Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CIS/886/2008

ADMINISTRATIVE APPEALS CHAMBER

Before Judges Edward Jacobs, Hugo Storey and Robin C A White

Attendances:

For the Appellant: Mr Jason Coppel, of counsel, instructed by the Solicitor to the Department for Work and Pensions

For the Respondent: Mr Ranjiv Khubber, of counsel, instructed by the Cambridge House Law Centre

Decision: The decision of the tribunal of 15 June 2007 is erroneous in law and we set it aside.

It is appropriate for us to make the decision which the tribunal should have made.

Our substituted decision: The respondent was not a person from abroad when she made her claim for income support on 29 December 2006.

 

REASONS FOR DECISION

A. Introduction

1.          For ease of comprehension, we 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 19 December 2012 before a three-judge panel composed of two judges drawn from the Administrative Appeals Chamber and one judge from the Immigration and Asylum Chamber. The Secretary of State was represented by Mr Coppel, and the claimant by Mr Khubber. We are grateful to both of them for their submissions and assistance to us in determining this appeal.

B. The issues in this appeal

3.          The issue arising in this appeal is whether the claimant could, when she claimed income support on 29 December 2006, show that she had a right to reside and thus would not be classified as a person from abroad in respect of whom the applicable amount would be nil.

4.          The focus of the hearing was on three possible sources of a right of residence:

(a) whether the claimant fell within the concept of “worker” in Article 39 EC as a person exercising rights of free movement for the purpose of taking up an offer of employment actually made; this question is addressed in Section F;

(b) whether the claimant could establish a right to reside on the basis of the principles established in Case C-34/09 Ruiz Zambrano v ONEM, Judgment of 8 March 2011 (hereinafter referred to as the “Zambrano case”); this question is addressed in Section G; and

(c) whether the claimant could establish a derivative right of residence under Article 12 of Regulation 1612/68; this question is addressed in Section H.

C. The context

5.          The claimant, who was born on 9 December 1965, is a German national. She first came to the United Kingdom in 1985. She was employed in casual work from 1985 to 1991, but then worked as a receptionist and general administrator in a health club between 1991 and 2000 earning around £100 per week.

6.          The claimant’s daughter was born on 1 June 2000. The father is a British national and the daughter acquired British nationality. The claimant does not appear to have been in work following the birth of her daughter.

7.          The claimant’s relationship with her partner broke down in difficult circumstances, which included incidents of domestic violence. As a consequence the claimant and her daughter returned to Germany on 4 April 2002. The claimant subsequently visited the United Kingdom for short visits to family (notably the paternal grandmother) and friends two or three times a year.

8.          The claimant worked in Germany for a political party from May to September 2003, and for a children’s charity between September 2003 and June 2006.

9.          The claimant returned to the United Kingdom on 8 July 2006 intending to make the United Kingdom her home. She had received a modest legacy. She also held the offer of employment in the United Kingdom as a research assistant. This would involve working from home, where she would need a reliable internet connection in order to carry out her duties.

10.       The claimant registered herself and her daughter with a general medical practice, and enrolled her daughter in a primary school with effect from 31 October 2006.

11.       The claimant’s efforts to find accommodation which would be suitable for her work were frustrated. She claimed and was awarded Jobseeker’s Allowance from 12 October 2006.

12.       In December 2006 the claimant was found to have breast cancer and required urgent medical treatment.

13.       On 29 December 2006 she claimed income support.

14.       Following investigation, the decision maker concluded that the claimant did not meet the habitual residence test because she could not establish a right to reside in the United Kingdom on the date of claim. A decision to this effect was made on 20 February 2007. It was subsequently reconsidered but not changed.

15.       The claimant appealed against this decision arguing that she should be treated as having a right to reside by virtue of being a worker under European Community law because of her comprehensive work history in the United Kingdom, the presence of her daughter in education in the country, and because she had already passed the habitual residence test in respect of her claim to a Jobseeker’s Allowance.

16.       She also stressed that the original job offer remained open to her and had not been withdrawn. This is confirmed in emails from the employer which were before the First-tier tribunal.

17.       The appeal came before a First-tier tribunal on 15 June 2007. The claimant attended with a representative. The Secretary of State was also represented. The tribunal’s record of proceedings indicates that the Secretary of State’s representative agreed with the submission made on behalf of the claimant that she was a worker when she made her claim for income support. Unsurprisingly, in the light of that concession, the tribunal’s statement of reasons is brief on the precise nature of the concession made, and contains no detailed reasoning.

