IN THE UPPER TRIBUNAL Case No. CIS/2423/2009
ADMINISTRATIVE APPEALS CHAMBER
Attendances:
For the Appellant: Tom Cross, of counsel, instructed by the Solicitor to the Department for Work and Pensions
For the Respondent: Andrew Watson, Free Representation Unit
Decision: The decision of the tribunal of 4 June 2009 is erroneous in law. I set it aside. I remit the appeal for determination by a differently constituted tribunal in the light of the directions set out below.
REASONS FOR DECISION
A. Introduction
1. For ease of comprehension, I will refer in this decision to the appellant as “the Secretary of State” and to the respondent as “the claimant.”
2. There was an oral hearing on 27 March 2013. The Secretary of State was represented by Mr Cross, and the claimant by Mr Watson. I am grateful to both of them for all their submissions and their assistance to me in isolating the issues for consideration in this appeal and in determining this appeal.
B. The issue in this appeal
3. The issue arising in this appeal is whether the claimant could, when he claimed income support on 10 September 2008, show that he had a right to reside in the United Kingdom. If he could, he would not be classified as a person from abroad in respect of whom the applicable amount would be nil.
4. A number of issues had been raised in the many submissions made in this long-running appeal. By the time of the oral hearing, the parties were in agreement that the only basis on which the claimant could show a right to reside on making his claim for income support on 10 September 2008 is if he had retained his status as a worker following the end of his employment in February 2007 which would then carry over into his claim for income support.
5. Determination of this issue required consideration of the conditions in Article 7 of Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/ EEC, 73/148/EEC, 75/43/EEC, 90/364/EEC and 93/96/EEC, [2004] OJ L229/35, Corrigendum [2005] OJ L197/34 (“the Citizenship Directive”).
C. The factual and claim history
6. The claimant, who was born on 23 March 1958, is a Dutch national. He first came to the United Kingdom on 9 September 2005 in order to look for work.
7. The claimant was in part-time employment from 1 December 2005 to 1 May 2006 working in a night club. He left that employment to look for employment with more hours of work.
8. The claimant was again in employment from some time in June 2006 until some time in February 2007. The claimant left that employment by his own choice.
9. The claimant claimed and was in receipt of a jobseeker’s allowance from 25 May 2007 to 31 August 2008. The Jobcentre advised the claimant to seek medical help when he told them he was sick. The claimant went to a doctor and was referred to hospital. He received medical certificates from 1 September 2008. It would seem that his medical condition was peripheral vascular disease giving rise to claudication on walking 50 yards.
10. The claimant made a claim for income support on 10 September 2008.
11. On 29 October 2008 a decision maker decided that the claimant was not entitled to income support because he did not have a right to reside in the United Kingdom.
12. The claimant appealed against that decision on 19 November 2008 on the grounds that it was wrong that he should suddenly cease to receive money when he was sick.
13. The claimant subsequently obtained representation and a written submission was prepared on his behalf for the tribunal. This submission argued that the claimant retained his status as a worker and so had a right to reside when he made his claim for income support.
14. The appeal came before a tribunal on 4 June 2009. The appellant attended with his representative. He gave evidence through the services of an interpreter. The Secretary of State was not represented. There is a brief record of the proceedings. The outcome was that the tribunal allowed the appeal on the basis that the claimant had worked in the United Kingdom for one year or more and was temporarily unable to work as a result of illness. A statement of reasons was subsequently provided.
15. The appeal now comes before me with the permission of a Judge of the Upper Tribunal. There has been a considerable delay in this appeal being heard and determined since the case was stayed pending the decision of the Court of Appeal in Secretary of State for Work and Pensions v Elmi [2011] EWCA Civ 1403. Issues in that case were thought likely to be relevant to the circumstances presented in this appeal. There have been multiple written submissions from both parties to me as issues have emerged in this appeal.
