(1) Secretary of State for Work and Pensions (2) ADR (3) CS CIS 204 2013
| Jurisdiction | UK Non-devolved |
| Judge | Judge C G Ward |
| Judgment Date | 10 September 2015 |
| Neutral Citation | 2015 UKUT 502 AAC |
| Subject Matter | European Union law |
| Respondent | (1) SFF; (2) Secretary of State for Work and Pensions; (3) LB Barnet & Secretary of State for Work and Pensions |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CIS 204 2013 |
| Appellant | (1) Secretary of State for Work and Pensions (2) ADR (3) CS |
[2016] AACR 16
(Secretary of State for Work and Pensions v SFF, ADR v Secretary of State for Work and Pensions & CS v London Borough of Barnet & Secretary of State for Work and Pensions [2015] UKUT 502 (AAC))
Judge Ward CIS/204/2013, CIS/1288/2012
10 September 2015 CH/1312/2013, CH/1440/2013
European Union law – whether worker status retained when not employed in later stages of pregnancy – effect of CJEU judgment in Saint Prix
The three claimants, all European Union nationals, had been either working or job-seeking in the UK before claiming benefits because either they were in the late stages of pregnancy or in the aftermath of childbirth. The benefits claimed were subject to a “right to reside” test and consequently each claimant had to establish that she had “worker” status for the purposes of Article 45 of the Treaty on the Functioning of the European Union (TFEU). Worker status would have given two of the claimants the necessary “right to reside” at the time of their claim, while the issue for the third was whether she had previously enjoyed worker status and thus had the right of permanent residence under Article 16 of Directive 2004/38. Following the rejection of their respective claims they all appealed and eventually the cases came before the Upper Tribunal (UT) which initially stayed them pending the decision in Saint Prix, C-507/12, EU:C:2014:2007; [2014] AACR 18. The issues before the UT involved the interpretation and application of the decision in the Saint Prix case.
Held, allowing two of the appeals and deferring a decision on the third, that:
- the concept of “worker” within the meaning of Article 45 of TFEU had to be interpreted broadly. Fundamental to the question of worker status was whether the claimant was in the employment market. Late pregnancy and childbirth did not, of themselves, take a woman out of the employment market and outside Article 45. The issue was primarily the woman’s intention, subject to the special protection conferred in Saint Prix. Saint Prix did not create a condition precedent to the right coming into existence but, where it was not met, a condition subsequent for terminating the right. A woman was protected by her worker status until such time, not exceeding the “reasonable period” contemplated by Saint Prix, as she showed an intention not to be part of the employment market. The right approach practically and legally was that a woman retained worker status until there was reason to suppose otherwise. That was consistent with section 12(8)(b) of the Social Security Act 1998, which prevented a tribunal from taking into account “any circumstances not obtaining at the time when the decision appealed against was made”. The “circumstances obtaining” could properly include a woman's intention to return to work (paragraphs 19 to 24)
- Saint Prix rights were available, where the necessary conditions were met, to those who had exercised the right to freedom of movement for workers and had been employed in a Member State other than that of their residence. They were also available to those who, by meeting the conditions of Article 7(3) of Directive 2004/38/EC, retained worker status while looking for work. Accordingly, a person could enter the period of Saint Prix rights either having been employed immediately beforehand or having retained worker status pursuant to Article 7(3) (paragraph 25)
- the Saint Prix right started when the reason for “giving up work or seeking work” was “the physical constraints of the late stages of pregnancy and the aftermath of childbirth” (paragraph 26)
- the Saint Prix judgment allowed for differing periods in different Member States and a national court had to take account of all the specific circumstances of any case in determining the “reasonable period”. In the UK the “reasonable period” was to be determined taking into account the statutory 52-week period of ordinary and additional maternity leave and it would be an unusual case where the period was other than 52 weeks (paragraphs 18, 35 to 36);
- 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) at the start of the period and returned to work-seeking within the meaning of those provisions (paragraphs 38 to 43);
- a Saint Prix right could contribute to the period of time needed to acquire a right or permanent residence under Article 16 of the Directive; Saint Prix applied (paragraph 44).
Editor’s note: The decision in the third case was also allowed following the Supreme Court’s decision in Mirga v Secretary of State for Work and Pensions [2016] UKSC 1; [2016] AACR 26.
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
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, appeared for the claimants
Ms Joanne Clement, instructed by Department for Work and Pensions Legal Services, appeared for the Secretary of State.
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 Secretary of State for Work and Pensions, 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 Saint Prix, C-507/12, EU:C:2014:2007; [2014] AACR 18.
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 section 12(2)(b) of Tribunals, Courts and Enforcement Act 2007 I re-make 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 re-make 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 three months to six 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; [2014] AACR 18, 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...
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