Social Security Commissioner but those proceedings were set aside, as the claimant had moved and did not have notice of the proceedings.  Pursuant to the Tribunals, Courts and Enforcement Act 2007 the functions of the Social Security Commissioners were transferred to the Administrative Appeals Chamber of the Upper Tribunal on 3 November 2008.  On 5 March 2009 the appeal was directed to be heard by a three judge panel.  The hearing took place before us on 15 May 2009. Following the oral hearing, the Secretary of State was given the opportunity to make a further written submission and the claimant to do likewise in reply.

 

3. We gratefully adopt the brief chronology below from the table set out by the appeal tribunal indicating the facts it found.

 

1975	Jun 16	Claimant’s date of birth
2003	Sep 10	Birth of child
2005	Sep 2	Arrives GB as a French national with child to live and work; lives with relative
	Nov	Starts job with NTL, working 16 hrs pw Saturdays & Sundays on internet sales, friend caring for child those days
2006	May 31	Redundancy of NTL job
	Jun	Looks for half-time work; moves to supportive friend’s accommodation; in receipt of child benefit; no other income –or capital
	Jun 20	Claims income support (claim form lost)
	?	Habitual Residence test interview; states seeking work (documents lost)
	Aug 28	Secretary of State’s decision: “person from abroad”
	Sep 22	Appeal lodged

 

4. The crucial event for the purposes of this appeal is the Habitual Residence test interview. As indicated in the chronology above, relevant documents have been lost. At the hearing before the tribunal the precise date of the interview was unclear. Evidence adduced by the claimant at the hearing before us was confused. There is, however, no dispute that it occurred at some stage before the decision of 28 August 2006. The Secretary of State made factual concessions before the appeal tribunal that (1) the claimant was seeking work and that (2) she stated on the Habitual Residence Test documents that she was seeking work.  As is now clear, what was involved was that the sole relevant part of the Habitual Residence Test form HRT2(R), which was Part 11, was completed by ticking the box “Yes” in response to the question “Are you looking for work in the UK?”  There was no evidence before the tribunal as to the purpose of asking this question on Form HRT2(R).

 

5. The question of law arising on this appeal is whether the tribunal was right to hold that on these facts the claimant had taken sufficient steps to preserve her status as a worker for the purposes of Article 7(3)(c) of the Directive. The Secretary of State had previously made a legal concession  in CIS/3315/2005 (see below) that the facts described at (1) and (2) above amounted to “duly recorded” involuntary unemployment for the purposes of the Immigration (European Economic Area) Regulations 2000 SI 2000/2326.  The words “duly recorded” in those regulations were evidently regarded by the draftsman as equivalent to “duly confirmed” in the European legislation which preceded the Directive.  The Directive itself now uses “duly recorded” and the Secretary of State continues to accept that this part of the test is met by facts (1) and (2). However – although this was not examined in any detail by the tribunal - Article 7(3)(c) contains an additional requirement which was not found in the predecessor legislation.  Article 7 of the Directive, so far as relevant, provides that:

         

“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;

(b)  – (d) [Not material]

 

2. [Not material]

 

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 the 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.”

         

6. The question in the present case was whether the claimant satisfied sub-paragraph (c). Before us the Secretary of State did not resile from the concessions below. The only respect in which it was said that the claimant failed to satisfy Article 7(3)(c) was that she allegedly had not “registered as a job-seeker with the relevant employment office”. She replied that she had done so by stating on the Habitual Residence Test documents that she was seeking work, those documents being provided to her by, and handed in by her to, her local jobcentre.  There was no dispute that the jobcentre was “the relevant employment office.  As the oral hearing before the Upper Tribunal developed, the Secretary of State’s contention was that it was not possible for a claimant to satisfy sub-paragraph (c)  unless the claimant had successfully claimed jobseeker’s allowance or (by the end of submissions) national insurance credits. By failing to apply such a principle to the claimant, who had claimed neither of these, but rather, income support, the tribunal had, it was said, erred in law.

 

7. We will return below to the detail of the legislation. The reason why it matters whether the claimant met Article 7(3)(c) may be put briefly thus. Income support involves, among other matters, a comparison of a person’s “applicable amount” with their income.  The “applicable amount” of a “person from abroad” is nil: see Schedule 7, paragraph 17 of the Income Support (General) Regulations 1987 (“the 1987 Regulations”).  Who is a “person from abroad” is determined by regulation 21AA.  Under paragraph (1) a “person from abroad” is (broadly) a person who is not habitually resident in the UK, Channel Islands, Isle of Man or the Republic of Ireland. One cannot be habitually resident for this purpose, unless one has a right to reside (paragraph (2)), which is not an excluded right to reside by virtue of falling within the list set out in paragraph (3).  Paragraph (4) lists categories of people who are not a “person from abroad”, the first three of which are:

 

          “(a) a worker for the purposes of Council Directive No.2004/38/EC;

          (b) a self-employed person for the purposes of that Directive;

(c) a person who retains a status referred to in sub-paragraph (a)

or (b) pursuant to Article 7(3) of that Directive…”.

 

8. It follows that a person who falls within regulation 21AA(4) will not be a “person from abroad” and the remainder of the regulation becomes irrelevant.  One should add that there is no suggestion that the claimant on the facts of the present case can assert a right under paragraph (2) if she fails under paragraph (4).

