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Cite as: [2015] UKUT 533 (AAC)

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RO v Secretary of State for Work and Pensions (DLA) (Residence and presence conditions : right to reside) [2015] UKUT 533 (AAC) (15 May 2015)

IN THE UPPER TRIBUNAL Appeal No. CJSA/3380/2014

(ADMINISTRATIVE APPEALS CHAMBER)

BEFORE JUDGE WEST

DECISION

The decision of the appeal tribunal sitting at Bristol dated 30 December 2013 under file reference SC186/13/05830 involves an error on a point of law. The appeal against that decision is allowed and the decision of the appeal tribunal is set aside.

The decision of the appeal tribunal is remade. As at 22 August 2013 the claimant had a right to reside in the United Kingdom pursuant to regulations 6(1)(a) and (4) and 14(1) of the Immigration (European Economic Area) Regulations 2006 (“the I(EEA) Regulations”). As at that date he was not habitually resident in the United Kingdom as required by regulation 85A(1) of the Jobseeker’s Allowance Regulations 1996 (“the JSA Regulations”) nor was he a “worker” for the purposes of Council Directive No.2004/38/EC within regulation 85A(4)(a) of the JSA Regulations. He was not therefore entitled to jobseeker’s allowance as at 22 August 2013. The appeal is accordingly dismissed.

This decision is made under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

REASONS

1. This is an appeal, with the permission of Tribunal Judge Walker, against the decision of the appeal tribunal sitting at Bristol on 30 December 2013.

2. I shall refer to the appellant hereafter as “the claimant”. The respondent is the Secretary of State for Work and Pensions. I shall refer to him hereafter as “the Secretary of State”. I shall refer to the tribunal which sat on 2 July 2014 as “the appeal tribunal”.

The Facts

3. The claimant, who was born on 14 July 1985, appeals through his representative, Mr Andrew King of Avon & Bristol Law Centre, against the decision dated 30 December 2013, dismissing his appeal and confirming the original decision of 22 August 2013, that he was not entitled to jobseeker’s allowance from 7 August 2013 because at that date he was neither actually, nor fell to be treated as, habitually resident in the United Kingdom from that date.

4. His appeal, which was made on 3 September 2013 (pages 8 to 9), came before the appeal tribunal on 30 December 2013, having been adjourned on 29 November 2013 to allow the claimant to attend with an interpreter (page 24). The decision had been reconsidered, but not revised on 26 September 2013 (page 17). The claimant attended the hearing and gave evidence through the interpreter; he also had the benefit of a written submission prepared by Mr King. The appeal was dismissed. The record of the proceedings appears at page 29. The notice of decision appears at page 30. The appeal tribunal’s statement of reasons appears at pages 32 to 35.

5. The claimant then sought permission to appeal from the Tribunal Judge on 9 May 2014 (at pages 36 to 37). Permission to appeal was granted by Tribunal Judge Walker on 9 June 2014 (at pages 38 to 39). The claimant notified the Upper Tribunal of the grant of permission to appeal on 24 June 2014 (at pages 40 to 46).

6. Given that permission to appeal had already been granted, Judge Knowles QC made further directions on the appeal on 24 October 2014 (page 50). She made directions for the Secretary of State to provide a response within one month after the date on which the notice of permission to appeal was sent to the parties. The claimant was to be given an opportunity to submit a response within one month thereafter.

7. The Secretary of State made his further submissions on 24 November 2014 (which appear at pages 81 to 83), but did not support the appeal. The claimant replied on 9 January 2015 (at pages 71 to 72). Judge Farbey QC permitted the Secretary of State to make any additional submission on 22 April 2015 (page 72), but he decided not to do so on 28 April 2015.

8. Neither party has requested an oral hearing and I do not consider that it is necessary to hold one in order to determine this appeal.

The Statement of Reasons

9. So far as is material, the appeal tribunal stated in its statement of reasons:

“6. [The claimant] was born on 14.7.85, and is aged 28. He is an Italian national, and arrived in the United Kingdom on 18/5/13, having finished his studies in Italy, where he had completed a degree in communication studies. He had previously worked in Germany from May to October 2009 and in Belgium from September 2009 to September 2010.

