IN THE UPPER TRIBUNAL Case Nos CIS/204/2013

ADMINISTRATIVE APPEALS CHAMBER CIS/1288/2012

CH/1312/2013

CH/1440/2013

 

Before UPPER TRIBUNAL JUDGE WARD

 

Attendances:

 

For the Claimants: Mr Adrian Berry (with him Mr Desmond Rutledge), instructed by Hansen Palomares in CIS/204/2013, by Mr Michael Spencer, Child Poverty Action Group in CIS/1288/2012 and by Osbornes Solicitors LLP in CH/1312/2013 and CH/1440/2013

 

For the Secretary of State:  Ms Joanne Clement, instructed by DWP Legal Services

 

Decision: 

 

In CIS/204/2013 (SFF) (interim decision):

 

a. I defer consideration of whether the First-tier Tribunal erred in law in holding that it would be disproportionate to deny SFF a right of residence under Article 18 TFEU until the date 21 days after the Supreme Court shall have given judgment in Mirga v SSWP, or further order.

b. By that date each party shall file a written submission indicating how in the light of Mirga it proposes that that aspect of the present appeal be dealt with.  The parties are encouraged to liaise with one another to see if a joint approach can be agreed.

c. In any event the decision of the First-tier Tribunal will fall to be affirmed on the ground that as at the date of decision under appeal, SFF had a right pursuant to the judgment of the Court of Justice of the European Union in C-507/12 Saint Prix.

 

In CIS/1288/2012 (ADR) (final decision):

 

The appeal is allowed. The decision of the First-tier Tribunal sitting at Fox Court on 30 September 2011 under reference SC242/11/06338 involved the making of an error of law and is set aside.  Acting under s12(2)(b) of Tribunals, Courts and Enforcement Act 2007 I remake the decision in the following terms:

 

ADR’s appeal against the decision of 17 February 2011 refusing her claim of 2 February 2011 for income support on the ground that she lacked the right to reside is allowed.  As at the date of her claim, she enjoyed a right of permanent residence under Article 16 of Directive 2004/38/EC.

 

In CH/1312/2013 and CH/1440/2013 (final decisions):

 

The appeals are allowed. The decisions of the First-tier Tribunal sitting at Enfield on 29 October 2012 under references 921/12/01284 and 921/12/01285 involved the making of an error of law and are set aside. Acting under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 I remake the decisions in the following terms:

 

CS’s appeals against the decisions of 25 November 2011 and 12 January 2012 respectively terminating benefit from 31 October 2011 and refusing her claim for benefit made on 5 January 2012 are allowed.  On the date of neither decision was she precluded from an award of housing benefit or council tax benefit on the ground of lacking the right to reside.

 

All

 

I abridge from 3 months to 6 weeks the time limit in rule 44(3) of the Upper Tribunal’s Rules in which any application for permission to appeal is to be made.

 

REASONS FOR DECISION

 

1. These appeals were previously stayed behind what became the decision of the Court of Justice of the European Union in C-507/12 Saint Prix v Secretary of State for Work and Pensions [2015] 1 CMLR 5, following a referral to it by the Supreme Court ([2012] UKSC 49), and are now are lead cases to determine how effect should be given to it.  The impact of Saint Prix has also been receiving consideration in the Immigration and Asylum Chamber in cases IA/04865/2013 and IA/2074/2013. 

 

2. In these Reasons, the individuals, who are sometimes the appellant and sometimes the respondent, are referred to by their initials:

 

CIS/204/2013 “SFF”

CIS/1288/2012 “ADR”

CH/1312/2013 and CH/1440/2013 “CS”

 

and collectively they are referred to as “the claimants”.  The London Borough of Barnet, First Respondent in the two housing benefit cases, has played no part.  The Secretary of State, joined in them as Second Respondent, has argued those cases also.

 

3. An oral hearing was held on 19 March 2015, in the course of which two issues were identified on which Ms Clement obtained my agreement to submit a written note afterwards, on which the claimants’ representatives have had the opportunity to comment.  My own research led to a further issue on which written submissions were directed.  I am grateful to Counsel for their oral and written submissions.

 

The Saint Prix decision

 

4. Paragraphs 39-47 of the CJEU’s decision require to be set out in full.  Paragraph 39 provides a sufficient summary of the facts, while paragraph 47 sets out what became the Court’s ruling, while much of the remainder featured in argument before me.

 

“39. In the present case, it is clear from the order for reference, a finding not contested by the parties in the main proceeding, that Ms Saint Prix was employed in the territory of the United Kingdom before giving up work, less than three months before the birth of her child, because of the physical constraints of the late stages of pregnancy and the immediate aftermath of childbirth. She returned to   work three months after the birth of her child, without having left the territory of that Member State during the period of interruption of her professional activity.

40. The fact that such constraints require a woman to give up work during the period needed for recovery does not, in principle, deprive her of the status of ‘worker’ within the meaning Article 45 TFEU.

41.The fact that she was not actually available on the employment market of the host Member State for a few months does not mean that she has ceased to belong to that market during that period, provided she returns to work or finds another job within a reasonable period after confinement (see, by analogy, Orfanopoulos and Oliveri, C‑482/01 and C‑493/01, EU:C:2004:262, paragraph 50).

42. In order to determine whether the period that has elapsed between childbirth and starting work again may be regarded as reasonable, the national court concerned should take account of all the specific circumstances of the case in the main proceedings and the applicable national rules on the duration of maternity leave, in accordance with Article 8 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently   given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348,   p. 1).

43. The approach adopted in paragraph 41 of the present judgment is consistent with the objective pursued by Article 45 TFEU of enabling a worker to move freely within the territory of the other Member States and to stay there for the purpose of employment (see Uecker and Jacquet, C‑64/96 and C‑65/96, EU:C:1997:285, paragraph 21).