 

9. Regulation 21AA(4)(c) refers straight to the Directive.  Although the Directive was implemented in the United Kingdom by the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”), it is with the Directive that we must be concerned.  In any event, though, the wording of the equivalent provision, regulation 6 of the 2006 Regulations, is not such that it sheds indirect light on the meaning of Article 7(3)(c) of the Directive, as it is no more specific as regards the point with which we are concerned than is the Directive itself.

 

The construction of the Directive

 

10. In approaching the construction of the Directive, we bear in mind that it is not specifically a social security measure. It is possible to devise various scenarios in which a person might want or need to establish his or her retained status as a worker, without any claim to social security benefits being involved. An example would be a person who wished to rely on the Directive in order to establish a right of permanent residence under Article 16.

 

11. There is no definition of the expression ”job-seeker” which applies to its use within Article 7(3). It is, however, common ground that, in this European legislation, the expression ”job-seeker” is not intended to bear the specific meaning of the word “jobseeker” as used within the United Kingdom in (or derived from) the legislation establishing jobseeker’s allowance.  The presence of the hyphen makes this clear, as does the French text: “s'est fait enregistré en qualité de demandeur d'emploi auprès du service de l'emploi compétent “. The Directive is concerned with people who have registered as looking for a job rather than with “jobseekers” as a term of art in the UK sense.

 

12. We were referred to the observations of Mr Commissioner Jacobs in CIS/3505/2007, at para.24 that:

 

“The requirement for registration is not a European concept with an autonomous meaning.  What it requires is that the Union citizen register in accordance with the particular arrangements in the host State.”

 

Consistently with these observations, the argument for the Secretary of State was that Member States may, if they choose, determine the mechanisms by which an individual may be “registered as a job-seeker” for the purposes of Article 7(3)(c). For present purposes we are prepared to assume, without deciding, that this argument is correct.  

 

13. The Oxford English Dictionary (Second Edition, 1989) gives, among the meanings of “register”, when used as a verb:

 

“[2] d.intr. (for refl.) To enter oneself or have one’s name recorded in a list of people (freq. as a legal requirement), as being of a specified category ….”

 

14. We are content for present purposes to adopt that as summarising how in our judgment the word “registered” in Article 7(3)(c) of the Directive is being used.  Filling in a form by ticking the box “Yes” in response to the question “Are you looking for work in the UK?”, and handing that form in at the jobcentre, appears to us on the face of it to be entering oneself as being of the category of those looking for work in the UK.  We shall turn shortly to whether the Secretary of State’s contention that the UK had determined the mechanisms by which an individual may be “registered as a job-seeker” for the purposes of Article 7(3)(c) in a way inconsistent with that approach, which was the issue on which his argument principally focussed.

 

15. What then has changed by reason of the Directive? Previously it sufficed, in broad terms, that the individual in question was in duly recorded (or, which is treated as the same thing, confirmed) involuntary unemployment. What is added by the Directive is a requirement that the individual in question has taken the step of registering, in the sense described above, with the relevant employment office as a person looking for work. On the assumption we have described above, it is open to member states to define specific mechanisms as being the only ways in which this can be done.

 

16. Accordingly we turn to examine the arguments advanced by the Secretary of State that the UK has defined a successful claim to jobseeker’s allowance or national insurance credits as the only ways in which this can be done.

 

No express provision of law limiting to claims for jobseeker’s allowance or national insurance credits

 

17. It is common ground that there is no measure of national law, whether in the 2006 Regulations or elsewhere, which expressly requires a claimant who wishes to assert he or she has retained “worker” status under Article 7(3)(c) to make a claim for jobseeker’s allowance or national insurance credits. Nor is there any express requirement that such a claim must be successful.

 

Is there such a limitation as a matter of implication or as the result of administrative practice?

 

18. We start by considering whether the UK provisions concerning jobseeker’s allowance contain any such limitation. The ground rules for obtaining jobseeker’s allowance are set out in section 1(2) of the Jobseekers Act 1995 (“the 1995 Act”), which, as in force at the date of claim, stated that:

 

“Subject to the provisions of this Act, a claimant is entitled to a jobseeker's allowance if he—

(a) is available for employment;

(b) has entered into a jobseeker's agreement which remains in force;

(c) is actively seeking employment;

(d) satisfies the conditions set out in section 2;

(e) is not engaged in remunerative work;

(f) is capable of work;

(g) is not receiving relevant education;

(h) is under pensionable age; and

(i) is in Great Britain.”

 

19. Most of the conditions in section 1(2) have further detail underpinning them, either in the 1995 Act itself or in the Jobseeker’s Allowance Regulations 1996 (“the 1996 Regulations”). We need only refer here to conditions (a) and (d).  Condition (a), as interpreted by regulation 6 of the 1996 Regulations, means that unless one falls within certain protected groups, one has to be willing and able to take up employment for at least 40 hours per week.  Condition (d) is concerned with the contribution conditions; however, it is also possible to qualify on financial grounds without meeting these and so we need say no more about them.

 

20. Jobseeker’s allowance is likewise subject to a “right to reside” test similar - but not identical - to that imposed by regulation 21AA of the 1987 Regulations, which is contained in regulation 85A of the 1996 Regulations. The significant difference is that those who have rights under regulation 14 of the 2006 Regulations as a jobseeker (in the sense in which the term is used, discussed further in paragraph 22 below) – or the family member of a jobseeker – fail the right to reside under regulation 21AA of the 1987 Regulations for income support purposes but pass it under regulation 85A of the 1996 Regulations for jobseeker’s allowance purposes.  Regulation 85A was, like regulation 21AA of the 1987 Regulations, introduced by the Social Security (Persons from Abroad) Regulations 2006 (S.I. 2006/1026) and aims to ensure that claimants who are jobseekers under regulation 14 of the 2006 Regulations should receive jobseeker’s allowance rather than income support.