7. He started to look for work on arrival, having taken no steps to find work before he arrived. He started looking for work in Italian restaurants, and then went to the job centre, thinking he would receive help in finding work.

8. He moved into rented accommodation after 6 days in the United Kingdom. He shares a flat with three other people, and all are signatories to the tenancy agreement.

9. [The claimant] had taken no steps to arrange his accommodation prior to his arrival in the United Kingdom. He had decided to move to the United Kingdom whilst studying in Italy, having previously studied for the Erasmus project in Belgium, an exchange program run by the European Union. His studies ended in April 2013.

10. [He] had decided to remain in the United Kingdom for at least one year, the length of his tenancy agreement.

11. [He] registered with his GP in December of 2013. He had not registered with a GP at the date of decision.

12. At the date of the Tribunal hearing, [the claimant] had no intention of returning to Italy, as he likes England, English culture and Bristol. He believes there is a better chance of his being able to find work in the United Kingdom.

13. At the date of the appeal hearing, [he] was working in a shop, for 30 hours each week.

14. [He] submitted his claim for jobseekers allowance on 7.8.13, less than three months after his arrival in the United Kingdom. A decision was made to refuse his claim on 22.8.13.

Reasons

15. The law and rules in respect of the issue of "Right to reside" are extremely complicated. They are set out in full in the appeal bundle. These laws and rules relate to a right to claim a benefit, not the right to remain living in the United Kingdom.

16. A basic condition of entitlement to Jobseekers Allowance is that the claimant is habitually resident in the United Kingdom, Channel Islands, Isle of Man or the Republic of Ireland. Otherwise, subject to a number of exceptions, a potential claimant is deemed to be a "Person from abroad", and the amount of allowance then payable is nil.

17. [The claimant] is an Italian national. He does not therefore fall to be treated as a UK national.

18. AII EEA nationals are entitled to live in the UK for an initial period of three months as long as they hold a valid passport or national identity card. However, in order to qualify for a means tested benefit, an extended right to reside must be established.

19. As [the claimant] is not the primary carer for an EEA national or British Citizen resident in the UK, there is no question of him obtaining a derivative right to reside, he is not a "Worker", neither is he self employed, for the purposes of Council Directive 2004/38/EC. He is not an accession state worker, refugee, been granted exceptional leave to remain, or a person from Zimbabwe.

20. There was no evidence before the Tribunal that suggested that [he] was an "Exempt person" for the purposes of the appeal.

21. On the date that he applied for Jobseekers Allowance, [the claimant] had lived in the UK for less than three months. At the date of decision, [he] had lived in the United Kingdom for just over 3 months.

22. [The claimant] had previously been studying for his master’s degree, and at the time of decision did not work, and he had not worked in the short time that he had been living in the UK.

23. [He] was not self sufficient. He has not lived in the UK for five years. He had not previously resided in the United Kingdom. In fact, the Tribunal noted that [he] had a history of moving around the European Union for the purposes of studying and working.

24. To establish habitual residence something more than physical presence is required. It is settled law that the question of habitual residence is decided by reference to all the circumstances of an individual case. It is a question of fact, not law.

25. An appreciable period of time is required to show habitual residence, and this should be a period which demonstrates a settled and viable pattern of living as a resident.

26. At the time of his claim and the later decision, [the claimant] had lived in the United Kingdom for a little more than three months. He had made no effort to look for work prior to his arrival, or to obtain accommodation, and seemed committed to staying in the United Kingdom for no more than a year. At the time of decision, he had not registered with a GP.

27. Considering all of the facts found as set out above, the Tribunal concluded that [the claimant’s] residence in the United Kingdom had not, at the date of decision, continued for a sufficient period for it to be said to be habitual.

28. The Tribunal considered all of the evidence provided in this case very carefully. For the reasons set out above, the appeal was dismissed.”

Permission to Appeal

10. In giving permission to appeal, Judge Walker summarised the terms of regulations 85A(1), (2) and (4) of the Jobseeker’s Allowance Regulations 1996 and regulations 6 and 14 Immigration (European Economic Area) Regulations 2006 (as to which see below) and added

“7. In SSWP v. RR [2013] UKUT 21 AAC the Upper Tribunal determined that a jobseeker was a worker for the purposes of Article 39 TEC.