18.       The Secretary of State in seeking permission to appeal against the First-tier tribunal’s decision has resiled from the earlier concession. The appeal now comes before us with the permission of a Judge of the Upper Tribunal.

D. 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 (s.124(1) of the Social Security Contributions and Benefits Act 1992) 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 they have 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

… .

23.       Regulation 21AA cross refers at a number of points to the Immigration (European Economic Area) Regulations 2006, which were at the material time in their original form as set out in SI 2006 No. 1003. These regulations are intended to implement into United Kingdom law the requirements of Council Directive 2004/38/EC (hereafter referred to as “the Citizenship Directive”).

 E. European Community law

24.       We are concerned with the Treaty and secondary legislation in effect as at the date of decision, namely February 2007. This predates the changes made by the Treaty of Lisbon, and so we will generally refer to European Community law rather than European Union law.

25.       Article 6 of the Treaty on European Union as in force at the material time provides:

Article 6

1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

3. The Union shall respect the national identities of its Member States.

4. The Union shall provide itself with the means necessary to attain its objectives and carry through its policies.

26.       The following provisions of the Treaty establishing the European Communities have been cited to us:

PART TWO

CITIZENSHIP OF THE UNION

Article 17

1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.

Article 18

1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

2. If action by the Community should prove necessary to attain this objective and this Treaty has not provided the necessary powers, the Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. The Council shall act in accordance with the procedure referred to in Article 251.

3. Paragraph 2 shall not apply to provisions on passports, identity cards, residence permits or any other such document or to provisions on social security or social protection.

TITLE III

FREE MOVEMENT OF PERSONS, SERVICES AND CAPITAL

CHAPTER 1

WORKERS

Article 39

1. Freedom of movement for workers shall be secured within the Community.

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

(a)   to accept offers of employment actually made;

(b)   to move freely within the territory of Member States for this purpose;

(c)   to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;

(d)   to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.

4. The provisions of this article shall not apply to employment in the public service.

27.       The following provisions of the Citizenship Directive have been cited to us:

 

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.

28.       Finally, Article 12 of Regulation 1612/68/EEC has been cited to us:

TITLE III

Worker’s families

Article 12

The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory.

Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.

29.       Article 12 of Regulation 1612/68 was repealed and re-enacted in identical terms as Article 10 of Regulation 492/2011 with effect from 16 June 2011.

F. Can the claimant establish a right of residence under Article 39 EC?

30.       In this section, we address the first question raised in this appeal as noted in paragraph 4(a) above.

31.       The factual basis upon which we consider this question is that the claimant came to the United Kingdom in order to take up an offer of employment which had actually been made to her before she left Germany. Despite Mr Coppel’s attempts to suggest that the position was otherwise, we are entirely satisfied on the uncontradicted evidence of the claimant before the First-tier tribunal that she had received an offer of employment in the United Kingdom prior to her departure from Germany, and that her travel to the United Kingdom had as at least one of its purposes that of accepting the offer of employment she already held. We also note that at no point in these proceedings has any suggestion been made that the employment in question was anything other than genuine and effective work.

32.       The issue relates to the rights of residence which flow from the exercise of the free movement rights in Article 39 EC for the purpose of accepting an offer of employment actually made, and if the claimant has such a right, how it maps onto regulation 21AA of the Income Support (General) Regulations 1987.

33.       Mr Coppel, for the Secretary of State, argued that, in so far as any right to reside for the purpose of accepting an offer of employment actually made existed, it was a very short-lived right. In any event, the claimant had changed her status when she claimed Jobseeker’s Allowance in October 2006, and from that point could no longer base any claim on the existence of the job offer since by then it had become apparent that she could not take up that offer. He also argued that if we took a different view, we would be creating a whole new class of persons with a right to reside.

34.       Mr Khubber, for the claimant, argued that the claimant could throughout the relevant period from July to December 2006 rely upon the rights of free movement granted by Article 39 EC for the purpose of taking up offers of employment actually made. The facts of this case were very unusual in that a combination of housing and health problems delayed the ability of the claimant to take up the offer of employment, but it had not been withdrawn by the date of the decision under appeal, and the employer had even confirmed to the First-tier tribunal that he would hold the job open for the claimant pending her recovery from the medical treatment for breast cancer.