 

21. However, it does not go further.  As Mr Cox put it:

 

“[Regulation 85A] defines the JSA consequences flowing from residence status: it does not stipulate any residence consequences of claiming JSA.”

We do not see how rules for determining which of two benefits a person should apply for in the event that they wish to do so can be relied on generally as providing a mechanism for everyone, irrespective of whether they wish to claim benefit, to demonstrate their eligibility for continuing rights of residence as a worker.

 

22. In any event, this applies only to people referred to in regulation 21AA(3)(b)(i) of the 1987 Regulations (plus, under sub-paragraph (ii), members of their families), namely “a jobseeker for the purpose of the definition of “qualified person” in regulation 6(1) of [the 2006] Regulations.”  That definition, set out in regulation 6(4), is a specific one (the emphasis is ours):

 

“For the purpose of paragraph 1(a) [sc. of regulation 6], “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.”

There is in our judgment no link either in the Directive or the 2006 Regulations between the use of the word  ”jobseeker” in regulation 6(4) of the 2006 Regulations for the purposes of regulation 6(1) and how it is used in regulation 6(2) (which is where the Article 7(3)(c) test is carried into domestic legislation.)  The legislative expression of the policy that EU nationals seeking work should claim jobseeker’s allowance rather than income support is confined to “jobseekers” within the regulation 6(4) definition.  Someone like the claimant, who has to register as a job-seeker under Article 7(3)(c) in order to retain her status as a worker, is not thereby in the same legal position.

 

23. Nor do we regard successful registration for jobseeker’s allowance, of itself and in all circumstances, to be likely to be legally capable of being a valid condition of establishing a right to reside under Article 7(3)(c).  There are those who, if they were to make a claim for jobseeker’s allowance, would be destined to be unsuccessful yet who would appear likely to need to have an opportunity to “register as a jobseeker with the relevant employment office” in order to establish their continuing right to reside.  Examples would include (a)  those who are seeking work that, while effective and genuine and not on such a small scale as to be purely marginal and ancillary (cf. 53/81 Levin [1982] ECR 1035), is for less than the number of hours that would be necessary in order to obtain jobseeker’s allowance and (b) people with inadequate contribution records who have, or whose partner has, substantial capital resources and who are concerned with preserving their continuity of rights of residence in the UK  under the Directive rather than with claiming benefit.  In the present case, the Secretary of State has conceded that the claimant was looking for work of a sufficient extent to entitle her to jobseeker’s allowance if she had claimed it and so we are not required to decide on other hypothetical circumstances, which must await cases in which they directly arise for a definitive view. However, the inability of the Secretary of State to explain how the claimed exclusive system for registration as a jobseeker would operate in such cases lends further weight to the notion that the system of reliance on jobseeker’s allowance claims is not all-encompassing.

 

24. Mr Cox urges us to conclude that regulation 21AA(4)(c) of the 1987 regulations, read with section 124(1)(f) of the Social Security Contributions and Benefits Act 1992, is inconsistent with the Secretary of State’s position.  Section 124 makes it a condition of entitlement to income support that a person is not entitled to a jobseeker’s allowance.  If it is necessary to claim jobseeker’s allowance in order to establish the right to reside, then it is said that that renders regulation 21AA(4)(c) futile.  We do not agree.  There is no suggestion that a claim for jobseeker’s allowance is a necessary precondition to relying on Articles 7(3)(a) or (d) (as opposed to (b) or (c)) of the Directive, thus regulation 21AA(4)(c) would not be deprived of effect if the Secretary of State’s position were correct.  Further, it is important to appreciate that regulation 21AA(4) is aimed at ensuring that, come what may, the United Kingdom is not in breach of its obligations under EU law or international or other commitments.  While we are not with Mr Cox on this point, we do not consider that he needs to establish it in order to make his case.

 

25. We turn to the system of registration for national insurance credits. Here too we find no basis for concluding that this system is intended to form part of an exclusive mechanism for everyone to demonstrate their eligibility for continuing rights of residence as a worker.  National insurance credits are awarded under the Social Security (Credits) Regulations 1975.  Regulation 8A (1) at the material time provided that:

 

“(1) For the purposes of entitlement to any benefit by virtue of a person's earnings or contributions, he shall be entitled to be credited with earnings equal to the lower earnings limit then in force, in respect of each week to which this regulation applies.

 

(2) [Subject to an immaterial proviso] this regulation applies to a week which, in relation to the person concerned, is—

(a) a week for the whole of which he was paid a jobseeker's allowance; or

(b) a week for the whole of which he satisfied or was treated as having satisfied the conditions set out in paragraphs (a), (c) and (e) to (h) of section 1(2) of the Jobseekers Act 1995 (conditions for entitlement to a jobseeker's allowance) and in respect of which he has satisfied the further condition specified in paragraph (3); or

[(c) and (d) not material]

 

(3) The further condition referred to in paragraph (2)(b) is that the person concerned—

(a) furnished to the Secretary of State notice in writing of the grounds on which he claims to be entitled to be credited with earnings—

(i) on the first day of the period for which he claims to be so entitled in which the week in question fell; or

(ii) within such further time as may be reasonable in the circumstances of the case; and

(b) has provided any evidence required by the Secretary of State that the conditions referred to in paragraph (2)(b) are satisfied.”