D. The grounds of appeal
16. The Secretary of State argues that the First-tier Tribunal has failed to make sufficient findings of fact to justify its conclusion that the claimant retained his status as a worker. It followed that their reasons were also inadequate.
17. Following the exchanges of submissions which have taken place in relation to this appeal, the parties are now in agreement that the only basis on which the claimant could show a right to reside on making his claim for income support on 10 September 2008 is if he had retained his status as a worker following the end of his employment in February 2007. If he retained his status as a worker while in receipt of a jobseeker’s allowance under Article 7(3)(b) of the Citizenship Directive, he would then retain that status under Article 7(3)(a) when he fell ill in September 2008.
18. The Secretary of State concedes, for the purposes only of this appeal and not in any general sense, that the claimant may be treated as having worked for more than one year by aggregating the two separate periods of work. At no point has it been suggested that the work undertaken by the claimant was anything other than genuine and effective work resulting in the claimant being a worker for the purposes of Article 39 EC.
E. National law
19. Entitlement to income support arises under s.124 of the Social Security Contributions and Benefits Act 1992.
20. The conditions of entitlement to income support require that the person is in Great Britain and, unless in an exempt group, is habitually resident in the United Kingdom, the Republic of Ireland, the Channel Islands and the Isle of Man. No one can satisfy the habitual residence test unless he or she has a right to reside in the territories listed above.
21. Those who do not satisfy the habitual residence test are categorised as persons from abroad whose applicable amount for income support purposes is deemed to be nil.
22. The key provision is to be found in regulation 21AA of the Income Support (General) Regulations 1987, as amended. This regulation provides, so far as relevant to the circumstances presented in this appeal:
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:
(a) regulation 13 of the Immigration (European Economic Area) Regulations 2006;
(b) regulation 14 of those Regulations, but only in a case where the right exists under the regulation because the claimant is—
(i) a jobseeker for the purposes of the definition of “qualified person” in regulation 6(1) of those Regulations, or
(ii) a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker;
(c) Article 6 of Council Directive No. 2004/38/EC; 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 person is not a person from abroad if he is—
(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;
(d) a person who is a family member of a person referred to in sub-paragraph (a), (b) or (c) within the meaning of Article 2 of that Directive;
(e) a person who has a right to reside permanently in the United Kingdom by virtue of Article 17 of that Directive
… .
F. European Community law
23. I am concerned with the Treaty and secondary legislation in effect as at the date of decision, namely October 2008. This predates the changes made by the Treaty of Lisbon, and so I will refer to European Community law rather than European Union law. For this reason the provisions of European Community law cited below are those in force in October 2008. However, in relation to the issues discussed in this case, the position is exactly the same following the changes made by the Treaty of Lisbon.
24. The following provision of the EC Treaty has been cited to me:
Article 18 EC
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 paid 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.
25. Article 7 of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, [1968] II OJ Eng Sp Ed 485 provides:
Article 7
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.
2. When the residence permit is renewed for the first time, the period of residence may be restricted, but not to less than twelve months, where the worker has been involuntarily unemployed in the Member State for more than twelve consecutive months.
26. The following provisions of the Citizenship Directive have been cited to me:
CHAPTER III
RIGHT OF RESIDENCE
Article 6
Right of residence for up to three months
1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.
2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.
Article 7
Right of residence for more than three months
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; or
(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or
(c) — are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and
— have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or
(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).
2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).
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.
4. By way of derogation from paragraphs 1(d) and 2 above, only the spouse, the registered partner provided for in Article 2(2)(b) and dependent children shall have the right of residence as family members of a Union citizen meeting the conditions under 1(c) above. Article 3(2) shall apply to his/her dependent direct relatives in the ascending lines and those of his/her spouse or registered partner.
Article 24
Equal treatment
1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.
2. By way of derogation from paragraph 1, the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b), nor shall it be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocation training, consisting in student grants or student loans to person other than workers, self-employed persons, person who retain such status and members of their families.