35.       Article 39 EC contemplates a number of situations encompassing the whole of a person’s working life, and beyond. It expressly provides for Union citizens (a) a right of free movement between the Member States for the purpose of accepting an offer of employment actually made, (b) a right to stay in a Member State for those who are actually in work, and (c) a right to remain when a period of actual work ends either on retirement or through accident or ill health. Both the case-law of the Court of Justice and European secondary legislation elaborate the conditions for the exercise of the rights enshrined in Article 39 EC, but the secondary legislation cannot limit the rights set out in the Treaty itself.

36.       The right of free movement for workers has been recognised as a fundamental freedom: paragraph 35 of Case C-281/98 Angonese [2000] ECR I-4139. From its earliest judgments the Court of Justice has regarded Article 48 EEC (which has subsequently become Article 39 EC and now Article 45 TFEU) as conferring rights on individuals. In Case 48/75 Royer [1976] ECR 497, the Court of Justice said at paragraph 31:

It follows from the foregoing that the right of nationals of a Member State to enter the territory of another Member State and reside there for the purposes intended by the Treaty—in particular to look for or pursue an occupation or activities as employed or self-employed persons, or to rejoin their spouse or family—is a right conferred directly by the Treaty, or, as the case may be, by the provisions adopted for its implementation.

37.       In Case 53/81 Levin [1982] ECR 1035, the Court of Justice said:

20. Under Article 48(3) of the Treaty the right to move freely within the territory of the Member States is conferred upon workers for the "purpose" of accepting offers of employment actually made. By virtue of the same provision workers enjoy the right to stay in one of the Member States "for the purpose" of employment there. Moreover, it is stated in the preamble to Regulation (EEC) No 1612/68 that freedom of movement for workers entails the right of workers to move freely within the Community "in order to" pursue activities as employed persons, whilst Article 2 of Directive 68/360/EEC requires the Member States to grant workers the right to leave their territory "in order to" take up activities as employed persons or to pursue them in the territory of another Member State.

21. However, these formulations merely give expression to the requirement, which is inherent in the very principle of freedom of movement for workers, that the advantages which Community law confers in the name of that freedom may be relied upon only by persons who actually pursue or seriously wish to pursue activities as employed persons. They do not, however, mean that the enjoyment of this freedom may be made to depend upon the aims pursued by a national of a Member State in applying for entry upon and residence in the territory of another Member State, provided that he there pursues or wishes to pursue an activity which meets the criteria specified above, that is to say, an effective and genuine activity as an employed person.

22. Once this condition is satisfied, the motives which may have prompted the worker to seek employment in the Member State concerned are of no account and must not be taken into consideration.

38.       All those who are beneficiaries of the rights contained in Article 39 EC are accordingly to be regarded as “workers”. This encompasses three distinct rights attaching to persons within the article’s concept of workers:

(a) the right to move to and stay in another Member State for the purpose of accepting an offer of employment actually made: Article 39(3)(a) and (b);

(b) the right to stay in another Member State as a person actually in work: Article 39(3)(c);

(c) the right to remain in another Member State when employment ends in accordance with conditions set out in secondary legislation: Article 39(3)(d).

39.       It is also clear that, for certain purposes, Article 39 EC includes among its beneficiaries those who move to and stay in another Member State for the purpose of looking for work. In Case C-292/89 Antonissen [1991] ECR I-745. The Court of Justice said:

11. Indeed, as the Court has consistently held, freedom of movement for workers forms one of the foundations of the Community and, consequently, the provisions laying down that freedom must be given a broad interpretation (see, in particular, the judgment of 3 June 1986 in Case 139/85 Kempf vStaatssecretaris van Justitie [1986] ECR 1741, paragraph 13).

12. Moreover, a strict interpretation of Article 48(3) would jeopardize the actual chances that a national of a Member State who is seeking employment will find it in another Member State, and would, as a result, make that provision ineffective.

13. It follows that Article 48(3) must be interpreted as enumerating, in a non-exhaustive way, certain rights benefiting nationals of Member States in the context of the free movement of workers and that that freedom also entails the right for nationals of Member States to move freely within the territory of the other Member States and to stay there for the purposes of seeking employment.

