Jessy St Prix v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton,Lady Justice Black,Lord Justice Ward |
| Judgment Date | 13 July 2011 |
| Neutral Citation | [2011] EWCA Civ 806 |
| Date | 13 July 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2010/2282 |
[2011] EWCA Civ 806
[2010] UKUT 131 (ACC)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
ADMINISTRATIVE APPEAL CHAMBER
UPPER TRIBUNAL JUDGE WARD
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Stanley Burnton and
Lady Justice Black
Case No: C3/2010/2282
Richard Drabble QC (instructed by Sarah Clarke, solicitor to the Child Poverty Action Group) for the Appellant
Jason Coppel and Denis Edwards (instructed by the Legal Group of the Department for Work and Pensions) for the Respondent
Hearing dates: 20, 21 June 2011
Introduction
This is the appellant's appeal against the decision of Upper Tribunal Judge Ward rejecting her claim to have been entitled to income support when she made her claim for it on 18 March 2008. As will be seen, the judge's decision, and ours on this appeal, turns primarily on the interpretation and effect of article 7.3 of Directive 2004/38/EC of the European Parliament and of the Council "on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States", commonly referred to as the Citizenship Directive. If Article 7.3 has the meaning for which the Secretary of State contends, the appellant contends that it is unlawfully discriminatory.
The judge formulated his decision as follows:
"The claimant is not to be treated as habitually resident in the UK for the purposes of her claim to income support made on 18 March 2008 because she did not at the material time have a right to reside in the United Kingdom. Therefore for those purposes she was a "person from abroad" with an Income Support applicable amount of nil."
For the purposes of this appeal, it is unnecessary to analyse the applicable Income Support Regulations, the effect of which is not in issue. The appellant is a French citizen. If, at the relevant time, she had had the right to reside in this country, she would not have been a "person from abroad", and would have been entitled to income support. If she had no such right, the judge's decision was correct. Thus, what appears to be a question of domestic UK social security law is determined by European law.
The appellant's primary claim is that she did have a right of residence conferred by the Citizenship Directive. That claim is the first issue we have to address. If that claim fails, we have to consider the appellant's contention that the Directive is unjustifiably discriminatory. If we are not satisfied that the interpretation of the Directive and the question of discrimination are acte clair, the question arises whether the Court should make a reference to the Court of Justice.
The facts
The relevant facts are short, and were admirably set out by the judge in his careful judgment:
"5. The claimant is a French national who came to the UK on 10 July 2006. She worked in various jobs in the UK from 1 September 2006 to 1 August 2007, most or all of which were as a teaching assistant. She enrolled on a Post-Graduate Certificate in Education (PGCE) course for modern languages at the Institute of Education, University of London, the envisaged period of study being 17 September 2007 to 27 June 2008. The tuition fees were funded by a student loan and she was supported by a bursary. She became pregnant, the expected date of confinement being 2 June 2008. Realising that she would have given birth prior to the end of her course she withdrew from her studies as of 1 February 2008. Her bursary payments ceased. She undertook agency work from 22 January 2008, hoping to find teaching assistant positions in secondary schools. None was available so she took agency positions working in nursery schools. By 12 March 2008 the demands of caring for nursery school children while some 6 months pregnant were proving too much and she stopped such work. The claimant looked unsuccessfully for lighter work for a few days before giving up doing so and on 18 March 2008 claiming income support, which was refused.
6. Her baby was born on 21 May 2008. Some three months later, the claimant resumed employment. Sadly, in May 2009, the baby died from a heart condition.
7. It is not in dispute that the posts that she held and the period of study were sufficient to make the claimant a "worker" for EU purposes as long as she held them, i.e. until 12 March 2008. Her claim of 18 March 2008 was rejected by a decision on 4 May 2008 on the basis that she lacked the right to reside and so her "applicable amount" for income support purposes was nil: see paragraph 17 of Schedule 7 to the Income Support (General) Regulations 1987/1967 ("the 1987 Regulations").…"
I note that there was no finding that the appellant gave up looking for work because she was unable to work.
The Directive
The Directive confers three rights of residence, of increasing duration. Article 6 confers on all Union citizens the right of residence on the territory of another Member State for a period of up to 3 months. Article 7 confers the right of residence for more than 3 months on Union citizens who fulfil the requirements it lays down. Article 16 confers the right of permanent residence on Union citizens who have resided legally for a continuous period of 5 years in a Member State of which they are not nationals. As I have indicated, and the facts require, we are concerned with the right of residence conferred by Article 7. I shall refer to that right as "the relevant right of residence". Article 7 is as follows:
"Article 7 Right of residence for more than three months
1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
(a) are workers or self-employed persons in the host Member State; or
(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or
(c) – are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and
– have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or
(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).
2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1 (a), (b) or (c).
3. For the purposes of paragraph 1 (a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:
(a) he/she is temporarily unable to work as the result of an illness or accident;
(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;
(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;
(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.
4. By way of derogation from paragraphs 1 (d) and 2 above, only the spouse, the registered partner provided for in Article 2 (2) (b) and dependent children shall have the right of residence as family members of a Union citizen meeting the conditions under 1 (c) above. Article 3 (2) shall apply to his/her dependent direct relatives in the ascending lines and those of his/her spouse or registered partner."
The parties' contentions in summary
For the Appellant, Mr Drabble QC submitted in summary:
(1) Article 7.1 confers the relevant right of residence on workers and self-employed persons. The appellant was a worker at the relevant time, albeit that, having become pregnant, she ceased work temporarily. Article 7.3 is not to be construed as a comprehensive definition of persons who, while not actually working, retain the status of a worker. Here, the appellant ceased work only days before she made her claim for income support, too brief a period for her to have lost her status as a worker and her right to reside in this country.
(2) If the appellant was not a worker for the purposes of Article 7, its provisions unfairly discriminate against pregnant women who as a result of pregnancy cannot work.
(3) Any doubt on these issues should lead this Court to make a reference.
For the Respondent, Mr Coppel submitted:
(1) Article 7 is and was intended to be a comprehensive provision. It was inherent in Article 7.3 that someone...
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