G. Did the tribunal err in law?
27. Both parties are now in agreement that the decision of the First-tier Tribunal cannot stand. The claimant’s representative agrees with the Secretary of State that the tribunal did not make all the findings of fact required to sustain the position for which his colleague argued before the tribunal, and for which he now argues before me. Therefore the decision of the tribunal should be set aside for error of law. I agree that the tribunal’s findings of fact and reasons are inadequate to sustain its conclusions, and for that reason I set their decision aside.
28. I will now consider the arguments of the parties and then present my assessment of the law before deciding the consequences of my decision to set the decision of the tribunal aside.
H. The arguments of the parties
The Secretary of State’s arguments in a nutshell
29. The Secretary of State argues that, in order to show that he retained his status as a worker under Article 39 EC, the claimant had to show that he had met the requirements of Article 7(3)(b) of the Citizenship Directive in a timely fashion. There are three requirements: (a) that he was in involuntary unemployment; (b) that such involuntary unemployment was duly recorded; and (c) that he had registered as a job-seeker with the relevant employment office.
30. The claimant had not completed these requirements until some three months after his previous employment ended, when on 25 May 2007 he claimed and was awarded a jobseeker’s allowance. Mr Cross, for the Secretary of State, said he could not conceive of circumstances where a delay of three months could be explained as a reasonable delay permitting worker status to be retained.
31. The concept of involuntary unemployment used in Article 7(3)(b) of the Citizenship Directive must, having regard to R(IS)12/98, CIS/3315/2005, and Case C-413/01 Ninni-Orasche [2003] ECR I-13217, be interpreted as meaning that the person retained a link with the labour market. That was to be determined having regard to the reasons the person left their employment, their intentions, and their activities thereafter.
32. The replacement of the requirements in Article 7 of Directive 68/360/EEC that a person be “involuntarily unemployed, this being duly confirmed by the competent employment office” by the threefold requirements in Article 7(3)(b) of the Citizenship Directive represented a significant change in the law. This justified revisiting the proper approach to the question of delay between the end of any employment and compliance with those requirements if worker status was to be retained.
The claimant’s arguments in a nutshell
33. The claimant, through his representative, accepted that, in order to show that he retained his status as a worker under Article 39 EC, the claimant must meet the three requirements in Article 7(3)(b) of the Citizenship Directive. However, he argues that a claimant who meets the requirement of being in involuntary unemployment will, throughout the period that he can show he is in involuntary unemployment, thereby also show that he meets the underlying purpose of the supervision and monitoring requirements inherent in the other two conditions. Since there is no time limit expressed for meeting the requirements in Article 7(3)(b) of the Citizenship Directive, a generous view should be taken of the time within which a person should complete the recording and registration requirements without losing the right to retain his worker status.
34. The claimant further argues that the provisions of the Citizenship Directive are designed to strengthen and simplify the rights attaching to citizenship of the Union, which means that there should be seen to be a continuity with the rights which existed prior to entry into force of the Citizenship Directive. Consequently, where a new requirement was imposed, a generous view should be taken of its application which would reduce the risk of the loss of citizenship rights. This suggested that a reasonable period should be allowed for a person to meet the recording and registration requirements of Article 7(3)(b) of the Citizenship Directive.
I. The Upper Tribunal’s assessment
The starting point
35. Where a person’s entitlement to income support is in issue, and a question arises as to whether that person has a right to reside, the most helpful starting point is regulation 21AA(4) of the Income Support (General) Regulations 1987, since a person is not treated as a person from abroad if he or she falls within the circumstances set out in the sub-paragraphs to paragraph (4). Here the relevant provisions are regulation 21AA(4)(a) which refers to “a worker for the purposes of Council Directive 2004/38/EC”, and regulation 21(AA)(4)(c) which refers to “a person who retains a status referred to in sub-paragraph (a) or (b) pursuant to Article 7(3) of the Directive.”