8. Whether a person is habitually resident is essentially a question of fact. On the assumption that the tribunal was justified in its conclusion that the appellant was not habitually resident, the appeal raises the issue of the relationship between Regulations 14 and 6 of the Immigration (EEA) Regulations 2006 and Reg 85A of the JSA Regulations and the precise scope of the decision in SSWP v. RR [2013] UKUT 21 AAC”.

The Relevant Legislation

11. By virtue of section 4(3) of the Jobseeker’s Act 1995, where a person satisfies the conditions of entitlement to a jobseeker’s allowance, the amount payable, in the case of an income-based allowance, is the applicable amount or the difference between his income and the applicable amount.

12. Under regulation 85(1) and Schedule 14 paragraph 5 of the Jobseeker’s Allowance Regulations 1996 (“the JSA Regulations”) the applicable amount of a claimant who is a person from abroad is nil.

13. Under Regulation 85A of the JSA Regulations, in the form applicable as at the date of the decision on 22^nd August 2013, it was provided that

“(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; or

(aa) regulation 15A(1) of those Regulations, but only in a case where the right exists under that regulation because the claimant satisfies the criteria in regulation 15A(4A) of those Regulations;

(b) Article 6 of Council Directive No. 2004/38/EC; or

(c) Article 20 of the Treaty on the Functioning of the European Union (in a case where the right to reside arises because a British citizen would otherwise be deprived of the genuine enjoyment of the substance of their rights as a European Union citizen).

(4) A claimant is not a person from abroad if he is–

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

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

(d) a person who is a family member of a person referred to in sub-paragraph (a), (b) or (c) within the meaning of Article 2 of that Directive;

(e) a person who has a right to reside permanently in the United Kingdom by virtue of Article 17 of that Directive;

(f) a person who is treated as a worker for the purpose of the definition of “qualified person” in regulation 6(1) of the Immigration (European Economic Area) Regulations 2006 pursuant to

(i) …

(ii) regulation 6 of the Accession (Immigration and Worker Registration) Regulations 2006 (right of residence of a Bulgarian or Romanian who is an “accession State national subject to worker authorisation”);

(g) a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28^th July 1951, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31^st January 1967);

(h) a person who has exceptional leave to enter the United Kingdom granted outside the rules made under section 3(2) of the Immigration Act 1971;

(hh) a person who has humanitarian protection granted under those rules;

(i) a person who is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act and who is in the United Kingdom as a result of his deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom; or

(j) a person in Great Britain who left the territory of Montserrat after 1^st November 1995 because of the effect on that territory of a volcanic eruption.

(k) a person who –

(i) arrived in Great Britain on or after 28^th February 2009 but before 18^th March 2011;

(ii) immediately before arriving there had been resident in Zimbabwe; and

(iii) before leaving Zimbabwe, had accepted an offer, made by Her Majesty’s Government, to assist that person to move to and settle in the United Kingdom.

14. Regulation 6 of the Immigration (European Economic Area) Regulations 2006 (“the I(EEA) Regulations”) as at that date provided that.

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

(a) a jobseeker;

(b) a worker;

(d) a self-sufficient person; or

(e) a student.

(2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if—

(a) he is temporarily unable to work as the result of an illness or accident;

(b) he is in duly recorded involuntary unemployment after having been employed in the United Kingdom, provided that he has registered as a jobseeker with the relevant employment office and—

(i) he was employed for one year or more before becoming unemployed;

(ii) he has been unemployed for no more than six months; or

(iii) he can provide evidence that he is seeking employment in the United Kingdom and has a genuine chance of being engaged;

(d) he has voluntarily ceased working and embarked on vocational training that is related to his previous employment.

(3) A person who is no longer in self-employment shall not cease to be treated as a self-employed person for the purpose of paragraph (1)(c) if he is temporarily unable to pursue his activity as a self-employed person as the result of an illness or accident.

(4) For the purpose of paragraph (1)(a), “jobseeker” means a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged”.

