CJSA 2042 2015, Secretary of State for Work and Pensions v MB and others (JSA)

CourtUpper Tribunal (Administrative Appeals Chamber)
JudgeJudge C G Ward
Judgment Date05 August 2016
Neutral Citation[2016] UKUT 372 (AAC)
AppellantSecretary of State for Work and Pensions
RespondentMB and others (JSA)
SubjectEuropean Union law
Docket NumberCJSA 2042 2015
IN THE UPPER TRIBUNAL

[2017] AACR 6

(Secretary of State for Work and Pensions v MB & others (JSA)
[2016] UKUT 372 (AAC))

Judge Ward CJSA/446/2015 & CJSA/1960/2015 5 August 2016 CJSA/827/2015 & CJSA/2042/2015

European Union law – free movement of workers – application of Genuine Prospects of Work test – compelling evidence requirement

The Secretary of State decided, following Genuine Prospects of Work (GPOW) interviews, that all four claimants were no longer entitled to jobseeker’s allowance (JSA) as they had failed to provide compelling evidence that they had a genuine chance of obtaining employment. The Secretary of State was the appellant in three cases where the First-tier Tribunal (F-tT) had upheld the claimant’s appeals and a claimant the appellant in the remaining case. The main issue before the Upper Tribunal was whether the claimants had provided compelling evidence of a genuine chance of being engaged in work, thereby retaining their status as jobseekers under the Immigration (European Economic Area) Regulations 2006 (as amended). In addition two claimants argued that they had alternative grounds.

Held, allowing the appeals, that:

  1. the only civil standard of proof was that the fact in issue had more probably occurred than not, but in deciding that question regard should be had, to whatever extent appropriate, to inherent probabilities: Re B (Children) [2008] UKHL 35 (paragraph 23)
  2. to satisfy the GPOW test a person had to have a chance of being engaged which was founded on something objective and offered real prospects of success in obtaining work (that was genuine and effective) within a reasonable time: Antonissen, C-292/89, EU:C:1991:80. A tribunal would need to take a period of six months (or longer) of unsuccessful jobseeking into account, along with other factors, in assessing whether a person did indeed have genuine chances. The “compelling evidence” requirement could not go further than that without undermining the Antonissen test. The argument that regard should only be had to qualifications possessed by the claimant either on entering the UK or, alternatively, at the date of the decision under appeal was rejected (paragraphs 42 to 57)
  3. when deciding an appeal, tribunals should not limit themselves to considering whether a claimant met the Department for Work and Pensions’ own guidance, as its narrow focus might mean that a claimant was not alerted to the need to raise other issues which might bear on their chances of getting a job (paragraphs 61);
  4. the judge rejected the alternative grounds argued by two of the claimants (paragraphs 132 to 146).

The judge set aside the decisions of the F-tT in all four cases, re-making the decision in one case to the effect that the claimant was not entitled to JSA, in another staying a decision pending a Court of Appeal judgment in a related case and remitting the appeals in the remaining two cases to differently constituted tribunals to be re‑decided in accordance with his directions.

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Ms Julia Smyth, instructed by Government Legal Service, appeared for the Secretary of State.

Mr Michael Spencer and Mr Martyn Williams, both of Child Poverty Action Group, appeared for the claimants MB, AM and VA.

Ms Mary Shone, Bolton Citizens Advice Bureau, appeared for the claimant AB.

Decisions:

All

I abridge from three months to six weeks the time limit in rule 44(3) of the Upper Tribunal’s Rules within which any application for permission to appeal is to be made

CJSA/2042/2015

The appeal by the Secretary of State is allowed. The decision of the First-tier Tribunal sitting at Wolverhampton on 10 February 2015 under reference SC053/14/01022 involved the making of an error of law and is set aside. I re-make the decision in the following terms:

MB’s appeal against the decision of 14 November 2014 is dismissed. She did not succeed in demonstrating in accordance with regulation 6 of the Immigration (European Economic Area) Regulations 2006 that she had a “genuine chance of being engaged”, nor has she succeeded in demonstrating that she was a dependant family member in the ascending line of her daughter, SA, at the material time. Consequently she fell to be treated as a “person from abroad” for the purposes of her claim to jobseeker’s allowance on and from 14 November 2014.

CJSA/1960/2015 (Interim decision)

The appeal by the Secretary of State is allowed to the following extent. The decision of the First-tier Tribunal sitting at Bolton on 17 April 2015 under reference SC122/15/00145 involved the making of an error of law and is set aside. I re-make the decision in the following terms:

Inasmuch as AB seeks to contend that she had a genuine prospect of being engaged as at 8 November 2014, her appeal against the Secretary of State’s decision of that date fails.

I find as fact that AB was born in 1995. Her mother, JB, was continuously employed between 1 May 2009 and 9 August 2013, in employment which at no point was registered under the Worker Registration Scheme. I further find that JB was in receipt of jobseeker’s allowance between 24 September 2013 and 16 February 2014. At all material times, AB lived with her parents. I record that the Secretary of State does not seek to allege there was undue delay between JB’s employment ceasing and when she claimed jobseeker’s allowance.

I stay the question of whether the above facts and concessions are sufficient to confer on AB a permanent right of residence as a family member of her mother, JB, until after the Court of Appeal shall have given judgment in Secretary of State for Work and Pensions v Gubeladze, in which a hearing is due in February 2017, or further order.

AB’s claim to be entitled to rely on rights derived from C-507/12 Saint Prix from 1 November 2014 is rejected.

CJSA/446/2016

The appeal by the Secretary of State is allowed. The decision of the First-tier Tribunal sitting at Northampton on 8 October 2015 under reference SC316/15/00513 involved the making of an error of law and is set aside. The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with this decision.

CJSA/827/2016

The appeal by the claimant is allowed. The decision of the First-tier Tribunal sitting at Fox Court on 5 November 2015 (the date on the statement of reasons is in error) under reference SC242/15/05153 involved the making of an error of law and is set aside. The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with this decision.

REASONS FOR DECISION

1. These cases, which are lead cases behind which a significant number of others are stayed, raise a number of issues concerning the so-called Genuine Prospects of Work (“GPOW”) test. The phrase “genuine prospects of work” does not appear in legislation or case law. The relevant test is correctly expressed as “a genuine chance of being engaged”, or sometimes “genuine chances”: It has not been suggested that the difference between the singular and plural forms is significant and I do not consider that it is. Whilst a jobseeker’s chances of being engaged have always been relevant under the definition of “jobseeker” under the Immigration (European Economic Area) Regulations (SI 2006/1003) (“the 2006 Regulations”), the point has arisen more prominently following amendments made to the 2006 Regulations by SIs 2013/3032, 2014/1451 and 2014/2761 (together “the GPOW Regulations”), which required, inter alia, “compelling evidence” to be provided. That expression is not defined.

2. In CJSA/2042/2015, the claimant MB had appealed against the Department for Work and Pensions’ (DWP) decision dated 12 November 2014. A summary of the facts can be found at [81]–[87] below. On 10 February 2015 the First-tier Tribunal held that she had met the compelling evidence requirement and allowed her appeal. The Secretary of State appeals, with the permission of the Upper Tribunal. Mr Spencer conceded that the tribunal’s decision was in error of law but submits that it should be re-made in MB’s favour on the basis that she did have a genuine...

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