36. In the case before me, the claimant is seeking to take two steps under the provisions of Article 7(3). Firstly, he argues that he can retain worker status following the ending of his employment in February 2007 under Article 7(3)(b). Secondly, he argues that he retained worker status when he fell ill, since he then moved from being protected by Article 7(3)(b) to being protected by Article 7(3)(a) as a person temporarily unable to work as a result of an illness.
37. Both parties accepted before me that, if the claimant could establish that he retained worker status in 2007 under Article 7(3)(b), there was no difficulty about his continuing to retain worker status under Article 7(3)(a) in September 2008 when he became ill.
38. A claimant does not retain worker status merely by being in receipt of a jobseeker’s allowance, since meeting the requirement to have a right to reside can, in the case of a jobseeker’s allowance, arise in a number of ways. So far as relevant to this appeal, either (1) the claimant had a right to reside as someone who retained the status of worker under Article 7(3)(b) or (c) of the Citizenship Directive, or (2) the claimant had a right to reside under the more generous provisions of regulation 85A of the Jobseeker’s Allowance Regulations 1996 when compared with those of regulation 21AA of the Income Support (General) Regulations 1987. The second route does not include retention of worker status.
39. The central issue in this appeal is accordingly whether the claimant met the requirements of Article 7(3)(b) of the Citizenship Directive such that, in May 2007, he retained his status as a worker under Article 39 EC.
The requirements of Article 7(3)(b) of the Citizenship Directive
40. There are three conditions which need to be satisfied for a person to gain the benefit of retaining worker status under Article 7(3)(b) of the Citizenship Directive:
· the claimant must be in involuntary unemployment after having been employed for more than one year; and
· that involuntary unemployment must be duly recorded; and
· the claimant must have registered as a job-seeker with the relevant employment office.
The meaning of “involuntary unemployment”
41. There was considerable discussion of the meaning of “involuntary unemployment”, although by the end of the discussion I could not discern any real difference in the positions of the two parties. I accept that there has been no explicit interpretation of the term as used in Article 7(3)(b) of the Citizenship Directive, but I am satisfied that the earlier authorities dealing with the concept remain pertinent.
42. The starting point is R(IS) 12/98, an authority of long standing. The case concerned a French national who had worked as an au pair who claimed income support following the end of the au pair arrangement. If she could show that she was a worker who had retained her worker status, she would be entitled to income support under regulation 21(3)(a) of the Income Support (General) Regulations 1987 as then in force as a person who was a worker for the purposes of Regulation 1612/68/EEC. As such, she would be treated as being habitually resident in the United Kingdom.
43. In considering whether a person was in involuntary unemployment for the purposes of retaining worker status under Regulation 1612/68, Commissioner Mesher said:
… 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. (para. 21)
44. In the joined cases of CH/3314/2005 and CIS/3315/2005, the Commissioner was considering the position of a person who gave up work because of the pressures of childcare responsibilities. After citing the passage quoted above from R(IS) 12/98, the Commissioner said:
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 has 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. (para. 11)
45. The Secretary of State cited a number of paragraphs of the judgment of the Court of Justice of the European Communities in Case C-413/01 Ninni-Orasche [2003] ECR I-13217 on the distinction between being voluntarily unemployed and being involuntarily unemployed. Mr Cross says the effect of this decision on the earlier authorities is that it is not the correct approach to involuntary unemployment to focus only on whether a person remains in the labour market after they have left their employment. The reasons why the employment has ended are also relevant and should be considered.
46. In my view, in determining whether persons are in involuntary unemployment for the purposes of Article 7 of the Citizenship Directive, the proper question is whether they remain engaged in the labour market. In determining the answer to that question, the reasons why the previous employment ended, the intentions of the person concerned, and their actions and the circumstances obtaining after they have left employment are all relevant matters.