15. Regulation 14 of the I(EEA) Regulations as at that date provided that

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

(2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national.

(3) A family member who has retained the right of residence is entitled to reside in the United Kingdom for so long as he remains a family member who has retained the right of residence.

(4) A right to reside under this regulation is in addition to any right a person may have to reside in the United Kingdom under regulation 13 or 15.

(5) But this regulation is subject to regulation 19(3)(b)”.

The Preconditions for an Award of Jobseeker’s Allowance

16. The combined effect of regulation 85A(1) and (2) of the JSA Regulations is that a claimant must prove that he has a right to reside and that he is habitually resident within the jurisdiction in order to qualify for jobseeker’s allowance. Under regulation 85A(2) a claimant is not to be treated as habitually resident unless he has a right to reside (other than a right to reside falling with sub-paragraph (3), which does not apply on the facts of this case).

17. Under sub-paragraph (4) a claimant is not be treated as being from abroad if he falls within any of the categories set out in sub-sub-paragraphs (a) to (k). In this case the question is whether he falls within sub-paragraph (a) as a “worker” for the purposes of Council Directive No.2004/38/EC. If he does not, then he must go on to demonstrate that he has a right to reside and is habitually resident so that he is not a “person from abroad” and as such automatically precluded from entitlement to jobseeker’s allowance. If he does fall within sub-paragraph (a), he is not a “person from abroad” and in his case the applicable amount is not nil, so that he has an entitlement to jobseeker’s allowance.

The Right to Reside

18. On the facts of this case the claimant does have a right to reside (other than under paragraph 85A(3)) by virtue of regulation 6(1)(a) and (4) and regulation 14(1) of the I(EEA) Regulations. He is a “qualified person” because he is a jobseeker within regulation 6(1)(a) in that he entered the United Kingdom in order to seek employment and could provide evidence that he was seeking employment and had a genuine chance of being engaged (see paragraph 7 of the statement of reasons) (I shall deal below with the fact that he obtained employment subsequent to the date of the decision and its relevance to the facts of this case in the context of habitual residence). As a “qualified person” he had an extended right to reside and was entitled by virtue of regulation 14(1) to reside in the United Kingdom as long as he remained a qualified person.

19. To the extent that the appeal tribunal (a) conflated the requirement of a right to reside with habitual residence (which it appears to have done in paragraph 15) and (b) found that he did not have a right to reside in the United Kingdom (which it appears to have done in paragraph 18), it fell into an error of law and its decision cannot be upheld in that respect.

Habitual Residence

20. In R(IS) 6/96 Mr Commissioner Howell QC (as he then was) explained habitual residence as follows:

“18. The context in which the test of habitual residence was introduced for income support suggests that it was intended to be an objective test, consistent with our Community obligations as well as with existing United Kingdom law … Hence the test focuses on the fact and nature of residence here and not on the legal right of abode ...

19. Logically the first point to clear out of the way is that the person who is not resident in this country at all cannot become habitually resident. Residence to my mind embodies a more settled state than merely physical presence in a country, so that a person who is a short stay visitor, or has come here for an operation or to receive medical treatment other than long-term care, is neither resident nor habitually resident. To count as resident, a person must be seen to be making a home here, even though it need not be his or her only home, nor need it be intended to be a permanent one, provided that it is genuinely home for the time being.

20. Whether a person who has established residence in a particular country has also become habitually resident in it is a question of fact, to be decided by reference to all the circumstances of the particular case: Re J (a minor) [1990] 2 AC 562 at 578G. In the absence of any statutory definition the expression, like the expression “ordinarily resident” considered in Shah’s case, should take its meaning from ordinary and natural usage and should not be given a specialised meaning, still less a variety of different specialised meaning, when used in legal contexts.

21. The most important factors to be looked at in deciding whether a person has become “habitually resident” in this country as a matter of ordinary usage are in my judgment, the length, continuity and general nature of his or her actual residence here, rather than his or her intentions as to the future. A habit is not established in a day … Time must elapse before it can be seen that his presence as resident there has in fact become habitual ... An appreciable period of time, as well as settled intention, will be necessary to enable him or her to become so. During that appreciable period of time, the person will have ceased to be habitually resident in the first country, but not yet have become habitually resident in the second.