44. As the Commission contends, a Union citizen would be deterred from exercising her right to freedom of movement if, in the event that   she was pregnant in the host State and gave up work as a result, if only for a short period, she risked losing her status as a worker in that State.

45. Furthermore, it must be pointed out that EU law guarantees special protection for women in connection with maternity. In that regard, it should be noted that Article 16(3) of Directive 2004/38 provides, for the purpose of calculating the continuous period of five years of residence in the host Member State allowing Union citizens to acquire the right of permanent residence in that territory, that the continuity of that residence is not affected, inter alia, by an absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth.

46. If, by virtue of that protection, an absence for an important event such as pregnancy or childbirth does not affect the continuity of the five years of residence in the host Member State required for the granting   of that right of residence, the physical constraints of the late stages of pregnancy and the immediate aftermath of childbirth, which require a woman to give up work temporarily, cannot, a fortiori, result in that   woman losing her status as a worker.

47. In the light of all the foregoing considerations, the answer to the questions referred for a preliminary ruling by the referring court is that Article 45 TFEU must be interpreted as meaning that a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth retains the status of ‘worker’, within the meaning of that article, provided she returns to work or finds another job within a reasonable period after the birth of her child.”

I refer to the right declared by para 47 to exist as a “Saint Prix right”.  I note that in that paragraph and in the Court’s order, it is the formulation “the aftermath of childbirth” rather than “the immediate aftermath of childbirth”  (which appears elsewhere) which is used.

The issues in the present appeals

 

5. The principal issues requiring to be considered are:

 

(a) What is the nature of the Saint Prix right:  in particular, is it a right to be assessed prospectively or retrospectively?

(b) To whom are Saint Prix rights available?

(c) When does a Saint Prix right start?

(d) How long does the “reasonable period” last? 

(e) Does a woman have to return to work (or find another job) or will a return to seeking work suffice?

(f) Can a Saint Prix right contribute to the period of time necessary to acquire the right of permanent residence under Article 16 of Directive   2004/38?

 

6. The issues arise in the present cases because the benefits they collectively concern, income support, housing benefit and council tax benefit, are each subject to the “right to reside” test.  The relevant provisions, which it is not necessary to set out, can be found in regulation 21AA of and para 17 of schedule 7 to, the Income Support (General) Regulations 1987/1967, regulation 10 of the Housing Benefit Regulations 2006/213 and regulation 7 of the (then in force) Council Tax Benefit Regulations 2006/215.  Each of the claimants in order to succeed in her claim needed to establish that around the birth of her child she had “worker” status.  In the cases of CS and SFF the issue arose directly, in that worker status, if established, would give the claimant the necessary “right to reside” at the time of her claim; in ADR’s case the question was whether she had enjoyed worker status in an earlier period and whether if so that would contribute to her enjoying the right of permanent residence under Article 16 of Directive 2004/38, so that the latter right could confer the necessary right to reside at the time of her claim.

 

7. The circumstances of each of the individual claimants are considered below.  What they have in common is that they were not, throughout the relevant period (though CS was for part), on maternity leave pursuant to a contract with an existing employer.  The position of those who are in such a position throughout is, for present purposes, unproblematic.  It is preferable, though, to start by examining the general issues.

 

Freedom of Movement Law

 

8. TFEU Article 45 provides :

 

“Article 45 (ex Article 39 TEC)

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

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 regulations to be drawn up by the Commission.

…”

 

9. Article 7(1) of Directive 2004/38/EC (“the Directive”) provides that:

 

“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;…”

 

10. By Article 7(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 jobseeker 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 12 months and has registered as a jobseeker with the relevant   employment office.  In this case, the status of worker shall be retained for no less than six months;

…”

 

11. Article 16 confers a right of permanent residence on Union citizens who have resided legally for a continuous period of five years in the host Member State.  Article 16(3) provides that:

 

“Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year…or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth…”

 

12. Effect is given to the provisions of the Directive by the Immigration (European Economic Area) Regulations 2006/1003.  Regulation 6 defines those who have retained worker status, who are entitled to a right of residence under regulation 14. Regulation 15 deals with the permanent right of residence.  It is not necessary to set them out.  In the present cases there is no suggestion that there is any gap between what the Directive and the Regulations respectively require.  There have, however, been several recent amendments to regulation 6 which may affect more recent cases than the present ones: see in particular with regard to retaining worker status the amendments introduced by the Immigration (European Economic Area) (Amendment) (No.2) Regulations 2013/3032.  Ms Clement has been at pains to submit that to retain worker status, a person must comply with the conditions of the Directive and of the Regulations.  If the Regulations are consistent with the Directive, the double requirement is unexceptionable, while if they are not, it may be possible to rely on the Directive alone.  Whether the amendments and the Directive are compatible may fall for decision in other cases and I express no view either way; nor is it necessary to decide in this case how the Saint Prix right fits in with regulation 6 as it now stands, which may likewise arise on another occasion.

 

13. Article 7 of Regulation 493/11 states:

 

“1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and, should he become unemployed, reinstatement or re- employment.

 

2. He shall enjoy the same social and tax advantages as national workers.

…”

 

Domestic benefits law

 

14. For those who have the right to reside, the position of a woman in the later stages in pregnancy was set out by Lady Hale in Saint Prix in the Supreme Court at [4]:

 

“By virtue of regulation 4ZA of and paragraph 14 of Schedule 1B to the Income Support (General) Regulations 1987 (SI 1987/1967), a 'woman who ... is or has been pregnant but only for the period commencing 11 weeks before her expected week of confinement and ending fifteen weeks after the date on which her pregnancy ends' falls within a 'prescribed category of person' for the purpose of section 124(1)(e) of the Social Security Contributions and Benefits Act 1992 and is thus eligible for income support. Unlike the closely related Jobseeker's Allowance, there is no requirement for such a person to be available for work or actively seeking employment.”