47. I do not read paragraph 11 of CIS/3315/2005 as saying that the reasons why a person stopped work are not relevant in determining whether a person remains engaged in the labour market. Those reasons are a relevant consideration, not the determining factor. They provide the context for a person’s activities after they have left their employment.
The requirements (a) that involuntary unemployment is duly recorded, and (b) that the Union citizen has registered as a job-seeker with the relevant employment office
48. Mr Cross, for the Secretary of State, went to some lengths to show me that the recording requirement (the requirement that the involuntary unemployment is duly recorded) and the registration requirement (that the claimant has registered as a job-seeker with the relevant employment office) are separate requirements.
49. I am readily persuaded by Mr Cross’s arguments, with which Mr Watson for the claimant did not disagree. I accept that the decision of the Upper Tribunal in Secretary of State for Work and Pensions v FE (IS) [2009] UKUT 287 (AAC), and of the judgment of the Court of Appeal on the appeal against that decision in Secretary of State for Work and Pensions v Elmi [2011] EWCA Civ 1403 show that they are separate requirements.
50. In the Elmi case, Maurice Kay LJ said:
12. On behalf of the respondent, Mr Simon Cox accepts that the reference in Article 7(3)(c) to registration as a job seeker enables a Member State to flesh out the concept of registration so as to oblige a claimant in relation to a particular social benefit to comply with reasonable continuing requirements which would enable the Member State to monitor his conscientiousness as a seeker of employment, such as the ones which undoubtedly exist in relation to JSA.
51. Moses LJ, with whom Baron J agreed, said:
24. … The rights which this respondent seeks to exercise are rights derived from Article 45 (ex 39) of the Treaty. It is trite that in order to be able to exercise those rights the claimant must demonstrate a real and genuine link with economic activity in this Member State, the United Kingdom. In those circumstances it is right that the United Kingdom should, as it is permitted to do pursuant to Article 7.3 of the Directive in issue, put in place a system which monitors and checks the link between one who is temporarily unemployed and seeking benefits and economic activity in this country.
25. For that purpose, and because it is right that Member States should exercise that measure of control in order to see whether a citizen of the EU has rights pursuant to Article 45, Article 7.3(c) of the Directive provides not only that one in the position of the respondent is in duly recorded involuntary [un]employment, but has also registered as a job seeker with the relevant employment office.
52. There has been a change of emphasis in the requirements of Article 7(3)(b) of the Citizenship Directive when compared with Article 7 of Directive 68/360/EEC. The earlier Directive required that the claimant was in involuntary unemployment which was duly confirmed by the competent employment office. The Citizenship Directive puts a greater onus on the claimant by adding a further requirement that the claimant has registered as a job-seeker with the relevant employment office.
53. I have no difficulty in reading the new and old provisions as essentially being the same in relation to the requirement that the claimant is (a) in involuntary unemployment, and (b) that involuntary unemployment is duly recorded (the term “confirmed” is used in the earlier Directive) in an employment office. But I do have difficulty in accepting the argument made by Mr Watson, for the claimant, that the requirement for registration adds little to the requirements in the earlier Directive.
54. Mr Watson sought to persuade me that a person who could show that they were in involuntary unemployment would essentially meet the other requirements in Article 7(3)(b) of the Citizenship Directive because a person who could show that they were properly engaged with the labour market would be doing everything which supervision by the State through the process of recording and registration would require. In fairness to Mr Watson, he was making this point rather more in the context of how much leeway should be allowed in terms of any delay between the end of an employment and completion of the requirements of Article 7(3)(b) than in relation to the essence of the requirements.
55. Mr Cross pointed out that the judgment of the Court of Appeal in the Elmi case required close reading, since there were reasons upon which all three judges were unanimous, but Mrs Justice Baron agreed with the reasons given both by Lord Justice Maurice Kay and by Lord Justice Moses. He drew attention to those parts of the judgment I have cited above. For the purposes of the appeal before me, this simply reinforces the view that the recording and registration requirements are separate elements of the permissible supervision by the State of those in involuntary unemployment and are important conditions to be satisfied by a person seeking to retain worker status.