28. What counts as an “appreciable time” for this purpose must depend on the facts of each individual case. At the risk of some circularity I would say it must be the kind of period which demonstrates according to the good sense and judgment of the tribunal a settled and viable pattern of living here as a resident, of the kind which would lead in normal parlance to the person being described as an habitual resident of this country …

29. I have used the word “viable” because it seems to me that the practicality of a person’s arrangements for their residence is a necessary part of determining whether it can be described in ordinary usage as settled and habitual. In particular, in determining whether a person’s plans for living in this country are viable, the possibility of claiming income support has to be left out of account, since otherwise one would be assuming the answer to the question that has to be decided. I do not mean that there must be no conceivable circumstances in which he or she might not need to resort to income support, since that would be a test hardly anyone could meet, but if the chances of his or her establishing and keeping up a home here at all are simply unrealistic unless bolstered by public assistance, such living arrangements cannot settled and viable.

30. I should add one word of caution to the last point. The need to demonstrate a settled abode in this country has become a requirement for persons arriving here from overseas, with the introduction of the habitual residence test. However the new regulations would not in my view justify extending the same requirement to established habitual residents of the British Isles so as to deprive them of income support. Every society that claims to call itself civilised accepts an obligation to provide a minimum level of support to its least fortunate members whatever their mode of life. The habitual residence test is concerned only with determining at what point recent arrivals are to be accepted as members of our society for this purpose. It does not mean that any existing members are to be excluded because they follow an alternative lifestyle or have no proper home at all.”

21. In Nessa v. The Chief Adjudication Officer [1998] 2 Al ER 728 Morritt LJ said at p.743:

“What is an appreciable period will depend on the facts of each individual case for all that is required is what is necessary to give to the fact of residence the quality of being habitual in accordance with the normal meaning of that word. There is no reason why … “the appreciable period” should be so long as to cause hardship or injustice.”

22. When that case reached the House of Lords at [1999] 1 WLR 1937 Lord Slynn said at pp.1942H-1943C

“… it seems to me plain that as a matter of ordinary language a person is not habitually resident in any country unless he has taken up residence and lived there for a period …

It is a question of fact to be decided on the date where the determination has to be made on the circumstances of each case whether and when that habitual residence had been established. Bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, seeking to bring family, "durable ties" with the country of residence or intended residence, and many other factors have to be taken into account.

The requisite period is not a fixed period. It may be longer where there are doubts. It may be short …

There may indeed be special cases where the person concerned is not coming here for the first time, but is resuming an habitual residence previously had ... This position is quite different from that of someone coming to the United Kingdom for the first time.”

23. In paragraph 25 the appeal tribunal correctly referred to the need to demonstrate presence within the jurisdiction for an appreciable time as a requirement of establishing habitual residence and that that period should be such as to demonstrate a settled and viable pattern of living as a resident. In paragraph 26 it explained that at the time of the claim and the later decision, the claimant had lived in the United Kingdom for a little more than three months, he had made no effort to look for work prior to arrival or to obtain accommodation, had not registered with a GP and crucially that he seemed committed to staying in the United Kingdom for no more than a year. It was submitted on the claimant’s behalf that that last finding was based on a misunderstanding of what he had said on the telephone, but there was evidence before the appeal tribunal on which it could have relied in reaching that conclusion in the form of the answer on page 11 of the HRTE Form V12 (“How long does the Claimant plan to stay in the UK?” “6 Months - 1 year”) and I cannot see that, in preferring the interpretation of the evidence which it did, that it fell in to an error of law.

24. Equally I do not accept that the appeal tribunal made an error of law in stating its findings in paragraph 26 and concluding that the claimant had not made out his claim to habitual residence on the facts in paragraph 27. It had correctly set out the test for habitual residence in paragraphs 24 and 25 and on the basis of those paragraphs had concluded that he had not established residence of an appreciable period of time and one which demonstrated that there was a settled and viable pattern of living as a resident. Nor do I accept that the second and third grounds of appeal are made out. The appeal tribunal was entitled to take into account the fact that the claimant had not secured employment or accommodation before he came to the country; the precise weight to be given to those factors was for the appeal tribunal to determine and I can detect no error of law in its approach. Similarly the appeal tribunal was entitled to take into account the fact that the claimant had hitherto resided in other EEA member states, as is apparent from paragraph 21 of the decision of Mr Commissioner Howell QC and the last paragraph from the speech of Lord Slynn cited above.