 

 

26. Regulation 8A(2) thus replicates the majority of the jobseeker’s allowance conditions, with the exception of the requirement for a test of contributions or income to be satisfied and the requirement for a jobseeker’s agreement to be entered into  (cf. section 1(2)(b) of the Jobseekers Act 1995.)  This still makes it unsuitable to provide a mechanism for the person whose work meets the Levin tests but is less in extent than the jobseeker’s allowance requires.  Further, the intrinsic nature of national insurance credits makes them ill-suited to the purpose claimed for them as part of an exclusive structure for monitoring whether claimants were maintaining a sufficient link with the labour market to retain their worker status under Article 7(3)(c) of the Directive.  They are basically concerned with making up a person’s contribution record after the end of the tax year - see regulation 3 of the 1975 Regulations and the decisions in CIB/3327/2004 and CIB/1602/2006 - and can be claimed after the event i.e. “within such further time as may be reasonable in the circumstances of the case” (reg.8A(3)(b)).  The Secretary of State only put forward the notion that credits might have a part in the structure for which he was arguing belatedly and under the impact of questioning from the Upper Tribunal: we think his original reticence in this regard was well-founded.

 

27. Consequently, we are unable to derive any implication from those legal mechanisms which do exist, namely the provisions relating to jobseeker’s allowance and to national insurance credits, that they together provide an exclusive mechanism for establishing ongoing status as a worker under Article 7(3)(c).

 

28. Nor do we view the evidence which has been put before us as establishing that such a rule existed at the time of the claimant’s claim even as a matter of administrative practice.  We have been shown extracts from the Department’s “Decision Makers Guide” and “EU Rights of Residence – Habitual Residence Test Guide” and in our judgment even these internal documents fail to evidence the existence of such a practice.  Nor is there any evidence that such a practice had been communicated either to the claimant or to the public generally.  Even if we were to assume, in favour of the Secretary of State, that despite authorities such as Case C-313/99 Milligan and others [2002] ECR I-5719, an administrative practice was capable of sufficing as a means of providing a defined and exclusive mechanism for preserving worker status under Article 7(3)(c), there was no such practice at the time of the claimant’s claim.

 

Our conclusion and the contrasting view of Upper Tribunal Judge Howell

 

29. We conclude that the Secretary of State has not shown that the UK has defined specific mechanisms as being the only ways in which an individual can, for the purposes of Article 7(3)(c) “register as a job-seeker with the relevant employment office”. That being so, the tribunal was entitled to hold that the Secretary of State’s factual concessions meant that the claimant succeeded in her appeal. In summary:

.

1. What the Directive contemplates is that a claimant has done what is needed in order to have his or her name recorded as looking for work by the relevant employment office
2. Whether or not this has been done is a question of fact
3. There is no rule of law that such registration can be effected only by way of registering for jobseeker’s allowance or national insurance credits, less still only by successfully claiming one or other of those benefits
4. Nor was there at the material time an administrative practice to that effect (even assuming – without deciding - that to be a lawful way of implementing the Directive)
5. Successfully claiming jobseeker’s allowance or national insurance credits will no doubt provide sufficient evidence  to satisfy Article 7(3)(c); but
6. Those who are able to show not merely that they were seeking work, but that they had done what is needed in order to have their name recorded as looking for work by the relevant employment office – will meet the registration requirement of Article 7(3)(c).
7. It being conceded that the claimant had stated on the Habitual Residence Test documents that she was seeking work and that the extent of the work being sought was sufficient, it follows that she met the relevant test.

 

30. We are conscious that in dismissing the appeal we differ from the view of Upper Tribunal Judge Howell. His conclusion – which appears to us to be rather different from the way that Mr Edwards put the matter orally on behalf of the Secretary of State – is that the words “has registered as a jobseeker with the relevant employment office” require “a procedure to be gone through with the employment authorities in the host member state to verify and establish such people’s genuine continuing status as a jobseeker and hence connection with the labour market in that state, as distinct from merely recording the fact that they were unemployed and had said they did not wish to be.”

 

31. That conclusion appears to us necessarily to proceed on the basis that, contrary to the view expressed by Mr Commissioner Jacobs in CIS/3505/2007, at para.24 (see above), the requirement for registration is a European concept with an autonomous meaning, imposing certain requirements before something can amount to registration. For our part we readily accept that by using the word “registered” Article 7(3)(c) is contemplating a European concept of “registration” which, to the limited extent of creating a baseline, does have an autonomous meaning. 

 

32. However, it will be apparent from what we have said earlier that the baseline we identify does not involve as much as the procedure that Upper Tribunal Judge Howell describes. We did not understand the Secretary of State to be contending that European law required such a procedure: indeed, he asked us to follow the approach of Mr Commissioner Jacobs.  The point on which we differ from Upper Tribunal Judge Howell was not the subject of express oral argument. Nevertheless we shall set out briefly our reasons for concluding that European law requires no such procedure. 