56. The difficulty with Mr Watson’s position is that it permits a degree of self regulation, which might have been consistent with the wording of the earlier Directive, but cannot survive the addition of the new registration requirement. Let me flesh this out a little. Under a system where involuntary unemployment needed only to be confirmed or recorded in an employment office, it is possible to argue that, provided a claimant can show that they have been actively and genuinely seeking work in any period between the end of employment and the making of a claim, then a Member State should accept that and record or confirm it on the making of a claim. That does not seem to me to be possible where one of the preconditions to retaining worker status is registration with an employment office.
57. The final issue related to the timeliness within which the conditions in Article 7(3)(b) of the Citizenship Directive must be satisfied. I call this the issue of delay.
The issue of delay
58. Mr Cross argued that the registration requirement in Article 7(3)(b) of the Citizenship Directive called for a fresh look at any issue of delay between the end of employment and the completion of the requirements of Article 7(3)(b). He argued that, in order to take the benefit of retaining worker status, a claimant needed to act promptly and without undue delay in claiming a jobseeker’s allowance.
59. I stress that, in the case before me, what is in issue is the delay between the claimant’s employment ending and his claiming a jobseeker’s allowance. There is no dispute between the parties that the process of claiming a jobseeker’s allowance meets the recording and registration requirements. I would add that prompt action to claim a jobseeker’s allowance is also likely to avoid difficulties over a person showing that they are in involuntary unemployment.
60. Mr Cross referred to two cases which he accepted might at first sight be against him. In IR [2009] UKUT 11 (AAC), there was a delay of around six weeks before claiming a jobseeker’s allowance. Mr Cross notes that the two cases to which reference is made in that decision were both concerned with the interpretation and application of the requirements of Directive 68/360/EEC as reflected in regulation 5(2)(b) of the Immigration (European Economic Area) Regulations 2000. He argued that such guidance as those cases contained required some further elaboration in determining the proper approach to delay in meeting the requirements of Article 7(3)(b) of the Citizenship Directive.
61. Mr Cross also referred to ZW [2009] UKUT 25 (AAC) and argued that this case was of little assistance since it pre-dated the judgment of the Court of Appeal in the Elmi case. It was also mainly concerned with the possibility of meeting the recording and registration requirements through a work-focused interview of an income support claimant.
62. In his oral submissions to me at the hearing, Mr Watson did not seek to rely on these cases, though he did in the earlier written submissions to which he made reference in his oral submissions.
63. Both parties were invited to address me on the proper approach to delay.
64. Mr Cross, for the Secretary of State, argued that the Directive required that registration be effected promptly and without undue delay. When pressed, he sensibly said that it would not be right to specify some arbitrary time limit. What was required was a consideration of all the circumstances of the case in deciding whether the claimant had acted with reasonable expedition. He readily accepted that a delay of a few days would almost certainly be unproblematic, but any significant delay was likely to result in the loss of the ability to retain worker status under the provision, since it would deprive the Department of the ability to undertake supervision and monitoring of a claimant’s job search activities.
65. Mr Cross said that he could not conceive of circumstances in which a delay of three months could be justified, but did not go so far as to say that it would always be impossible to do so.
66. Mr Watson, for the claimant, pointed out that Article 7(3)(b) of the Citizenship Directive contained no time limit. This, together with an approach which did not too readily deprive citizens of the Union of the benefit of rights under the free movement provisions embodied in Article 18 EC, suggested that a generous view should be taken of the effect of delay in completing the requirements of the provision.
67. Mr Watson did concede that a delay of three months was at the “upper end” of what might be regarded as an acceptable delay, but everything should turn on all the circumstances including a claimant’s awareness of the provision.
68. Mr Cross, in reply, took serious issue with the relevance of a claimant’s knowledge of the provision, since this would open the door to all manner of claims based on ignorance of the provision.