25. In his initial submissions the Secretary of State submitted that, in accordance with section 12(8)(b) of the Social Security Act 1998, in deciding an appeal the appeal tribunal could not take into account any circumstances not obtaining at the time when the decision appealed against was made. That is undoubtedly true. Thus it was said that the fact that the claimant had subsequently obtained a job could not be taken into account in deciding whether he had become habitually resident as at the date of the decision on 22 August 2013. However, a subsequent circumstance can be taken into account when considering whether the claimant’s stated intentions as at the date of the decision were genuine or for the purpose of drawing inferences as to the circumstances actually obtaining at the date when the decision was made. The fact that the claimant subsequently obtained a job could therefore have been taken into account in deciding whether the claimant had become habitually resident as at 22 August 2013, but in my judgment, given that the appeal tribunal had also found that the claimant intended to stay in the United Kingdom for no more than a year (as it was entitled on the evidence to find), it was inevitable that it would have found that eh was not habitually resident even if it had taken the job into account, the acquisition of which was not incompatible with an intention to stay in the county for no more than a year. Consequently any error of law on the part of the appeal tribunal was not material to its decision and is not be a ground for setting the decision aside.

SSWP v. RR(IS)

26. The claimant’s last ground of appeal was that at the dates of the claim and of the decision the claimant was within the first three months of residence in the United Kingdom, was registered as available for work, was actively seeking work and had reasonable prospects of finding employment (his later success in gaining employment soon afterwards being confirmation of the latter). The question therefore arose as to whether worker status was conferred on him by the decision in Secretary of State for Work & Pensions v. RR (IS) [2013] UKUT 21 (AAC). In other words, as explained in paragraph 17 above, if the claimant were to be treated as not being a person from abroad because he fell within regulation 85A(4)(a) as a “worker”, then in his case the applicable amount is not nil, so that he would have an entitlement to jobseeker’s allowance.

27. In RR a three–judge panel had to consider the case of a claimant who was a German national who had come to the United Kingdom in order to take up an offer of employment, but had not yet been able to take it up due to very particular circumstances (including requiring urgent treatment for breast cancer). She had therefore never worked in this country, although the offer of employment was kept open for her pending her recovery from the cancer treatment. The three-judge panel held that she had a right to reside under article 39(3)(a) and (b) of the Treaty on European Union as the holder of a job offer and so was a “worker” for the purposes of article 7(1)(a) (but not article 7(3)) of the Council Directive No.2004/38/EC. Thus she fell within regulation 21AA(4)(a) of the Income Support (General) Regulations 1987.

28. It can be seen that the case of the claimant is materially different from that of the claimant in RR who had come to the country in order to take up an offer of employment, but she was precluded from taking it up by a medical emergency, although the offer of the job was kept open for her pending her recovery from the treatment which she had received. By contrast, in this case the claimant had taken no steps to obtain work before he came to the country and at the date of the decision had not found work or even an offer of employment (although he was subsequently to do so).

29. It is also apparent that the argument in RR was based very specifically on the exceptional facts of the case and did not purport to deal with the situation of someone such as the claimant in the instant case:

“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.”

30. The tribunal expressly commented on the exceptional nature of the case and held in those circumstances that there was no exclusivity between the status of holder of a job offer and jobseeker:

“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.”

31. The tribunal ultimately held that:

“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.”

32. In case it was wrong about that conclusion, the tribunal held that there was an alternative basis on which RR had a right to reside:

“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 (C-413/99; [2002] ECR I-7091), 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).

33. It is therefore not correct to say, as Tribunal Judge Walker did in giving permission to appeal (at page 38), that in RR the Upper Tribunal determined that a jobseeker was a worker for the purposes of Article 39 of the European Treaty and the decision properly understood provides no support for that proposition.