 

15. As to jobseeker’s allowance (which has the benefit of a wider right to reside test in that being a jobseeker without being a person with retained worker status is sufficient, when it is not so for income support), the position, again quoting Lady Hale, is that:

 

“A pregnant woman who is available for or actively seeking work may claim Jobseeker's Allowance until six weeks before her expected date of confinement, but from then until two weeks after she ceases to be pregnant, she is deemed incapable of work and so cannot do so: see regulation 14 of the Social Security (Incapacity for Work) (General) Regulations 1995.”

 

Regulation 15(1) of the Jobseeker’s Allowance Regulations 1996 provides that a person shall not be regarded as available for employment if she is in receipt of maternity allowance or maternity pay.

 

16. Maternity allowance is not subject to the right to reside test. It is paid pursuant to section 35 of the Social Security Contributions and Benefits Act 1992 and the Social Security (Maternity Allowance) Regulations 1987/416.  In brief, it is payable from the commencement of the 11^th week before the expected week of confinement; and is subject to a qualifying condition about the number of weeks in which the woman has been engaged in employment or self-employment and satisfaction of a threshold criterion in relation to her average weekly earnings. It is payable for the same 39 week period as statutory maternity pay (see below). Working for more than 10 days, whether consecutive or not, in the maternity allowance period triggers a liability to disqualification under regulation 2 of the Maternity Allowance Regulations.

 

17. Reference is made in paragraph 42 of the CJEU’s judgment in Saint Prix to Directive 92/85/EEC (“the 1992 Directive”) on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding.  Articles 2, 8 and 11 provide as follows:

 

“Article 2

Definitions

For the purposes of this Directive:

(a) pregnant worker shall mean a pregnant worker who informs her employer of her condition, in accordance with national legislation and/or national practice;

(b) worker who has recently given birth shall mean a worker who has recently given birth within the meaning of national legislation and/or national practice and who informs her employer of her condition, in accordance with that legislation and/or practice;

(c) worker who is breastfeeding shall mean a worker who is breastfeeding within the meaning of national legislation and/or national practice and who informs her employer of her condition, in accordance with that legislation and/or practice.

 

Article 8

Maternity leave

1. Member States shall take the necessary measures to ensure that workers within the meaning of Article 2 are entitled to a continuous period of maternity leave of a least 14 weeks allocated before and/or after confinement in accordance with national legislation and/or practice.

2. The maternity leave stipulated in paragraph 1 must include compulsory maternity leave of at least two weeks allocated before and/or after confinement in accordance with national legislation and/or practice.”

Article 11 makes provision for employment rights, including by Article 11(2) that:

“in the case referred to in Article 8, the following must be ensured:

(a) the rights connected with the employment contract of workers within the meaning of Article 2, other than those referred to in point (b) below;

(b) maintenance of a payment to, and/or entitlement to an adequate allowance for, workers within the meaning of Article 2.”

 

Domestic arrangements for maternity leave and pay

 

18. There are three types of maternity leave.  Compulsory maternity leave, reflecting Article 8(2) of the 1992 Directive, is provided for in section 72 of the Employment Rights Act 1996 and need not detain us.  Section 71 creates ordinary maternity leave (“OML”), while section 73 creates additional maternity leave (“AML”).  The detail, however, appeared, at the time we are concerned with, in the Maternity and Parental Leave etc Regulations 1999/3312 (as amended).  The differences between OML and AML are much less than their similarities.  The rights attaching to AML were assimilated to those under OML under the impact of discrimination legislation: see Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] EWHC 483 at [50] –[58], a case which led to the Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2008/1966, which effected the assimilation.  A more detailed analysis is unnecessary in the light of the position the Secretary of State has adopted in the post-hearing submissions, namely that both OML and AML fall within the scope of Article 8 of the 1992 Directive and thus that the national rules on the duration of maternity leave for the purposes of Article 8 of the 1992 Directive provide for a period of 52 weeks leave.  (OML runs for broadly a period of 26 weeks from its commencement, the date of which can within limits be stipulated by the female employee concerned.  AML can then run for a further 26 weeks.)  Those who are in employment are entitled to statutory maternity pay for a 39 week period starting from, at earliest, the beginning of the 11^th week before the expected week of confinement (unless the baby is born before then) and at latest the day after the baby is born.  (I do not deal here with the introduction, from April 2015, of statutory shared parental pay, which postdates the matters with which I am concerned.)

 

Key points from Saint Prix

 

19. It is not necessary to rehearse all the learning from the CJEU’s judgment.  However, in addressing the questions before me I note in particular:

 

a. that the concept of ”worker” within the meaning of Article 45 TFEU, insofar as it defines the scope of a fundamental freedom provided for by the EU Treaty, must be interpreted broadly:  Saint Prix, [33]; and

b. the CJEU’s concern at the “chilling” effect on the exercise of freedom of movement if a woman who was pregnant in the host State and gave up work as a result, if only for a short period, risked losing her status as a worker in that State:  Saint Prix, [44].

 

The nature of the Saint Prix right: a right to be assessed prospectively or retrospectively?

 

20. Fundamental to whether a person is a “worker” or not is whether she is on the employment market.  That may be reflected in actually being employed or, for instance, in one of the extensions of the concept provided for in earlier caselaw and subsequently codified in Art 7(3) of the Directive.  Saint Prix at [41] provides a further such example (emphasis added):

 

“The fact that she was not actually available on the employment market of the host Member State for a few months does not mean that she has ceased to belong to that market during that period, provided she returns to work or finds another job within a reasonable period after confinement (see, by analogy, Orfanopoulos and Oliveri, C‑482/01 and C‑493/01, EU:C:2004:262, paragraph 50).”

 

I return below to the questions of the period and the proviso referred to in the above paragraph:  for the moment, I merely note the recognition that late pregnancy and childbirth are not, of themselves, enough to take a woman off the employment market (and so outside the scope of Article 45).