 

33. Article 7(3)(c) is broadly derived from previous EU law, with clarifications.  In relation to that previous EU law, Mr Commissioner Rowland (as he then was) noted in the joined cases of CH/3314/2005 and CIS/3315/2005, dealing with the then current version of the rules relating to “persons from abroad” and with the Immigration (European Economic Area) Regulations 2000, the predecessors to the 2006 Regulations:

 

“10.    It is plain from the recital to the 2000 Regulations that they were made to implement the law of the European Communities.  The term “worker” must therefore be understood in the context of the law of the European Communities.  So must the term “voluntarily unemployed” in regulation 5(2) of the 2000 Regulations[1], which is clearly derived from Article 7(1) of Council Directive 68/360/EEC, which in turn is a measure consequential upon Regulation (EEC) No. 1612/68.  In R(IS) 12/98, Mr Commissioner Mesher said –

 

“… a person who has left employment but remains in the labour market must retain the status of worker for the purpose of Regulation 1612/68.  In that context, it does not matter in itself whether the previous employment was left voluntarily or involuntarily.  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.”

 

11.     Thus, it seems to me, the term “voluntarily unemployed” must be regarded as focussing on the question whether the claimant is still in the labour market rather than on the circumstances in which he or she ceased to be employed, although the latter may be material as evidence as to whether or not the claimant is genuinely still in the labour market.  It was therefore unnecessary for Mr Venables to argue, as he did, that the claimant was forced by her circumstances to give up her employment and so did not give it up voluntarily.  Indeed, such an argument would not avail a claimant who was forced to give up employment due to childcare responsibilities and then remained unavailable for work due to those responsibilities.  I accept the Secretary of State’s submission that such a claimant would lose the status of “worker”.  That, though, is not the position in the present case.  If the claimant’s evidence is accepted, she ceased to be in the labour market for full-time employment but did remain in the labour market for part-time employment.  It is common ground that being available for part-time employment can be sufficient to enable a claimant to retain the status of “worker”.  Whether it was sufficient in the present case is a matter to which I shall return below.”

 

34. Article 7(1) of the now-repealed Directive 68/360/EEC, cited by Mr Commissioner Rowland, provided:

 

“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.”

 

35. If “involuntary unemployment” in Article 7(3)(c) and similar phrases are concerned with whether a claimant remained in the labour market after he or she became unemployed and even in the days of Directive 68/360 it was anticipated that it would be the “competent employment office” who had to confirm this, one has to ask whether it was the purpose to add anything by the requirement in the 2004 Directive to be “registered as a job-seeker with the relevant employment office.” 

 

36. The decision in C-127/08 Metock [2009] QB 318 suggests that the answer is that nothing is intended to be added. The European Court of Justice states at [59]:

 

"As is apparent from recital 3 in the preamble to Directive 2004/38, it aims in particular to ‘strengthen the right of free movement and residence of all Union citizens’, so that Union citizens cannot derive less rights from that directive than from the instruments of secondary legislation which it amends or repeals."

 

37. We were offered no travaux préparatoires by Counsel.  We have had our own researches carried out.  From these it is evident that what (with some amendment) eventually became Article 7(3) began life as Article 8(7), where its purpose was to define those who could not be refused a registration certificate.  The provision was moved at the instigation of the European Parliament, on the grounds that “this paragraph that deals with conditions relating to worker status should not come under administrative formalities in Article 8.”  In its Explanatory Memorandum on the first draft - COM(2001)257 final – the Commission says of Article 8(7):

 

“These provisions broadly take over certain provisions of Directive 68/360, with clarifications, and incorporate Court of Justice case-law regarding the retention of worker status where the worker is no longer engaged in any employed or self-employed activity.”

 

We have been unable to locate any other significant discussion of the provisions.

 

38. The travaux préparatoires along with the decision in Metock thus tend to suggest:

(a) there was no significant policy aim underlying the requirement for registration as a job-seeker, for otherwise the Commission could be expected to have commented on it in their Explanatory Memorandum; and

(b)the provision broadly took over certain provisions of Directive 68/360 with clarifications.

 

39. In a measure which is concerned not with benefits but with the right to reside we see no reason to think that the words “has registered as a jobseeker with the relevant employment office” require that the claimant do more than whatever is necessary to have his or her name recorded as a person seeking work. Of course, the intention to seek work must be genuine and the extent of the work sought must be sufficient.  Both these matters were conceded before us.  It is accepted in this case that the relevant employment office gave the claimant a form which asked whether she was seeking work, received a reply in the affirmative, and did nothing to question or dispute that reply when rejecting the claim. It was a form concerned with the right to reside. In the present circumstances, we cannot see that there is anything further required of the claimant to meet Article 7(3)(c).

 

40.  The analysis which we have made in response to Judge Howell suggests that the assumption made in paragraph 12 in favour of the Secretary of State is likely to be unduly generous.  We dismiss the appeal because even on the basis of that assumption, the Secretary of State’s argument on our view cannot succeed.

 

41. Further arguments were put forward on behalf of the claimant that she was in any event a “jobseeker” for the purpose of the definition of “qualified person” in regulation 6(1) of the 2006 Regulations (a definition which, as noted in paragraph 22 above is for a different purpose) and that regulation 21AA(3)(b)(i), within which, in such a capacity, the claimant would fall, was in conflict with (a) Article 39(2) EC and/or Article 5 of Regulation 1612/68; and/or (b) Article 3 of Regulation 1408/71.  In view of the conclusion we have reached above, we do not need to consider these points further, which were aimed at upholding the decision on different grounds if we were otherwise minded to determine the appeal against the claimant.

 

 

_______________________________

 

 

Minority reasons:  Judge P L Howell QC:

 

42.           I am sorry to find myself dissenting from my two colleagues on the result of this case. I would for my part allow the Secretary of State’s appeal, set aside the decision of the tribunal as erroneous in law in holding that the claimant had “registered as a job-seeker with the relevant employment office” merely by stating in the course of an inquiry on her income support claim that she was looking for work, and substitute a decision that on the undisputed facts and evidence she had not been shown to have been so registered at the material time, so the departmental decision of 28 August 2006 that she was not entitled to any income support on her claim of 20 June 2006 was correct.