40.       The case-law thus establishes a distinction between a person who moves to and stays in a Member State for the purposes of accepting an offer of employment actually made, whose position is expressly covered by Article 39(3)(a) and (b), and a person who enters a Member State in order to seek work, whose situation is governed by the case-law extension of the scope of Article 39 EC.

41.       In very many cases, a person moving to another Member State holding an offer of employment will take up that offer within a matter of days or weeks. It will often be the case, however, that a short period before actually beginning the employment will be needed while the person holding the offer sorts out the practical matters which are inherent in any relocation connected with work. It will only be in very unusual cases that a person holding a job offer will not have taken up an immediate offer of employment within three months. We choose that period for two reasons. Firstly, the Citizenship Directive gives all Union citizens an unconditional right of residence for up to three months. Secondly, the period of derogation provided by Article 24(2) of the Citizenship Directive within which there is no obligation on a host Member State to provide social assistance is also three months.

42.       The case before us is one which we consider to be exceptional. Circumstances conspired to prevent the claimant from being able to take up the offer of employment actually made for a considerable period, but the offer had not been withdrawn. The possibility of taking it up was becoming more problematic when the accommodation problems were compounded by the serious health condition of the claimant. But, and we regard this as significant, the putative employer had confirmed in emails before the First-tier tribunal that the offer remained open at all material times.

43.       Mr Coppel argued that, once the claimant made a claim for a Jobseeker’s Allowance, she could no longer (if she ever could) claim a right to reside as a beneficiary of the provisions of Article 39(3)(a) and (b). She could not be both the holder of a job offer, and a job seeker. We, however, see no mutual exclusivity in these two situations. A prudent person facing an unexpected delay in meeting a contingency required for accepting an offer of employment actually made (and which had not been withdrawn) would be acting perfectly lawfully and reasonably in looking for other employment to tide her over until the contingency could be met.

44.       How then does the position of a person falling within Article 39(3)(a) and (b) and accordingly a “worker” in the broad sense in which that term is used in Article 39 EC map onto regulation 21AA of the Income Support (General) Regulations 1987?

45.       The structure of regulation 21AA is to set out in paragraph (1) that a “person from abroad” is a person who is not habitually resident in the territories listed. Paragraph (2) then provides that no one can be habitually resident in the listed territories unless they have a right to reside there. The term “right to reside” is not defined.

46.       Regulation 21AA(3) then excludes from the scope of the term “right to reside” any rights flowing from the provisions listed. Paragraph (4) of the regulation then lists a series of persons who are not to be regarded as a “person from abroad”. The drafting is inelegant. There is nothing in the wording of paragraph (4) to indicate that only the persons listed in that paragraph are treated as having a right to reside.

47.       The claimant is not excluded from being able to claim a right to reside by reason of the exclusions specifically enumerated in regulation 21AA(3). Sub‑paragraph (a) does not apply since the claim was made more than three months after the claimant’s arrival in the United Kingdom. Nor, for the same reason, does sub-paragraph (c) apply. That paragraph refers to the provisions in the Citizenship Directive concerning the initial right of residence for three months.

48.        Sub-paragraph (b) does not apply because the claimant does not fall within the definition of a jobseeker as defined in the Immigration (European Economic Area) Regulations 2006. There it is limited to the situation of 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.” The claimant entered the United Kingdom as a person holding an offer of employment which had been made before her departure from Germany. For the same reason, sub-paragraph (d) does not apply. This refers to the right to enter another Member State to seek work, a right which has been read into the scope of Article 39 EC by the case-law of the Court of Justice.

49.       It is next appropriate to consider regulation 21AA(4). Do the claimant’s circumstances bring her within the scope of sub-paragraph (a) as a “worker for the purposes of Council Directive No 2004/38/EC”? This requires consideration of the use of the term “worker” in the Citizenship Directive.

50.        The Citizenship Directive makes no explicit reference to Article 39 EC, though it is plainly one of the key provisions of the EC Treaty on the free movement of persons. Nor is the term “worker” defined in the Directive. The language is more that of Union citizenship as the first three paragraphs of the Preamble make clear:

(1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.

(2) The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty.

(3) Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.