 

21. Women who are pregnant and who subsequently give birth may be in an infinite variety of circumstances and, where they have a choice, may choose to exercise it in a variety of different ways.  This will include some who decide that they will not once again become active on the employment market once, following the aftermath of childbirth, they would be in a position to do so.  Such a choice, though it be made for entirely understandable reasons, such as in order to look after a young child, results in the loss of worker status: see e.g. C-325/09 Dias.  From the passage quoted above I would be minded to approach the issue as primarily one of the woman’s intention, but subject to the special protection conferred by the CJEU’s judgment.  That there should such special protection is consistent with a number of aspects of pregnancy and maternity, including that things do not always go smoothly for mother or child and that some women may simply not know their intentions with regard to future employment until some time after the birth has occurred.

 

22. Against that background, I do not view the proviso in [41] of Saint Prix as creating a condition precedent to the right coming into existence, which would have the consequence that the existence of the right could only be assessed retrospectively, but as a condition subsequent for terminating it where it is not met.  To treat it in the former manner would be to create a prolonged period of uncertainty, with the sort of potential “chilling “ effect [44] of Saint Prix cautions against.  It would deprive a woman (and it should not be forgotten that we are dealing here primarily with those who do not have the protection afforded by an ongoing contract of employment) of the benefits of “worker” status, including in relation to such matters as are contemplated by Article 7 of Regulation 493/11, just when, in late pregnancy and the aftermath of childbirth, she might particularly need them.  To treat it in the latter way means that a woman is protected by her worker status until such time, not exceeding the end of the “reasonable period” contemplated by [47] of Saint-Prix, as she by her words or actions shows an intention not to be part of the employment market.

 

23. Such an approach is consistent with cases such as C-340/97Nazli and with Orfanopoulos in which Nazli (a case on the Turkish agreement) was cited with approval.  In Nazli the CJEU held:

 

“40. In particular, while legal employment for an uninterrupted period of one, three or four years respectively is in principle required in order for   the rights provided for in the three indents of Article 6(1) to be established, the third indent of that provision implies the right for the worker concerned, who is already duly integrated into the labour force of the host Member State, to take a temporary break from work. Such a   worker thus continues to be duly registered as belonging to the labour force of that State provided that he actually finds another job within a reasonable period, and therefore enjoys a right to reside there during that period.

 

41. It follows from the foregoing considerations that the temporary   break in the period of active employment of a Turkish worker such as Mr Nazli while he is detained pending trial is not in itself capable of causing him to forfeit the rights which he derives directly from the third indent of Article 6(1) of Decision No 1/80, provided that he finds a new job within a reasonable period after his release.

 

42. A person's temporary absence as a result of detention of that kind does not in any way call into question his subsequent participation in working life, as is moreover demonstrated by the main proceedings, where Mr Nazli looked for work and indeed found a steady job after his   release.”

 

In other words, where a person faces an unavoidable break in circumstances which are recognised by EU law, the question is whether there is something which “in any way call[s] into question [a person’s] subsequent participation in working life.”  The reasonable period gives the person a fair opportunity to demonstrate that there is no such thing.

 

24. My understanding is that in practice the Secretary of State has accepted that a woman will retain worker status until there is reason to suppose otherwise and on a practical and, if I am right in the above, a legal level, that is the right approach.  I am less confident that it can be squared with a submission, such as that put forward by Ms Clement, that it is only once the proviso has been fulfilled that the right arises.  It seems to me that if that were the case, legislation might be needed to authorise the making of payments in advance of the right coming into being, however sensible on a practical level.  However, on the view I take of the nature of the right, that problem does not arise. Furthermore, such a view is entirely consistent with the operation of section 12(8)(b) of the Social Security Act 1998, which prevents a tribunal from taking into account “any circumstances not obtaining at the time when the decision appealed against was made”.  (Similar provision is made in relation to housing benefit by para 6(9)(b) of schedule 7 to the Child Support, Pensions and Social Security Act 2000).  In the context of a woman needing a decision on her benefit around the time of childbirth, the ”circumstances obtaining” may properly include her actual intention to return to work or the protection given to her by Saint Prix for the “reasonable period” to allow a decision in her favour or, conversely, if she had said by then that she had absolutely no intention of returning to work under any circumstances, such a statement.  It is far less clear, how taking into account whether a woman had, many months later, met the condition of the Saint Prix proviso could be reconciled with the operation of s12(8)(b).

 

To whom are Saint Prix rights available?

 

25. It is common ground that the rights are available – where the necessary conditions are met – to those who have exercised the right of freedom of movement for workers and have been employed in a Member State other than that of their residence: cf. Saint Prix , para 34.  It is, further, common ground that they are available to those who by meeting the conditions of Article 7(3) retain worker status while looking for work.  Accordingly, one may on any view enter the period of Saint Prix rights either having been employed immediately beforehand, or when one retains worker status pursuant to Article 7(3).  The CJEU’s reference to “a woman who gives up work, or seeking work” should at very least be understood in that light.  Ms Clement submits that Saint Prix rights are not also available to those who are “workers” within Article 45 by virtue of seeking employment in another Member State, pursuant to the principles in C-282/89 Antonissen (as opposed to those falling within Article 7(3)).  The point does not require to be decided in the present cases, which all relate to people who have actually worked and have so far as necessary retained worker status thereafter, and will have to be considered in a case in which it actually arises.

 

When does a Saint Prix right start?

 

26. It is when the reason for “giving up work or seeking work” is “the physical constraints of the late stages of pregnancy and the aftermath [or “immediate aftermath”] of childbirth.” That is liable to be fact-specific, depending both on the woman and unborn child concerned and on the job the woman has been doing.  That this is so is reflected in law in such matters as a woman’s right to put back the start of her maternity pay period for statutory maternity pay purposes to later than the 11th week before the expected date of childbirth and in the ability, referred to in [15] above, to continue to sign on as available for work and to claim jobseeker’s allowance beyond that time.  It seems to me that for this purpose the 11^th week before the expected date of childbirth which appears as the earliest permitted commencement of a maternity pay period and for payment of maternity allowance and, more importantly, as the start of the period when a claimant for income support fulfils, without more, the requirement to fall within a “prescribed category” of person (see [14] above) provides a convenient yardstick by which to assess whether the test is fulfilled but one that is capable of being displaced in particular cases.