 

43.           The claimant, a single woman who is a French national of Somali origin, entered the UK on 2 September 2005 with her small child, hoping to settle here. From November 2005 she obtained temporary part-time employment helping at weekends at an internet sales business, but this came to an end on 31 May 2006. On 20 June 2006 she claimed income support as a lone parent with no work and no resources. In the course of an ensuing inquiry into her residence status on her income support claim she stated (either verbally to staff at the local Jobcentre or by ticking a box on an inquiry form) that she was looking for work, but she did not apply for a jobseeker’s allowance or make any other application to the Jobcentre for registration or assistance as a jobseeker; not having done so, she was not listed or entered on the departmental system as a jobseeker. On 28 August 2006 her application for income support was refused on the ground that she was a “person from abroad” without a relevant right to reside in the UK to qualify her for that benefit. On her appeal to the tribunal this was reversed and she was held entitled to income support as an EU migrant worker who retained that status by virtue of having registered with the relevant employment office as a job-seeker. The Secretary of State appealed on the ground that this was not a finding open to the tribunal to make.

44.           The issue of law raised by this appeal was, and in my view remains, that identified in clear and succinct terms in the written submission on behalf of the Secretary of State by Mr D Scholefield dated 20 May 2008 at pages 56-7 as follows:

“2. Regulation 21AA(4) [of the Income Support (General) Regulations 1987 SI No 1967, as in force from 30 April 2006 onwards] states, where relevant ...

“(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 paragraph (a) ... pursuant to Article 7(3) of that Directive; ...”

3. Therefore a person retaining status as a worker under the Directive is not a person from abroad and does not have an applicable amount of nil for the purposes of entitlement to income support.

4. However in order to retain worker status under Article 7(3) [sc. Art. 7(3)(c): the only one in point] whilst unemployed the claimant must register as a job-seeker with the relevant employment office. There is no provision or mechanism in place for this to be done by claiming income support. This reflects the policy of the Secretary of State under the current legislation and no concession is made that a person can register as a job-seeker by claiming income support and declaring that they are a workseeker. I therefore respectfully agree with what was said by the Commissioner in CIS/4305/2007:

“15. .. the claimant ... cannot come within Article 7(3)(b) or (c), because she had not ‘registered as a job-seeker with the relevant employment office’. That may have been because she was wrongly advised, but the fact remains that she was not registered. It is irrelevant that she continued to seek work.

16. There is no definition of what is involved in registering as a jobseeker and there is no provision that a claim for jobseeker’s allowance is essential. However, income support does not involve registering as a jobseeker, whereas jobseeker’s allowance does.”

5. The concession made on behalf of the Secretary of State in CIS/3315/2005 was made in the context of the legislation in force at the time the claim in that case was decided. There was at that time no provision requiring registration as a job-seeker.

6. I therefore submit that it was not open to the tribunal to hold, on the evidence before him, that the claimant had registered as a job-seeker.”

The argument of Mr Edwards for the Secretary of State was, as I understood it, founded on essentially the same submission.

45.           The tribunal’s reasoning on that point was set out in in paragraph 4.3 of the chairman’s statement of reasons issued to the parties on 13 September 2007 (page 23: I should like to pay tribute to his clear and humane approach, tackling some difficult law) as follows:

“4.3 The Respondent has conceded (12) and I was satisfied that Appellant stated, on the Habitual Residence Test documents, that she was seeking work. The Respondent has conceded generally – see CIS/3315/2005 – that such statement amounted to due recording of the unemployment, and I held, under the principles considered there, that it amounted to due registration as a jobseeker.”

On that basis he held the original refusal of the claim by the Secretary of State had been wrong and the claimant should be awarded income support.

46.           There is no challenge to his further factual findings that the work previously done by the claimant had been genuine and effective so she had had the status of a “worker” until her dismissal on 31 May 2006, and that the part-time work he accepted she was willing to try and manage (being for 16 hours or more per week) would likewise have been genuine and effective work for the purpose of enabling her worker status to be preserved: page 25. Availability for that much work would have enabled her to qualify for a jobseeker’s allowance: regulation 13(4)(c) Jobseeker’s Allowance Regulations SI 1996 No. 207. For the purposes of this appeal, there is also no dispute that in view of those findings the claimant can be taken to qualify as a workseeker at all material times. (There is some ambiguity in the opening clause of paragraph 4.3 of the tribunal’s reasons and I think the only concession in fact made at the tribunal was that she had stated she was a workseeker, not that she actually was, as she had not in fact been applying for any jobs: compare pages 12 and 19, recording the presenting officer’s express submission that she was “Not a workseeker”; but for present purposes that does not matter).

47.           There is thus no dispute that:

(1)  the procedure for signing on as a jobseeker at the “Jobcentre Plus” office (since the merger of the former Employment Service with the Department of Social Security into the Department for Work and Pensions in 2001, a combined employment and benefits office for all persons of working age) by completing a jobseeker’s form so as to give details of her availability for work, the kind of work she was looking for and so forth, and also to claim jobseeker’s allowance, was at all times available to this claimant ;

(2)  had she used it, she would have thereby been able to obtain, and would have obtained, both the assistance and supervision of the employment service in learning of vacancies and conducting an effective search for work, and an award of jobseeker’s allowance (the weekly income replacement benefit provided for persons claiming and entered in the department’s systems as jobseekers, to assist them in continuing that search and facilitate their access to the job market); and

(3)  that process would have amounted to her “registration as a job-seeker with the relevant employment office” in the United Kingdom within the meaning of Art. 7(3)(c) of the Directive; but

(4)  the claimant did not use it. (At the time with which this appeal is concerned, that is: though she later did, and was then duly entered on the system as a jobseeker and awarded a jobseeker’s allowance.)