51.       Paragraph (3) of the Preamble reflects the oft-repeated statement by the Court of Justice as follows, most recently in Case C-367/11 Prete, Judgment of 25 October 2012, as follows:

24. Citizenship of the Union is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for … .

52.       The Court also commented on the relationship between Article 39 EC and Article 18 EC in this case:

20. In relation to Article 18 EC, which sets out generally the right of every citizen of the Union to move and reside freely within the territory of the Member States, it is also settled case-law that this provision finds specific expression in Article 39 EC in relation to freedom of movement for workers (see, inter alia, Oteiza Olazabal, paragraph 26; Case C‑287/05 Hendrix [2007] ECR I‑6909, paragraph 61; and Schulz-Delzers and Schulz, paragraph 30).

53.       The reference in regulation 21AA(4)(a) of the Income Support General Regulations to “a worker for the purposes of Council Directive No 2004/38/EC” plainly includes those within Article 7(1)(a) of the Citizenship Directive which refers to “workers or self-employed persons in the host Member State.” The reference to “workers” in Article 7(1)(a) must include all those who count as workers within Article 39 EC. The third recital in the Preamble to the Citizenship Directive says that its purpose is “to simplify and strengthen the right of free movement and residence of all Union citizens.” Article 7(1)(a) of the Citizenship Directive uses the term “workers” without any qualification and takes us directly to the concept of a worker under Article 39 EC.

54.       By contrast, other provisions of Article 7 of the Citizenship Directive are qualified. For example, Article 7(3) refers to someone who has been a worker who may retain that status in the circumstances described. Here the term “worker” is used in a narrower sense. Hence in relation to the circumstances in which a person retained the status of worker, the Court of Appeal in JS Prix v Secretary of State for Work and Pensions [2011] EWCA Civ 806, considered that the Citizenship Directive was a complete code (see paras 13-16). That is binding on us, even though some doubt is cast on the correctness of the proposition by the questions referred to the Court of Justice by the Supreme Court in Jessy Saint Prix v Secretary of State for Work and Pensions [2012] UKSC 49 (see, in particular, paragraphs 21 and 22).

55.       Because the claimant was staying in the United Kingdom for the purpose of taking up an offer of employment actually made rather than as a person actually in work, we cannot, and do not, rely on Article 7(3). Article 7(3) appears to refer to a person in work who has ceased that work for one of the reasons specified in sub-paragraphs (a) to (d) and so is able to retain worker status. As Mr Coppel pointed out, that interpretation is reflected in the wording of regulation 6(2) of the Immigration (European Economic Area) Regulations 2006. There the reference is to “a person who is no longer working”.

56.       However, no such problem arises in relation to the application of Article 7(1)(a) which, in our view, uses the term “workers” in its wider sense as including all those within the scope of the words of Article 39 EC. This includes a person who has moved to and stays in another Member State for the purpose of taking up the offer of a job actually made.

57.       If, however, we are wrong on that, then, in our view, the claimant has a right to reside flowing from regulation 21AA(2), which must be interpreted to include a residual class of persons whose situation is not covered either by regulation 21AA(3) or (4) who have a right to reside and so are not to be treated as persons from abroad.

58.       Persons whose right to reside is accommodated by regulation 21AA(2) include those with a right to reside under European Community law flowing from the principles established in the Baumbast, Teixeira and Ibrahim, and Zambrano cases, as well as British nationals who have never exercised any right of free movement. The latter class could never satisfy the habitual residence test unless they are regarded as falling within regulation 21AA(2). Accordingly, we conclude in the alternative that the direct application of the express words of Article 39(3) EC relating to persons moving and staying in another Member State beyond three months for the purposes of taking up an offer of employment actually made brings that person within the terms of regulation 21AA(2).

59.       We would accept that there must be some limit on the period for which a person can rely on a right to stay in a Member State for the purpose of accepting an offer of employment actually made. The determination of the duration of that period requires an assessment of all the circumstances of each particular case. That is not an issue before us since we are satisfied that the claimant in her particular circumstances was at the date of her claim well within any such period.

60.       Our conclusion on this first question is sufficient to show that the claimant is not to be treated as a person from abroad in relation to her claim for income support made on 29 December 2006.

