Upper Tribunal (Administrative Appeals Chamber)

JS v Secretary of State for Work and Pensions (IS) (European Union law - workers) [2019] UKUT 135 (AAC) (16 April 2019)

Reported as [2019] AACR 24

EU law - Right to reside - Whether `Saint Prix' retention of workers status may extend to other situations where claimant has needed temporarily to cease working - Correct approach to proportionality and lacuna filling after Mirga.

The appellant, a Dutch national came to the United Kingdom in November 2006. He had lived and worked continuously from 3 January 2007 to 23 February 2011. The appellant stopped working because Social Services became involved with his family and suggested that if he gave up his job they would not take the children into care. The appellant's claim for income support in March 2011 was refused on the basis that he did not have a right to reside in the United Kingdom. The First-tier Tribunal (F-tT) refused his appeal against that decision and held that the appellant was not a worker nor was he a jobseeker at the time of the claim. The F-tT gave the appellant permission to appeal to the Upper Tribunal (UT). The issue for the UT was whether the appellant's personal circumstances in March 2011 having given up his employment to care for his very young children conferred on him a right reside under EU law. This involved two arguments: (i) had the appellant remained a `worker' under EU law by analogy with the pregnant woman temporally unable to work in Saint-Prix, and (ii) was it a disproportionate application of the rights of residence arising under EU law to deny the appellant a right to reside?

Held, dismissing the appeal, that:

1. the correct approach to the two arguments involves first identifying whether the relevant legal instruments of EU community law dealing with rights of residence (a) cover the category of case in issue, in the sense of seeking to address the residence rights of those within the category(here, workers with children),but the individual fails to meet the qualifying criteria, or (b) EU law has failed accidentally to cover such a category of case (it has a gap or `lacuna' in it) and that gap needs to be filled. It is only in the latter circumstance in the context of the 2004 Directive that the proportionality exercise may come in to play, to fill the `gap'. Proportionality thus cannot be invoked as a stand-alone basis for having a right to reside in circumstances where the individual's situation is covered by the 2004 Directive but where he has failed on the facts to meet the qualification criteria in that Directive. This is because proportionality is built-in to the assessment of whether a right of residence arises under the detailed structure for identifying rights of residence set out in the 2004 Directive (paragraph 20);

2. Saint-Prix is not a `lacuna case (paragraph 28). Moreover, it provides no underpinning legal thesis for identifying other situations in which `worker' status may remain or be retained under Article 7(3) of the 2004 Directive on ceasing work (paragraph 30). It should be treated as being limited to the special circumstances with which it was concerned (paragraph 33);

3. one critical focus in Saint-Prix was on the woman returning to the labour market within a reasonable period after having given birth, and that period and the period needed out of work before giving birth may be relatively straightforward to define in each Member State, but the present case did not provide a similar ease of temporal definition (paragraph 35). Moreover, the condition of pregnancy as well as being time limited is easily definable both factually and legally, but the types of cases or situations where a claimant may have to cease work to care for a child are numerous and varied. (paragraph 36); and a parent who has left work and the labour market in order to care for her children does not retain her status as a `worker': per SSWP v Dias [2009] EWCA Civ 807 (paragraph 38);

4. recourse to proportionality did not assist the appellant either as there was no lacuna needing to be filled (paragraph 46); Article 7 of 2004 Directive has not sought to carve out a retention of the right of residence as a `worker' for the category of those who leave work and the labour market in order to care for children (paragraph 48); and other parts of EU law addressing residence rights for those with children had deliberately not sought to cover the appellant's circumstances (paragraph 49).

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