48.           In those circumstances I would accept the Secretary of State’s submission that the tribunal chairman misdirected himself in holding the mere statement made in connection with an income support claim (income support being the social assistance benefit of last resort, not tied to any search for work and expressly restricted to specific categories of persons who are not required or normally expected to go out and look for it) was sufficient to constitute registration of her as a job-seeker, and in thinking that what had been said or conceded on a differently worded provision in case CIS 3315/05 led to the conclusion he expressed. As the judge who decided CIS 3315/05 himself observed in the direction he gave in this present case on 28 October 2008 at page 84, the legislation has changed since that relevant to his decision. The terms of that direction make clear that he did not think the tribunal’s conclusion did follow from his own previous decision, which (and the concession it recorded) related to a provision containing only the first of the two requirements now in Art. 7(3)(c), that the person concerned should be in “duly recorded involuntary unemployment”.

49.           Both Counsel before us were agreed that there are now two separate requirements expressed in Art. 7(3)(c) which have to be met before a person can successfully claim benefit on the basis of retained worker status. (A person with that status under Art. 7(3) is just one of a common list of exemptions from the normal “right to reside” test introduced at the same time in identical terms in regulation 21AA(4) of the Income Support regulations and the corresponding regulation 85A(4) of the Jobseeker’s Allowance regulations, so I do not think any inference can be drawn just from presence in that list that a person in a particular category was necessarily intended to get one or other benefit). It seems to me self-evident on the plain wording of the provisions now in force that the second requirement introduced for the first time by Art. 7(3)(c) is additional to and more specific than the first, in now requiring a procedure to be gone through with the employment authorities in the host member state to verify and establish such people’s genuine continuing status as jobseekers and hence connection with the labour market in that state, as distinct from merely recording the fact that they were unemployed and had said they did not wish to be.

50.           I do not see much value in now trying to examine the relation between the two conditions in Art. 7(3)(c), for example whether some form of registration was implicit in the concept of “duly recorded involuntary unemployment” all along (which would open up the question whether the concession recorded in CIS 3315/05 was ever rightly made at all). It is now explicit that there must be registration with the local employment service as a job-seeker, which to be of any practical significance at all must in my view mean registration with that service to some purpose, as a person applying to it to be given a job or for its practical help in finding one. (For what it adds, that seems also the natural sense of registration “en qualité de demandeur d’emploi” in the French text; “al fine di trovare un lavoro” in the Italian.) It was common ground, rightly in my view, that the procedure to register as a job-seeker with the local employment service was something that must depend on the local practice in the individual host member State, there being nothing prescribed about it in the Directive; and that this might properly be made to include the giving of such details as those in paragraph 47(1) above, required of any UK jobseeker. Neither Counsel invited us to look at any travaux préparatoires and we did not have the benefit of any argument on whether we could or should do so: of the material referred to in paragraphs 36 and 37 of the majority judgment I would say only that it does not seem to me at all conclusive of the present issue in any case.

51.           I therefore agree with the Secretary of State, with the indication given in the direction at page 84 by the judge who decided CIS 3315/05, and with the decisions given by the judge in this present appeal on the first occasion it was decided, in CIS 4305/07 and more recently in CIS 3505/07 also relied on by the Secretary of State and applying the same principle, that the new more explicit condition in Art 7(3)(c) cannot be taken as satisfied merely by the making of a statement of the kind made in this case in the course of an income support claim when the claimant has not applied to sign on as a jobseeker or given any other indication of a wish to be registered as a jobseeker, receive the assistance of the employment service as a jobseeker or have her details entered on the departmental systems in that character or capacity.

52.           As that judge said at paragraph 21 of his decision of 27 May 2008 on the present case at pages 76-79 (afterwards set aside for procedural reasons):

“21. I am not going to attempt to define what the Directive has not. It is sufficient for me to decide whether what the claimant did in this case amounted to registration. What she did was to provide information as a matter of fact in connection with a claim for benefit that is not particularly or primarily designed for those seeking employment. The document in question was not used, or designed to be used, for any purpose other than applying regulation 21AA. Completing the document was not part of a process of finding work for the claimant, helping her find work for herself or helping her improve her chances of finding work. Nor was it a document that was held for any purpose in connection with any of those activities. In those circumstances, she was not registered for the purposes of Article 7(3) of the Directive.”

Except that I think the standard form “Right to Reside Stencil” of which we have been provided with an example at pages 88-94 may also be used to record information with a view to deciding residential status on other benefit claims than income support (which does not detract from the main point) that seems to me an entirely correct statement of how regulation 21AA(4) applies to the undisputed facts here, and I agree in particular that it is not necessary or desirable to try and produce an exhaustive definition of whatever may be the outer limits of “registration” for Article 7(3)(c) in order to decide this appeal.