61.       We would finally comment on Mr Coppel’s objection that if we so found we would be creating a whole new class of “workers”. We would say that all we are doing is applying Article 39 EC to the unusual circumstances before us. We suspect that the issue has not arisen before simply because in almost all cases a person moving to a Member State holding an offer of employment actually takes up that employment within three months of arriving in the host Member State (or, if they cannot do so, the offer of employment is likely to be withdrawn). We do not see our conclusions as applying other than in unusual circumstances analogous to those faced by the claimant in this case.

G. Can the claimant establish a right to reside on the basis of the principles enunciated by the Court of Justice in the Zambrano case?

62.       In this section, we address the second question raised in this appeal as noted in paragraph 4(b) above. It is not strictly necessary for us to express any view on this question, but, since we have heard detailed argument, we consider that it may be helpful if we do express a view for the guidance of decision makers and tribunals.

63.       Mr Coppel for the Secretary of State says that the principles established in the Zambrano case, as explained and elaborated in later cases, now make it plain that the establishment of a right to reside will only arise where all the persons upon whom the children who are Union citizens are dependent are third country nationals, with the consequence that refusal to grant a derivative right of residence flowing from the Union citizenship of the children would have the practical effect that the children would be required to leave the territory of the Union as a whole.

64.       Mr Khubber strove to persuade us that the Zambrano case was authority for a wider proposition and could be relied upon by the primary carer of a Union citizen who was himself or herself a Union citizen where one possible outcome of a failure to recognise the right to reside might be that the primary carer and child would need to leave the Member State of residence.

65.       We were taken in some detail through the following cases in addition to the Zambrano case itself: Case C-434/09 McCarthy Judgment of 5 May 2011; Case C‑256/11 Dereci, Judgment of 15 November 2011; Case C-40/11 Iida Judgment of 8 November 2012; and Joined Cases C-356/11 and C-357/11 O and S; and L Judgment of 6 December 2012.

66.       We are not persuaded by Mr Khubber’s argument, but we are persuaded by Mr Coppel’s arguments on this issue. We quote from the judgment in Joined Cases C‑356/11 and C-357/11 O and S; and L which makes the position clear:

44. Since citizenship of the Union is intended to be the fundamental status of nationals of the Member States, the children of the previous marriages of Ms S and Ms L, as nationals of a Member State, enjoy the status of Union citizens under Article 20(1) TFEU and may therefore rely on the rights pertaining to that status, including against the Member State of which they are nationals (see McCarthy, paragraph 48, and Dereci and Others, paragraph 63).

45 On that basis the Court has held that Article 20 TFEU precludes national measures, including refusals to grant rights of residence to family members of a Union citizen, which have the effect of denying Union citizens the genuine enjoyment of the substance of the rights conferred by their status (see Ruiz Zambrano, paragraph 42).

46 With respect, finally, to the right of residence of a person who is a third country national in the Member State of residence of his minor children, nationals of that Member State, who are dependent on him and of whom he and his spouse have joint custody, the Court has held that the refusal to grant a right of residence would have the consequence that those children, who are citizens of the Union, would have to leave the territory of the Union in order to accompany their parents, and that those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred by their status (Ruiz Zambrano,  paragraphs 43 and 44).

47 The criterion of the denial of the genuine enjoyment of the substance of the rights conferred by the status of citizen of the Union referred, in the Ruiz Zambrano and Dereci and Others cases, to situations characterised by the circumstance that the Union citizen had, in fact, to leave not only the territory of the Member State of which he was a national but also that of the European Union as a whole.

48 That criterion is therefore specific in character inasmuch as it relates to situations in which a right of residence, exceptionally, may not be refused to a third country national who is a family member of a national of a Member State, as the effectiveness of the Union citizenship enjoyed by that national would otherwise be undermined (Dereci and Others, paragraph 67).

67.       We also note that all but the most recent judgments of the Court of Justice were discussed in Harrison (Jamaica) v Secretary of State for the Home Department, [2012] EWCA Civ 1736. In the light of their analysis of the cases, the Court of Appeal concluded:

63. I agree with Mr Beal QC, counsel for the Secretary of State, that there is really no basis for asserting that it is arguable in the light of the authorities that the Zambrano principle extends to cover anything short of a situation where the EU citizen is forced to leave the territory of the EU. If the EU citizen, be it child or wife, would not in practice be compelled to leave the country if the non-EU family member were to be refused the right of residence, there is in my view nothing in these authorities to suggest that EU law is engaged. Article 8 Convention rights may then come into the picture to protect family life as the Court recognised in Dereci, but that is an entirely distinct area of protection.