34. However, the argument for the claimant in the instant case, although it is not articulated or fleshed out, is that the effect of RR goes beyond establishing worker status for 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, but extends to a person who has moved to and stays in another Member State for the purpose of looking for work i.e. a “jobseeker” (and see the commentary in volume II of the Social Security Legislation 2014/15 at para.2.197-2-198 (pp.334-335)).

35. This in the basis of certain paragraphs in the judgment of the European Court of Justice in Cases C-292/89 Antonissen [1991] ECR I-745, cited in RR, to the effect that

“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 v Staatssecretaris 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.”

36. It is, however, important to understand the context in which those remarks, particularly those in paragraph 13, were made. Mr Antonissen arrived in the United Kingdom in October 1984. He had not yet found work there when, on 30 March 1987, he was sentenced by the Liverpool Crown Court to two terms of imprisonment for unlawful possession of cocaine and possession of that drug with intent to supply. He was released on parole on 21 December 1987 and ordered to be deported. By means of the questions submitted to the Court for a preliminary ruling the national court essentially sought to establish whether it was contrary to the provisions of Community law governing the free movement of workers for the legislation of a Member State to provide that a national of another Member State who entered the first State in order to seek employment might be required to leave the territory of that State (subject to appeal) if he had not found employment there after six months.

37. The Court explained that

“9. In that connexion it has been argued that, according to the strict wording of Article 48 of the Treaty, Community nationals are given the right of move freely within the territory of the Member States for the purpose only of accepting offers of employment actually made (Article 48(3)(a) and (b)) whilst the right to stay in the territory of a Member State is stated to be for the purpose of employment (Article 48(3)(c)).”

In that event it is hardly surprising that it held in that context that

“10. Such an interpretation would exclude the right of a national of a Member State to move freely and to stay in the territory of the other Member States in order to seek employment there, and cannot be upheld”

and went on the make the observations in paragraphs 11 to 13.

38. The Court concluded that

“22. It must therefore be stated in reply to the questions submitted by the national court that it is not contrary to the provisions of Community law governing the free movement of workers for the legislation of a Member State to provide that a national of another Member State who entered the first State in order to seek employment may be required to leave the territory of that State (subject to appeal) if he has not found employment there after six months, unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged”,

but rightly held that

“20. … As the Advocate General has rightly observed, there is no necessary link between the right to employment benefit in the Member State of origin and the right to stay in the host State.”

39. Thus the remarks in question were made in the context of the right to stay in the host state; they had nothing to do with the entitlement to obtain state benefits in that state. They do not support the proposition that, for the purposes of jobseeker’s allowance, the distinction between “workers “ and “jobseekers” has been blurred, still less equiparated by the decision in RR and that the Upper Tribunal in RR determined that a jobseeker was a worker for the purposes of Article 39 of the European Treaty.

The Result on the Appeal

40. Accordingly, owing to the apparent errors in dealing with the right to reside, the claimant’s appeal against the decision is allowed and the decision of the appeal tribunal is set aside.

41. However, I am satisfied that it would not be appropriate to remit the matter to a differently constituted appeal tribunal for a complete rehearing and that I should deal with the matter be remaking the decision of the tribunal below.

42. I therefore remake the decision of the appeal tribunal as follows.

43. As at 22 August 2013 the claimant had a right to reside in the United Kingdom pursuant to regulations 6(1)(a) and (4) and 14(1) of the Immigration (European Economic Area) Regulations 2006 (“the I(EEA) Regulations”). As at that date he was not habitually resident in the United Kingdom as required by regulation 85A(1) of the Jobseeeker’s Allowance Regulations 1996 (“the JSA Regulations”) nor was he a “worker” for the purposes of Council Directive No.2004/38/EC within regulation 85A(4)(a) of the JSA Regulations. He was not therefore entitled to jobseeker’s allowance as at 22 August 2013.

44. Accordingly, albeit on somewhat different grounds from those of the appeal tribunal, the appeal is dismissed.

Signed Mark West

Judge of the Upper Tribunal

Dated 15 May 2015