VP CJSA 3172 2012
| Jurisdiction | UK Non-devolved |
| Judge | Judge C G Ward |
| Judgment Date | 23 January 2014 |
| Neutral Citation | 2014 UKUT 32 AAC |
| Subject Matter | European Union law |
| Respondent | Secretary for Work and Pensions (JSA) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CJSA 3172 2012 |
| Appellant | VP |
[2014] AACR 25
(VP v SSWP)
[2014] AACR 25
(VP v Secretary of State for Work and Pensions (JSA)
[2014] UKUT 32 (AAC))
Judge Ward CJSA/3172/2012
23 January 2014
European Union law – self-sufficiency for Article 7(1)(b) of Citizenship Directive – when to be considered – whether wages can be taken into account – whether entitlement to NHS treatment is “comprehensive sickness insurance” – impact of C-140/12 Brey
The claimant was a Lithuania national, single and with no dependants. He came to the UK in May 2005, following the accession of Lithuania and the other A8 States to the European Union on 1 May 2004. He survived by working in a succession of low paid manual jobs, often either temporary or for fluctuating hours. In July 2010 he was issued with a worker registration certificate by his last employer but never completed the 12 months’ certificated employment under the worker registration scheme. When this job ended his claim for jobseekers allowance (JSA) failed on the ground that he did not have the right to reside. The First-tier Tribunal (F-tT) disallowed his appeal, holding that he had not completed 12 months of registered employment under the Accession (Immigration and Worker Registration) Regulations 2004 and had not completed 5 years’ continuous residence as a worker or as a self-sufficient person. He appealed to the Upper Tribunal (UT).
Held, allowing the appeal, but re-making the decision in the same terms:
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whether derogation from Article 7(3) of Directive 2004/38/EC (the Citizenship Directive), under the Accession (Immigration and Worker Registration) Regulations 2004, was lawful was not covered by the ratio of Zalewska v Department for Social Development [2008] UKHL 67, reported as R 1/09 (IS). It was not necessary to decide this issue as the appeal failed on other grounds and there was no disproportionate impact on the claimant (paragraphs 31 to 64);
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the claimant could not rely on Article 7(3) of the Citizenship Directive because he had delayed too long in registering as a jobseeker: Secretary of State for Work and Pensions v MK (IS) [2013] UKUT 0163 (AAC) and Secretary of State for Work and Pensions v Elmi [2011] EWCA Civ 1403; [2012] AACR 22. Therefore, despite the uncertainty as to whether the derogation was lawful, there was no reason to make an Article 267 reference under the Treaty on the Functioning of the European Union (paragraphs 49 to 61);
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the claimant failed the test of self-sufficiency under the Citizenship Directive as it had to be met at the outset of the five-year period relied upon for permanent residence: Case C-140/12 Brey. While there was little limitation over the source of the resources, the legislation presupposed a degree of stability to them. It was also not possible to rely on wages to assert self-sufficiency against the Member State in which those wages were earned: MA & Others (EU national; self-sufficiency; lawful employment) Bangladesh [2006] UKAIT 00090 (paragraphs 83 to 96);
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the claimant could not assert that he had comprehensive sickness insurance for that same five-year period by virtue of any rights for treatment under the National Health Service: FK (Kenya) v Secretary of State for the Home Department [2010] EWCA Civ 1302. The European Commission’s Press Release IP/12/417 of 26 April 2012 was contrary to Article 7(1)(b) of the Citizenship Directive and provided no reason to consider an Article 267 reference on this point: obiter dicta in Secretary of State for Work and Pensions v SW (IS) [2011] UKUT 508 (AAC) and AS v HM Revenue and Customs (CB) [2013] NICom 15 not followed (paragraphs 98 to 105);
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the decision in Brey provided no assistance to the claimant. The argument, that the burden he posed by claiming was not unreasonable, rendered meaningless the protection provided for Member States under the self-sufficiency provisions. Properly understood, Brey addressed the position of someone who had an Article 7 right but where something then occurred so as to make a claim necessary. This was not the claimant’s situation (paragraphs 106 to107);
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the right to reside test was not unlawfully discriminatory on the grounds of nationality: Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11; [2011] 1 WLR 783; [2011] AACR 34 (paragraph 108);
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the right to reside test was not incompatible with Article 70(4) of Regulation 883/2004 (paragraphs 109 to 110).
Mr Adam Weiss, the AIRE Centre, appeared for the appellant.
Mr James Cornwell of counsel, instructed by the Solicitor, Department for Work and Pensions appeared for the respondent.
Decision: I decline to make any reference to the Court of Justice of the European Union. The appeal fails in the result. The decision of the First-tier Tribunal sitting at King’s Lynn on 1 May 2012 under reference SC141/1100322 did involve the making of errors of law and is set aside but having made further findings of fact I re-make it in the same terms.
1. The facts of this case are relatively straightforward. The legal issues it gives rise to are numerous and difficult. They may be summarised thus:
A. Is the derogation from Article 7(3) of Directive 2004/38/EC (the Citizenship Directive) made by the now repealed Accession (Immigration and Worker Registration) Regulations (SI 2004/1219) (the 2004 Regulations) lawful? Whether as part of this or as a self-contained point, was the impact upon the claimant disproportionate?
B. If the answer to issue A is or may be no, could the claimant in any event bring himself within Article 7(3) so as to establish that, at the time of his claim, he was a “worker” in EU law who, though not then working, had retained that status so as to be able to rely on Article 7 of Regulation 1612/68 so as to claim parity with national workers?
C. If he was not a person with retained worker status, was he able – in combination with the admittedly limited periods when he had worked in employment covered by a worker registration certificate under the 2004 Regulations – to point to sufficient resources to meet that limb of the test of self-sufficiency in Article 7(1)(b) of the Citizenship Directive over the five-year period leading up to the claim for jobseeker’s allowance (JSA), which, if D below were also to be satisfied, would mean that he had a right of permanent residence under Article 16 of the Citizenship Directive? For this, he sought to rely on the fact that he had not been dependent on social assistance during that five-year period, but had managed on the money he had been able to earn.
D. Over the same five-year period and with the same end in view, could he assert that he had comprehensive sickness insurance by virtue of such rights as he possessed to treatment under the National Health Service?
E. Does the decision in Case C-140/12 Brey operate to confer any ability on the claimant to claim successfully which he would not otherwise have had?
F. Is the right to reside test unlawful on the grounds that it is unlawfully discriminatory on the grounds of nationality?
G. Is the right to reside test unlawful on the ground that it is incompatible with Article 70(4) of Regulation 883/2004?
2. The claimant is a national of Lithuania. He is single and does not have children. He came to the UK in May 2005, following the accession of Lithuania and the other so-called A8 States to the EU on 1 May 2004. Between May 2005 and December 2007 he worked (through agencies) for a poultry business and then a sheet-metal business. Though he clearly worked considerable amounts of time in those jobs, it is not possible to say that he always did so to the extent of a full conventional working week. It is said that between January 2008 and August 2009 he worked in the building trade, on a self-employed basis, but there is no evidence as to this and I make no finding that he did. In the period from 29 May 2009 to week ending 28 November 2009 he worked as a (horticultural) nursery worker. A worker registration certificate was issued for that employment on 17 July 2009 with effect from May 2009. His jobs...
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