64. In my view none of the authorities has engaged with the possibility that the doctrine might extend in the manner suggested by Mr Drabble. The actual formulation of the Zambrano principle by the Court, when read in a context where only the potential deprivation of the right to residence was in issue, do not in my view lend support to the argument that the Court was leaving open the possibility that the doctrine might apply more widely and loosely.

68.       Having regard to the judgments of the Court of Justice, and the conclusions of the Court of Appeal in the Harrison case, we cannot see any merit in the argument which Mr Khubber makes. No question arises in the case before us of the claimant being required to leave the United Kingd om, though we accept that her ability to remain might have been made more difficult by a shortage of funds. The actual situation is that the claimant has continued to reside in the United Kingdom with her daughter. That would also appear to dispose of any fundamental rights argument based on the right to family life.

69.       Mr Khubber appeared to argue that the refusal to grant the claimant a right to reside was an impediment to free movement. We considered that argument to be tantamount to challenging the habitual residence test with its accompanying right to reside requirement. Any such argument has to be dismissed in the light of the judgment of the Supreme Court in Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11, which ruled that, although the test is indirectly discriminatory, it is capable of objective justification and so is not in breach of European Union law.

H. Can the claimant establish a derived right of residence through the application of Article 12 of Regulation 1612/68?

70.       In this section, we address the third question raised in this appeal as noted in paragraph 4(c) above. It is not strictly necessary for us to express any view on this question either, but it may be helpful if we do express a view on the question (particularly since the provision has been re-enacted in identical terms in Article 10 of Regulation 492/2011) for the guidance of decision makers and tribunals. We heard detailed argument on the question, and found the issues raised ones of some complexity and difficulty.

71.       Mr Coppel argued that the claimant could not rely on Article 12 for two reasons. Firstly, citing in support paragraph 17 of SSWP v SW (IS) [2011] UKUT 508 (AAC), the child was a United Kingdom national and Article 12 only applies where the child is a national of a Member State other than the host Member State, since a child who is a United Kingdom national has a right to education under national law. Secondly, the claimant was only in employment during her earlier period of residence. The four year break in residence precluded reliance on that earlier period in employment. Since the claimant had not been in employment following her return to the United Kingdom in July 2006, she did not meet the condition in Article 12.

72.       Mr Coppel did accept that not all absences would necessarily defeat the application of Article 12. Certain absences properly characterised as temporary would not count against a person seeking to rely on the provision. The facts of each case would be determinative. But here the claimant had returned to Germany and established herself as a worker there for a considerable period making only occasional visits to the United Kingdom. Her lengthy absence meant she could not rely on her earlier period of employment, since it could not properly be characterised as a temporary absence.

73.       Mr Khubber argued that Article 12 contained no nationality limitation. Furthermore the plain words of Article 12 referred to a person who “has been employed” and this was the case here. He did concede that the entitlement could not be “banked” forever, but argued that the claimant retained a connection with the United Kingdom sufficient to enable her to rely on the provision. Furthermore, her departure from the United Kingdom had been occasioned by a difficult relationship breakdown in which she had been the victim of domestic violence. Her departure could not therefore be said to be wholly a matter of choice.

74.       The quality of work which is required to bring a person within Article 12 of Regulation 1612/68 was discussed in detail in MDB, MADB and GRDB v Secretary of State for the Home Department, [2012] EWCA Civ 1015. The purpose of the provision was explained, but the focus was on whether the work which was in issue was sufficient to engage the rights set out in the article. In our case, two different issues have arisen. We do note however that Hooper LJ said at paragraph 10 that “Article 12 does not require the children to hold any particular nationality.”

Does the British nationality of the child preclude reliance on Article 12?

75.       We have concluded that the fact that the child in question is a national of the host Member State does not preclude the operation of the provision. The provision has to be read in the light of the case law of the Court of Justice, most notably Case C-310/08 Ibrahim [2010] ECR I-1065 and Case C-480/08 Teixeira [2010] ECR I‑1107, which established that Article 12 gives rise to a unfettered derivative right of residence for a primary carer of a child in order to enable the child to enjoy the benefits of the education and training to which Article 12 refers. The underlying objective is to promote integration of a family into the fabric of the host Member State: see the fifth and ninth recitals in the Preamble to Regulation 1612/68. We consider that to deny a Union citizen who is national of a Member State other than the host Member State but whose child is a national of that State a right of residence would constitute an obstacle to free movement which would breach European Union law by reason of its potential interference with the integration of the family in the host Member State.