 

How long does the “reasonable period” last? 

 

27. This is perhaps the most keenly contested aspect of the present proceedings.  The CJEU gives guidance in Saint Prix [42]: 

 

“In order to determine whether the period that has elapsed between childbirth and starting work again may be regarded as reasonable, the national court concerned should take account of all the specific circumstances of the case in the main proceedings and the applicable national rules on the duration of maternity leave, in accordance with Article 8 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently   given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348,   p. 1).”

 

28. The first question is what is meant by the instruction that ”the national court concerned should take account of all the specific circumstances of the case in the main proceedings”.  While I do accept that the expression “the main proceedings” is used by the CJEU to refer to the case in which the Article 267 reference to it has been made (as, for instance, in [48] of Saint Prix), I regard it as highly unlikely that the Court was directing a national court concerned with an unknown future case to take account of all the specific circumstances of the Saint Prix case – of which only a limited selection is set out in the Court’s judgment.  Far more likely is it in my view that the Court was directing that a national court would have to take account of all the specific circumstances of the case before it i.e. that the determination of the “reasonable period” includes a fact-sensitive element.  While I do not regard is as in any way determinative, I note that my view appears to be shared by the compiler of the headnote [H13] in the Common Market Law Reports. 

 

29. The next question is what is meant by “the applicable national rules on the duration of maternity leave, in accordance with Article 8 of Council Directive 92/85/EEC of 19 October 1992”.  At the oral hearing, Ms Clement put forward a submission based on the detailed terms of Articles 2, 8 and 11 of the 1992 Directive directed to showing that whereas OML fell with the words quoted, AML did not.  I subsequently questioned this on the basis that in the Equal Opportunities Commission case Burton J referred to the decision of the ECJ in C-284/02 Land Brandenburg v Sass, concluding that he had to apply it, in preference to the decision in C-411/96 Boyle v Equal Opportunities Commission, where statutory leave was concerned.  At [40]-[44] of Sass, the Court rejects an argument by the Commission which appeared to have some similarities to that Ms Clement had been putting forward.  Following inter-departmental consultation, the government’s position is now as set out in [18] above.

 

30. Ms Clement submits that the “reasonable period” is the period of 11 weeks before the expected week of confinement and 15 weeks after the date on which the pregnancy ends i.e. the period referred to in [14] above (“the 11+15 period”).  Mr Berry submits that the ”reasonable period” should be determined from the starting point of the 52 week period which OML and AML together represent.

 

31. Ms Clement’s arguments in support of her submission are in summary the following:

 

(a) the direction in [42] of Saint Prix to take into account the “main   proceedings” is a reference to Saint Prix itself;

 

(b) Saint Prix and the other mandated consideration, namely the national rules on the duration of maternity leave, point in different directions;

 

(c) the 11 +15 period was put forward both on behalf of the claimant to the Supreme Court and by the Advocate General in Saint Prix;

 

(d) the focus in Saint Prix is on the “immediate aftermath” or “aftermath” of childbirth and identifying a reasonable period within which a woman will return to work;

 

(e) a 52 week period goes far beyond the “reasonable period” considered in Saint Prix;

 

(f) reference to a report by the European Parliament[1] indicates that the average maternity leave duration in the Member States is 23 weeks.  20 Member States provide less than that, with a small number of relative outliers providing substantially more: Bulgaria (58.6 weeks), the UK and Poland (52 weeks) and Ireland (42 weeks).  Against that background, it would be surprising, even “bizarre”, if the CJEU had intended that women in Member States with longer maternity leave provisions would automatically retain their worker status for longer than those in Member States with much shorter periods;

 

(g) apart from the two factors mandated, all there is to go on is the identified purpose of the provision, namely to give protection to women facing the physical constraints of the late stages of pregnancy and the immediate aftermath of childbirth;

 

(h) there is a distinction between social security legislation (which provides support to a woman while she is unable to work due to the physical constraints of the late stages of pregnancy and a reasonable period after childbirth) and employment legislation, which provides a maximum period of leave within which a woman is free to choose when she returns to work – subject to taking the compulsory maternity leave required;

 

(i) the 12 month period specified in Article 16(3) of the Directive is of no assistance in determining the reasonable period. During an absence, the person is not in the host Member State and enjoying the benefits of free movement there. The Article is concerned with ensuring there is no prejudice on her return. It is not concerned with the consequences of inactive presence in the host Member State; and

 

(j) for all these reasons the appropriate period is the 11+15 period.

 

32. To that, Mr Berry and Mr Rutledge submit in summary:

 

(a) the CJEU expressly stipulated that national courts were to take account of the maternity leave period for which Article 8 of the 1992 Directive provides;

 

(b) for the reasons given by Burton J in the Equal Opportunities Commission case, in particular at [50]-[58], national legislation providing for leave of more than 14 weeks does not thereby cease to be maternity leave under Article 8;

 

(c) the 52 week OML and AML period should be adopted unless there are cogent reasons to think otherwise, which there are not;

 

(d) a female worker employed on a fixed term contract who is off work for pregnancy and whose employment contract has ended should have access to the same 52 weeks of retention of worker status as a woman who remains employed but who is on maternity leave, an approach that is consistent both with EU law principles on anti-discrimination and with   the CJEU’s ruling that the prohibition on dismissal on grounds of pregnancy during the period of leave applies in the case of a fixed term contract:  C-438/99 Jimenez Melgar v Ayuntamiento de los Barrios at [43]-[44];

