Jessy St Prix v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Mance,Lord Neuberger,Lord Kerr,Lady Hale,Lord Reed |
| Judgment Date | 31 October 2012 |
| Neutral Citation | [2012] UKSC 49 |
| Date | 31 October 2012 |
| Court | Supreme Court |
[2012] UKSC 49
Lord Neuberger, President
Lady Hale
Lord Mance
Lord Kerr
Lord Reed
Appellant
Richard Drabble QC
(Instructed by Child Poverty Action Group)
Respondent
Jason Coppel
Denis Edwards
(Instructed by DWP/DH Legal Services)
Intervener (The Aire Centre)
Jemima Stratford QC
Charles Banner
(Instructed by Freshfields Bruckhaus Deringer LLP)
Heard on 15 October 2012
Lady Hale (with whom Lord Neuberger, Lord Mance, Lord Kerr and Lord Reed agree)
The issue in this case is whether a woman who has temporarily left work because of the late stages of pregnancy and early aftermath of childbirth is to be treated as a 'worker' for the purpose of the right of free movement enshrined in article 45 of the Treaty on the Functioning of the European Union (TFEU) and more specifically the right of residence conferred by Article 7 of Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (the Citizenship Directive). Upon this depends her entitlement to income support, a non-contributory, means-tested benefit. Under UK domestic law, a pregnant woman within 11 weeks of her expected date of confinement is not required to be available for, or actively to seek, work. However, a national of another EU state will be excluded as a 'person from abroad' unless, in this case, she falls within Article 7.
The claimant is a Frenchwoman (and qualified teacher) who came to the United Kingdom on 10 July 2006. She worked in various jobs, mostly as a teaching assistant, from 1 September 2006 until 1 August 2007. She then enrolled on a Post-Graduate Certificate in Education course in the University of London, the envisaged period of study being from 17 September 2007 until 27 June 2008. She became pregnant with an expected date of confinement of 2 June 2008. She therefore withdrew from her course as of 1 February 2008. She undertook agency work from 22 January 2008, hoping to find work in secondary schools. As none was available, she took agency positions working in nursery schools. By 12 March 2008, when she was nearly six months' pregnant, the demands of caring for nursery school children became too strenuous and she stopped this work. She looked for lighter work for a few days but none was available. On 18 March 2008, she made a claim for income support. Her evidence is that, as it was now 11 weeks before her expected date of confinement, she was advised by her general practitioner to do so. On 4 May 2008, the Secretary of State refused her claim. Her baby was born prematurely on 21 May 2008 and she returned to work three months later.
On 4 September 2008, the First Tier Tribunal allowed the claimant's appeal against the refusal of income support. But on 7 May 2010, the Upper Tribunal allowed the appeal of the Secretary of State. On 13 July 2011, the Court of Appeal dismissed the claimant's appeal: see [2011] EWCA Civ 806. She now appeals to the Supreme Court of the United Kingdom.
The relevant domestic legislation is complex. 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. 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. Thus without other sources of income (including stutory maternity pay and other social security benefits for which some but not all pregnant women are eligible) she will be left destitute unless income support is available.
However, a 'person from abroad' is effectively excluded from entitlement to income support because the 'applicable amount' prescribed for such a person is 'nil': see the 1992 Act, section 124(1)(b) and paragraph 17 of Schedule 7 to the 1987 Regulations. Regulation 21AA of those Regulations tells us what a 'person from abroad' means. By regulation 21AA(1), it means 'a claimant who is not habitually resident in the United Kingdom …' By regulation 21AA(2), 'No claimant shall be treated as habitually resident in the United Kingdom … unless he has a right to reside in … the United Kingdom …' This is subject to various exclusions in regulation 21AA(3) which do not concern us. However, by regulation 21AA(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;
(c) a person who retains a status referred to in sub-paragraph (a) or (b) pursuant to article 7(3) 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.'
Thus EU citizens who are 'workers' in the United Kingdom within the meaning of EU law are put in the same position as habitually resident citizens of the UK for the purpose of entitlement to income support (and indeed other benefits, such as housing benefit and child benefit, to which it is the passport or which have a similar rule of entitlement).
The relevant provisions of European Union law are article 45 of the TFEU and Article 7 of the Citizenship Directive. Article 45 enshrines the principle of freedom of movement for workers and requires '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'. Neither Article 45 TFEU nor Article 7 of the Directive defines 'worker'. The central issue in this case is whether a pregnant woman who temporarily gives up work because of her pregnancy remains a 'worker' for this purpose.
Article 7 of the Citizenship Directive, so far as relevant, provides as follows:
'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; …
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.'
It is noted that not all of the persons covered by Article 7(3) will be involuntarily unemployed or unable to work.
Reference was also made in the course of argument to Articles 16(3) and 24. Article 16(3) provides that the continuity of residence required to obtain the right of permanent residence in the host Member State is not affected by a temporary absence of up to twelve months for important reasons 'such as pregnancy and childbirth, serious illness, study or vocational training'.
Article 24(1) requires that 'Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty'.
It is common ground between the parties that the term 'worker' includes (i) a person who currently has a contract of employment with an employer, but who is on paid or unpaid maternity leave; and (ii) in certain circumstances, a...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2013-06-24, [2013] UKUT 315 (IAC) (Shabani (EEA - jobseekers; nursery education))
...can retain the status of a worker in EU law has been held by the Supreme Court in Saint Prix v Secretary of State for Work and Pensions [2012] UKSC 49 to require a reference to the Court of Justice, a woman who has left the labour market in order to look after children does not retain her s......
-
JS v Secretary of State for Work and Pensions (IS)
...my view is underscored by what the Supreme Court said in giving its view as it made the reference to the CJEU in Jessy Saint Prix v SSWP [2012] UKSC 49: “21. The Supreme Court is not persuaded that the case of either side is acte clair. We believe it likely that the Council and Parliament d......
-
(1) Secretary of State for Work and Pensions (2) ADR (3) CS CIS 204 2013
...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 i......
-
Shabani (EEA - Jobseekers; Nursery Education) [Upper Tribunal]
...can retain the status of a worker in EU law has been held by the Supreme Court in Saint Prix v Secretary of State for Work and Pensions [2012] UKSC 49 to require a reference to the Court of Justice, a woman who has left the labour market in order to look after children does not retain her ......
-
Demagnetisation of Social Security and Health Care for Migrants to the UK
...UK and having a ‘genuine chance’ of bei ng hired: 2006 Reg ulations, reg.6(2).103 Saint Prix v Secretary o f State for Work and Pensions [2012] UKSC 49. Neville Ha rris 144 Intersentiaand found her work too strenuous due to her pregnancy. e CJEU,104 on reference from the UK Supreme Court ......