76.       In our view, the right to education and its ancillary rights in Article 12 are not precluded in cases where the child is a national of the host Member State. Such a child has rights under both national law and European Union law. We consider that the proposition expressed in paragraph 17 of SSWP v SW (IS) [2011] UKUT 508 (AAC) to the extent that it decides that such a child has rights only under national law is not good law.

Does the period of four years back in Germany between 2002 and 2006 preclude reliance by the claimant on work in the earlier period of residence in the United Kingdom in order to secure the rights in Article 12?

77.       It was common ground between the parties that there need be no contemporaneous period of employment and education: see paragraph 26 of Joined Cases C‑147/11 and C‑148/11 Czop and Punakova, Judgment of 6 September 2012. We also had before us a letter dated 23 May 2012 from the Solicitor to the Department for Work and Pensions setting out the concessions made by the Secretary of State in these two cases.

78.       There was, however, no common ground between the parties on the significance of the claimant’s return to Germany for four years, though Mr Coppel conceded that not all breaks in residence would preclude reliance on work in an earlier period of residence, and Mr Khubber conceded that there was some limit on when a period of work in an earlier period of residence could be relied upon to secure the rights in Article 12.

79.       In our view, rights relating to the process of integration of a Union citizen who has exercised rights of free movement do not last forever. This much is clear in relation, for example, to the acquisition of the right of permanent residence under Articles 16 and 17 of the Citizenship Directive. Under Article 16(4) the right of permanent residence can be lost “through absence from the host Member State for a continuous period of two years.”

80.       We have concluded that whether an absence from the host Member results in the loss of the ability to claim the integration rights in Article 12 will be a matter to be determined in the light of all the circumstances of each case. Where a person has established an habitual residence in another Member State for a substantial period, we consider that the right to rely on a period of employment in an earlier period of residence in order to trigger the rights in Article 12 will be lost. Where the absence can properly be characterised as temporary having regard to all the circumstances, the right will not be lost. We observe that the test will always arise by considering what has happened in the past rather than what might happen in the future.

81.       The most relevant factors will be (a) the reasons why the person ceased to be resident in the host Member State in which the rights are being asserted; (b) the activities which the person undertook in the country to which he or she went, including economic activity in that country; (c) the roots which the person put down in the new country of residence; (d) the contact and its quality which the person retained with the host Member State; and (e) the length of absence from the host Member State. The longer the absence, the more difficult it will be to rely on the earlier period in work.

82.       In our case, although the claimant left the United Kingdom as a consequence of a messy relationship breakdown, she established herself and her daughter in Germany (the country of her own nationality) and undertook employment there for some years. She made two or three visits a year back to the United Kingdom. She had, in our opinion, plainly become habitually resident in Germany and well settled there until the combination of a legacy and a job opportunity in the United Kingdom arose. The nature, quality and length of her absence was such that she had lost the possibility of relying on the employment in the earlier period of residence as the basis for claiming rights under Article 12.

I. Did the tribunal err in law?

83.       It was implicit in the way the case was argued that both parties accepted that the decision of the First-tier tribunal could not stand, since it is inadequately reasoned. We agree. But the decision of the First-tier tribunal was only inadequately reasoned because the representative of the Secretary of State had indicated agreement with arguments put by and on behalf of the claimant. The First-tier tribunal cannot be criticised for its failure, which resulted from a concession by the representative for the Secretary of State from which the Secretary of State has now resiled.

84.       We set aside the decision of the First-tier tribunal as erroneous in law.

85.       This is plainly a case in which it is appropriate for us to remake the decision of the First-tier tribunal. Our formal decision which is recorded at the head of this decision is that the claimant was not a person from abroad in respect of her claim for income support made on 29 December 2006 for the reasons set out in Section F of this decision. The Secretary of State will now investigate whether the other conditions of entitlement were satisfied.

 

Edward Jacobs

Hugo Storey

Robin C A White

Judges of the Upper Tribunal

15 January 2013