69. I have concluded that where there is delay of more than a very few days between the end of employment and the completion of the formalities required to take the benefit of Article 7(3)(b) of the Citizenship Directive, the proper approach is to ask whether, having regard to all the circumstances of the case, there has been undue delay in meeting the requirements of the Citizenship Directive. I believe that an approach which focuses on undue delay is likely to be more easily and more consistently applied by decision makers and tribunals than a requirement for prompt completion of the requirements.
70. What then is involved in a test of undue delay? There must be a full enquiry into the reasons for, and circumstances of, any delay in completing the requirements specified in Article 7(3)(b) of the Citizenship Directive. In practice, that will be delay in making a claim for a jobseeker’s allowance, since that is the normal means by which the requirements are met.
71. Undertaking this enquiry will require decision makers and tribunals to make full and careful findings of fact about what a claimant did between the ending of employment and the completion of the requirements of Article 7(3)(b) of the Citizenship Directive. In the light of those findings, decision makers and tribunals are required to exercise a judgment as to whether there are reasonable grounds for the delay such that it is not right to regard it as an undue delay.
72. It follows that the longer the delay, the more compelling must be the reasons for it. I do not specify any outer limit beyond which a delay will necessarily be regarded as an undue delay.
73. In this case, the tribunal failed to make a full enquiry into what the claimant did between February 2007 when his employment ended and May 2007 when he claimed a jobseeker’s allowance. That is an error of law, and for that reason (as indicated earlier in this decision), I have set their decision aside.
J. The way forward
74. I have no alternative but to remit this appeal for a fresh determination at an oral hearing before a differently constituted tribunal.
75. I do so with a degree of reluctance since Mr Watson for the claimant conceded that a delay of three months is at the upper end of what could be considered acceptable, and Mr Cross indicated that he could not conceive of circumstances where a delay of three months could be excused. But that it not the same as saying that it would be quite impossible to succeed where there is a delay of three months.
76. Since we do not have more than a few hints from the bundle before me about why the claimant left his employment in February 2007, and what the claimant then did between February 2007 and May 2007 when he claimed and was awarded a jobseeker’s allowance, I do not feel that I have any alternative but to remit this appeal for this issue to be addressed in a fresh hearing.
77. In order to assist, I give the following directions for the new tribunal.
K. Directions for the new tribunal
78. There is to be a fresh oral hearing of this appeal before a differently constituted tribunal. The Secretary of State has conceded, for the purposes of this appeal only, that the claimant had worked for more than one year by aggregating the two periods of employment. The new tribunal must proceed on this basis.
79. The focus of fresh hearing will be on the following issues:
· whether the claimant was in involuntary unemployment;
· whether there was undue delay between February 2007 and May 2007 in claiming a jobseeker’s allowance;
80. If there was undue delay, the claimant was not, when he was awarded a jobseeker’s allowance on 25 May 2007, a person who retained his status as a worker. Consequently, he cannot be a person who has retained his status as a worker when he claimed income support on 10 September 2008.
81. If there was not undue delay, the claimant retained his worker status when he claimed and was awarded a jobseeker’s allowance on 25 May 2007. When he then claimed income support on 10 September 2008, he retained his status as a worker and had a right to reside as a person temporarily unable to work as a result of illness.
82. The onus is now on the claimant to adduce evidence for presentation to the new tribunal. I accept that, at this distance in time, that is less easy than it would have been at an earlier time. I also think that the claimant will have something of an uphill task to show that there was not undue delay.
83. The new tribunal must make the best of the evidence that is before it at the fresh hearing, and must make findings of fact that will enable it to determine whether there was undue delay in claiming a jobseeker’s allowance in 2007.
84. These directions are naturally without prejudice to case management directions being made by the First-tier Tribunal.
85.
Signed on the original Robin C A White
on 28 March 2013 Judge of the Upper Tribunal