 

(e) the 1992 Directive leaves Member States a margin of discretion so long as they comply with the minimum requirements. Consideration of the recitals to the 1992 Directive and of the Treaty demonstrates that the former is not a fully harmonizing measure, thus it matters not that there are different maternity periods in different Member States and the contention that the consequence of adopting such periods would be “bizarre” is of no legal merit;

 

(f) the reference to “the specific circumstances of the case in the main proceedings” normally means that a fact-sensitive proportionality exercise should be carried out; in any event, the specific facts of Saint   Prix should not be used as a template into which all future cases must fit. Ms Saint Prix’s hand may have been forced (given she had been refused benefits) into returning to work three months after giving birth, the very thing EU law has been at pains to prevent;

 

(g) the fact that the income support rules were mentioned as at [31(c)] above merely emphasises that the Court chose not to treat the benefit rules as determinative; and

 

(h) reliance continues to be placed on Article 16(3) for the reasons at [45] of Saint Prix and because unless the “reasonable period” were the same as that in Article 16(3), a woman would be forced to leave the UK   in order to maintain continuity of residence in the host Member State, something which would arrest her integration into the host Member State.  The Article 16(3) period is, moreover, wholly unaffected by national social security provision.

 

33. I have already indicated my view that in [42] of Saint Prix the CJEU was requiring fact-specific consideration of any case in which the issue arose.  If I were to be wrong in that view and the Court is to be taken as requiring specific consideration of the facts of Saint Prix, that does not materially advance matters for the reasons at [32(f)]. 

 

34. As regards the submission that the 11+15 period derived from social security law should be adopted, there is considerable force in the submission that the CJEU had every opportunity for the reasons at [32(g)] to adopt a basis derived from national social security law, but adopted a different one and indicated in specific terms what that different period should be.  The CJEU must be taken to have known both that the 1992 Directive was not a fully harmonising Directive and to have been aware of its caselaw, i.e. the Sass case. It is by no means unusual, not least in relation to social security matters, for the effects of EU law to be felt differently in different Member States, depending on what national measures exist.  The argument that if the Court had meant that the period for Saint Prix rights was that of maternity leave as provided for by national law it could have said so is met by the point that the Court was mandating a more nuanced approach which, conceptually, might result, through consideration of the facts of the specific case, in a different period from that of the maternity leave periods under the 1992 Directive (even if in practice such a situation might occur only rarely).  While I accept that the Court was concerned with the “immediate aftermath” or “aftermath” of childbirth, the extent of the “aftermath” is a matter of judgment and what the Court evidently had in mind was to leave it, at any rate as a starting point, to the national legislators, as reflected in their consideration of the proper extent of maternity leave.  Notwithstanding the discrepancies between Member States, the Court has plainly said that is what is to be taken into account.

 

35. I therefore conclude that in the UK the “reasonable period” for the purposes of a Saint Prix right is to be determined taking account of the 52 week period of OML and AML and of the circumstances of the particular case.  As a matter of practice rather than of law, it seems likely that it will be an unusual case in which the period is other than the 52 week period.

 

36. While [45] of Saint Prix clearly places weight on Article 16(3) in concluding that a Saint Prix right exists, I do not accept Mr Berry’s submission that that provision is relevant in determining the length of the “reasonable period”.  As has been seen, the terms of the CJEU’s judgment clearly allow for differing periods in different Member States, most of which will not be of 52 weeks (or 12 months) duration.  However, he does not need this point in order to succeed.

 

37. Nor does he need the point in [32(d)] above based on the avoidance of discrimination between those on a fixed term contract which had been terminated and those on continuing employment contracts. The point was not greatly developed before me and I prefer to express no view upon it.

 

Does a woman have to return to work (or find another job) or will a return to jobseeking suffice?

 

38. It will be recalled that in Saint Prix [47] the Court said:

 

“Article 45 TFEU must be interpreted as meaning that a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth retains the status of ‘worker’, within the meaning of that article, provided she returns to work or finds another job within a reasonable period after the birth of her child.”

 

39. As indicated at [25] above, the reference to “seeking work” at the beginning of a “reasonable period” includes at least those who comply with Article 7(3). The way in which the Court has expressed the proviso, if taken literally, suggests that there must have been a return to actual work (whether at the previous, or another, job) by the end of it.  That would be a surprising construction and it is not one for which Ms Clement contends.  Her submission is that the expression “returns to work or finds another job” extends to the situation where a person retained worker status under Article 7(3)(b) or (c) of the Directive at the start of the period and returned to work-seeking within the meaning of those provisions (Ms Clement goes on to add “as transposed by the Regulations”: I have dealt with that as a general point at [12] above.)  The reason, she submits, correctly in my view, is that if a woman with rights under Article 7(3)(b) or (c) had to find a job within the reasonable period after childbirth rather than merely returning to qualifying work seeking, then she would have to do more as the result of leaving the labour market temporarily because of pregnancy and the aftermath of childbirth than if she had remained as a person with retained worker status under Article 7(3)(b) or (c).

 

40. As to the position of someone who enters the reasonable period as a worker because of having a job, it is possible that that job may, for lawful or unlawful reasons, come to an end while a woman is in the reasonable period (as in CS’s case)..  I can see no principled reason why she, too, should not be able to demonstrate her return to the employment market by complying with the conditions of Article 7(3)(b) or (c); otherwise, as with the woman with retained worker status, more would be being asked of her because of her having temporarily left the employment market because of pregnancy and the immediate aftermath of childbirth.

 

41. In my view the CJEU’s reference in [41] of Saint Prix to a condition that a woman “returns to work or finds another job” can be explained, as Mr Berry suggests, by the fact that it was known that Ms Saint Prix had done just that.  It is also in my view intrinsically unlikely that in a decision reasserting the primacy of Article 45 TFEU as the source of rights, the Court was intending to cut down on the rights already conferred pursuant to that Article.