53.           Accordingly I too would hold that the tribunal chairman misdirected himself in assuming that the newly introduced second requirement in Art. 7(3)(c) added nothing to the first so that both were to be taken as satisfied merely by the one single statement. The only conclusion to which he could properly have come on the undisputed facts was that the claimant had not registered as a job-seeker with the relevant employment office on or before the making and determination of her income support claim, and so had to be counted on that claim as a “person from abroad” with an applicable amount of nil.

54.           Why the claimant did not at that time use the procedure available to her of signing on and claiming as a jobseeker, and thereby obtaining the assistance of the employment service, as well as a jobseeker’s allowance (whose amount would have been identical to the income support she did apply for) is irrelevant to this appeal, which is concerned only with the question of her actual entitlement on her claim. It may have been confusion or misunderstanding on her part, or possibly mistaken advice. She told us in an affidavit that she went to the Jobcentre to claim benefit, and did so on the advice of a Somali association with whose assistance she completed the income support claim form; there is no evidence of whether she also sought or was given any advice from the staff at the Jobcentre itself, though it seems plain that for one reason or another she cannot have given them any clear indication that what she wanted and was there for was to register for employment and claim benefit only in the capacity of a jobseeker and subject to the signing-on conditions. Whether any of this gives rise to any compensation claim may need to be considered by her advisers separately, but none of it makes any difference to whether she met the conditions of entitlement to the benefit she did claim, which both sides agree is a purely objective question, primarily one of fact but overlaid of course with one of law as to whether the facts found could amount to “registration” in the context of Art. 7(3)(c).

55.           As I have already indicated it is also unnecessary in my view to attempt to consider, as Mr Cox for the claimant urged us to do, whether the procedure for signing on and claiming jobseeker’s allowance constitutes a complete and all-embracing system of registration of EU migrant workers or workseekers in temporary unemployment for the purposes of the residence rights under the Citizenship Directive 2004/38/EC, and to make a more general inquiry on those lines the touchstone of whether the Secretary of State’s appeal in this case succeeded. I was unable to follow why it made a difference to the issues in this case if, as he suggested, there might be persons concerned to retain worker status under Art. 7(3)(c) who might not be able successfully to claim the allowance, for example because they were not able or willing to meet the conditions as to availability for and actively seeking employment, though still concerned to obtain a sufficient amount of work to go on counting as a “workseeker” in EU law terms. It is a matter of speculation what might have happened if such a person had presented himself or herself at the Jobcentre Plus office and applied to be registered as a job-seeker while declining either to claim jobseeker’s allowance or to apply under regulation 8A of the Social Security (Credits) Regulations SI 1975 No. 556 to be credited with national insurance contributions while unemployed (which involves showing compliance with the jobseeker conditions as to availability and so on, in practice by completing the relevant parts of a jobseeker’s form so as to be recorded on the system as a jobseeker, and is agreed to be an alternative process amounting to “registration” in that capacity): but whatever the answer that is not this case. Even if such a person had been wrongly refused registration because the system did not allow for it, it is not a matter of which this claimant can make complaint. It would simply mean that the United Kingdom had a less than perfect system for registering some other people as job-seekers for the purposes of Art. 7(3)(c). It would not alter the fact that there was a perfectly adequate procedure for doing so so far as a person in the claimant’s position was concerned, and she did not use it.

56.           Mr Cox advanced other arguments of a more general nature suggesting that the failure of the domestic legislation to provide his client with income support in the circumstances of her claim would infringe the requirements of EU law, but none was well founded in my opinion. As has recently been confirmed by the Court of Appeal in Patmalneice v Secretary of State [2009] EWCA Civ 621, 25 June 2009, the imposition of the “right to reside” requirement for means-tested social assistance benefits is not, in principle, inconsistent with the treaty provisions securing the free movement of workers within the EU nor does it amount to unlawful discrimination on the ground of nationality. There is no provision of EU legislation that in terms requires a person in the claimant’s position to be given “pure” social assistance benefits (that is, unrelated to a job search) in a host state, and recital (10) and Art. 24(2) of the Citizenship Directive make clear there is no such general obligation. The only relevant requirement of general principle is that EU citizen migrant workers or jobseekers are to be given equal treatment in terms of the same access to employment opportunities and social advantages connected with the search for work, including benefits of a financial nature intended to facilitate access to employment in the labour market of the host member state, as United Kingdom national jobseekers in a comparable position (judgment of 23 March 2004 in case C-138/02 Collins v Secretary of State, [2004] ECR I-2703, ECJ) and that is achieved by the claimant’s ability to register as a jobseeker and qualify for jobseeker’s allowance in the same way and on the same conditions as them.

57.           There is no doubt a surface artificiality in making the claimant’s status as a worker depend on the course her application took in the Jobcentre office, when of course what she went there for was to get benefit, and everyone knows the extreme difficulties faced by anyone in her position in actually getting into genuine and effective employment in the EU. (She had been unable to do so in Strasbourg before coming to the UK, and we were told she was still unemployed and signing-on at the time of the hearing before us over three years later.) There is certainly a debate to be had over how and where assistance should be provided to help people in her circumstances assimilate as citizens of the EU, and perhaps neither result in this case is entirely satisfactory. But to hold that this claimant “registered as a job-seeker” merely by the one answer (or tick) she gave in the course of making an income support claim is to my mind to define that requirement of the 2004 Directive out of existence, and I would accordingly allow this appeal.

______________________________

 

58.           In accordance with the reasons of the majority this appeal is therefore dismissed.

 

 

 

 

 

Mr Justice Walker CP

 

 

 

Judge P L Howell QC

 

 

 

Judge C G Ward

 

18 December 2009