 

42. Mr Berry and Mr Rutledge point out that many of the women needing to rely on Saint Prix rights will have insecure working arrangements, for instance as agency workers or on temporary, flexible or zero-hour contracts and may well not have their job to return to at the end of the Saint-Prix period.  Their argument is in essence for the conclusion I have reached in the preceding paragraphs.

 

43. As something of a postscript to their submissions on the point Mr Berry and Mr Rutledge refer to the decision of Upper Tribunal Judge White in SSWP v MM (IS) [2015] UKUT 128 (AAC) which was issued shortly after the oral hearing in the present case.  Their submission is that insofar as the approach of the Secretary of State and Judge White differ, the latter is to be preferred.  I have not invited a submission in response on MM, as it does not engage with the Saint Prix decision.  Briefly, the claimant had achieved worker status through working and then retained it under Article 7(3) through seeking work until, on 19 June 2011 she became in receipt of maternity allowance. Her daughter was born on 18 September 2011 and her maternity allowance ended on 17 March 2012. On 19 March 2012 she claimed income support as a lone parent.  Let it be assumed from the maternity allowance claim in the absence of any suggestion otherwise that she met the gateway to a Saint Prix right of giving up seeking work because of the physical constraints of the late stages of pregnancy.  On the basis then that she would have had a Saint Prix right, it would have lasted, on my view, for a period which took account of the specific circumstances of her case and the 52 week OML and AML period.  The case contains only limited discussion of her specific circumstances at that time but, on the basis there was no particular reason to suppose that a shorter period than the 52 week period would be appropriate for the reasonable period, her claim for income support, made 9 months after she stopped seeking work, fell within it.  There is some indication in the papers that a return to seeking work was envisaged, although the timescales are not entirely clear.  Whether, if it did not occur before 52 weeks from the start of the maternity allowance period (and hence on my assumptions before the end of the reasonable period), she would have continued to be entitled to income support may be doubted, but was not the question before Judge White.  It follows that while with the benefit of the submissions that have been put to me on the Saint Prix case, I might have chosen to express myself in somewhat different ways from those chosen by Judge White, I entirely agree with the result. I do not, however, consider that the MM case affects my conclusions in the present case, in that MM was reached without reference to the Saint Prix decision.

 

Can a Saint Prix right count for Article 16 purposes?

 

44. As to whether a Saint Prix right can contribute to the period of time needed to acquire a right of permanent residence under Article 16 of the Directive, it is not disputed that it can.

 

The individual cases

 

45. I now turn to the consequences for the individual claimants.

 

SFF

 

46. So far as material, the facts are as follows.  SFF is a Portuguese national, who at the age of 7 entered the UK with her mother.  Between December 2008 and May 2009 SFF worked full-time as a cleaner.  The circumstances in which that employment came to an end are not known.  In May 2009 she became pregnant.  On 5 May 2009 she claimed jobseeker’s allowance (“JSA”).  Between 5 May 2009 and 30 November 2009 (or 11 December 2009 – it is not material) she was in receipt of JSA.  On 9 December (a date 11 weeks before her expected date of confinement) she applied for income support, on the advice of jobcentre staff.  On 13 January 2010 the decision under appeal was taken refusing her income support.  On 23 March 2010 her son was born.  For the sake of completeness (though it is not strictly relevant) she remained on income support until 29 April 2013, only then returning to full-time work.

 

47. On 8 December 2010 the First-tier Tribunal allowed SFF's appeal on two bases, the second of which was that it would be disproportionate to deny a right of residence under Article 18 TFEU to SFF, given that she had entered the UK when aged 7 with her mother.  The first ground was acknowledged by the First-tier Tribunal judge to have been in error in a statement of reasons issued on 15 November 2012, but the decision stood on the other ground.  Upper Tribunal Judge Jacobs gave the Secretary of State permission to appeal on 22 February 2013 and the case was stayed, pending a number of potentially relevant decisions of the CJEU, including that in Saint Prix. SFF’s solicitors submitted (a) that the appeal against the tribunal’s decision on proportionality should be dismissed as not involving an error of law and/or (b) that the decision of the First-tier Tribunal should be affirmed on other grounds, namely the rights said to accrue to SFF pursuant to Saint Prix.

 

48. It is not in dispute that SFF’s work was genuine and effective.  Nor does the Secretary of State now seek to dispute that she retained worker status under Article 7(3) and/or regulation 6 of the Immigration (EEA) Regulations: she successfully claimed JSA and the Secretary of State cannot point to anything to gainsay such a conclusion.  It would be wrong to speculate as to the reasons why jobcentre staff directed SFF towards income support rather than JSA, a step which at that time exposed an EEA national to a good deal of legal uncertainty.  But, in the absence of any reason to suppose otherwise, it must in my view be inferred that that step, taken at 11 weeks before the expected date of confinement and so at the beginning of the “11+15 period” discussed above, represented an acknowledgment on behalf of the Secretary of State that the physical constraints of the late stages of pregnancy entitled her to give up looking for work as she had, ex hypothesi from her previous receipt of JSA, previously been doing.  She thus entered, as a person with retained worker status, the reasonable period and was in it at the date of the DWP’s decision under appeal.  There is no evidence before me that as at that date she had no intention of returning to the labour market.  As Ms Clement submits, the significance of the point would not at the time have been apparent, but the Secretary of State is prepared to treat SFF as if she had expressed an intention to return to work at the end of the reasonable period.  On that basis, she was entitled to the benefit of the Saint Prix judgment as interpreted in the present decision, at the date of the DWP’s decision.

 

49. It is now known that SFF did not return to work until 29 April 2013, nor to registered work seeking before that point.  That date was more than 2 years and 4 months after the end of the reasonable period, as I have held it to be.  If the Secretary of State in due course wishes to assert that on that or some other ground SFF’s Saint Prix rights came to an end and that the income support paid to her thereafter was an overpayment, that will have to be the subject of a separate decision which will carry its own appeal rights.

 

50. While SFF has thus succeeded in establishing that she had Saint Prix rights at the date of decision and thus that the decision of the First-tier Tribunal should be affirmed on other grounds in any event, it is thus possible that such rights may come to be lost again.  Her alternative submission, that the First-tier Tribunal’s decision on proportionality should be upheld, would give her a stronger right.  Further consideration of that point will have to await the decision of the Supreme Court in Mirga v Secretary of State for Work and Pensions, where the Court is understood to be awaiting the decision of the CJEU in C-67/14 Alimanovic.  I therefore make the order in the terms set out above in relation to that part of the appeal.

 

ADR

 

51. ADR is a national of the Netherlands.  It is not in dispute that she exercised qualifying rights of residence from 1 September 2004 to 19 April 2009, first as a student and subsequently through three periods of work, with two short periods on JSA.  On 19 April 2009 she successfully claimed maternity allowance.  Her child was born on 24 June 2009.  On 16 January 2010 her maternity allowance ceased.  On 17 January 2010 she claimed and received JSA, which continued to 1 February 2011.  On 2 February 2011 she claimed income support and on 17 February 2011 was refused it.  On 30 September 2011 the First-tier Tribunal dismissed her appeal on the basis that she had never qualified for a right of permanent residence, as she had never accumulated more than 4 years and 8 months of residence under the Directive and she therefore lacked that or any other right to reside at the date of her claim for income support.

 

52. As noted at [26], in the absence of contrary evidence, the start of the maternity allowance period may be taken as an acknowledgment that at that point it was reasonable for the claimant to stop seeking work because of the physical constraints of the late stages of pregnancy.  In this case, not merely is there no indication that she had no intention of returning to the labour market, but the chronology of this case means that it was known by the date of the decision what had actually happened: she had returned to successfully claiming JSA 39 weeks after the start of the reasonable period.  In those circumstances she had a Saint Prix right at least for some months after January 2010.  It is not necessary to be any more specific as by 1 September 2009, when she was 4 1/2 months into the period, she had clocked up the necessary 5 years for a right of permanent residence (see [44] above).

 

CS

 

53. CS is an Italian national. She entered the UK in September 2007 and worked in a series of jobs, the last of which was from November 2010 under a one year fixed term contract.  On 1 April 2011 she commenced a period of maternity leave and was awarded maternity allowance (I am not clear why she was not paid statutory maternity pay, but it does not matter).  Her child was born on 23 May 2011.  On 28 July 2011 she applied for housing benefit and council tax benefit as a single person.  By a decision of 15 August 2011, as subsequently revised, she was successful.  A letter dated 12 September 2011 from her solicitors noted that she intended to return to work when her maternity allowance ended (as did a subsequent letter dated 21 November 2011).  On 24 October 2011, her contract of employment expired. By a decision of 25 November 2011, the local authority terminated the award of housing benefit and council tax benefit from 31 October 2011.  That was the first of the decisions under appeal to the First-tier Tribunal.

 

54. On 29 December 2011 CS’s award of maternity allowance came to an and she successfully claimed contribution-based JSA.  On 5 January 2012 she made a fresh application for housing benefit and council tax benefit.  That application was rejected by a decision dated 12 January 2012.  That was the second decision under appeal to the First-tier Tribunal.

 

55. It is common ground that CS remained a worker until 24 October 2011.  Again in the absence of any suggestion otherwise, it is reasonable to infer that when she stopped work, only 7 ½ weeks before her child was born, she did so because of the physical constraints of the late stages of pregnancy.  As I have concluded above that the “reasonable period” in the absence of fact specific special circumstances (of which I have been made aware of none) is 52 weeks, it did not expire until 31 March 2012.  Both the local authority’s decisions under appeal therefore fell to be taken while the period was still running.  Her circumstances and the first letter from the solicitors suggest that as at the date of the first decision she did not have any intention of withdrawing from the labour market once the “reasonable period” had expired.  Before it came to an end, and indeed before the second decision, CS had commenced registered work-seeking.  As indicated in [40] above, there is no reason why a person who could have availed themselves of Article 7(3)(b) or (c) had maternity not intervened should not also be able to do so with the benefit of the Saint Prix period where it applies, thus CS having gone into it as a worker could emerge from it with retained worker status.

 

56. Mr Berry further submitted that receipt of maternity allowance is a “social advantage” and that it was necessary to have a right of residence so as not to be unlawfully deprived of it.

 

57. He also submitted that maternity allowance and housing benefit paid to a person in CS’s circumstances are benefits paid to facilitate access to the labour market and so, by analogy with the benefits in issue in C-22/08 and C-23/08 Vatsouras and Koupatantze, could not be denied because of the prohibition on discrimination contained in Article 45(2) TFEU.  The status of another benefit other than JSA in this regard (employment and support allowance) is to be considered by the Court of Appeal in Alhashem v SSWP in March 2016.

 

58. Mr Berry needs neither of the submissions in [56] and [57] nor various ancillary challenges to the First-tier Tribunal’s decisions in order to succeed and I say no more about them.

 

59. Ms Clement submitted that there had been undue delay in CS re-establishing her link with the labour market, but that submission was predicated on the 11+15 period applying and so, on what I have decided in that regard, it falls away.

 

60. Because it is desirable to continue to make every effort to move these cases forward bearing in mind the other cases stayed behind them, I abridge the time limit for applying for permission to appeal in rule 44(3) of the Upper Tribunal’s rules from 3 months to 6 weeks.  That is not intended to prejudice a party’s ability to apply for the time limit to be extended again if good reason to do so can be shown but in the absence of exceptional circumstances any such application must be made before the abridged time limit expires.

 

 

CG Ward

Judge of the Upper Tribunal

10 September 2015