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[2009] UKUT 11 (AAC) (20 January 2009)

 
Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the Sutton appeal tribunal (held on 24 September 2007 under reference 154/07/03113) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to a differently constituted First-tier Tribunal (Social Entitlement Chamber).

DIRECTIONS:

The tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

In particular, the tribunal must investigate and determine whether the claimant attained and retained her status as a worker:

If the claimant did not attain that status, the tribunal must dismiss her appeal.

If the claimant attained and retained that status, she had a right to reside and was, subject to satisfying the other conditions, entitled to income support.

If the claimant attained that status, but did not retain it, the tribunal must stay the case to await the answers given by the European Court of Justice to the questions posed by the Court of Appeal in Teixeira v London Borough of Lambeth and the Secretary of State for the Home Department [2008] EWCA Civ 1088.

Reasons for Decision

A. History and background

1. The claimant is Iranian in origin and of Dutch nationality. She came to this country on 1 June 2005 and worked from 22 June 2005 to 6 January 2006. There was a gap until 21 March 2006 when she was awarded a jobseeker's allowance until 25 February 2007. She was then rendered unable to work as a result of high blood pressure from 26 February 2007 to 14 May 2007. She claimed income support on 2 March 2007, but this was refused on 4 May 2007 on the ground that she was a person from abroad whose applicable amount was nil. Following her recovery, the claimant again claimed jobseeker's allowance.
2. The claimant exercised her right of appeal to an appeal tribunal and succeeded. The tribunal applied regulation 6(2) of the Immigration (European Economic Area) Regulations 2006 and decided: (i) the claimant was seeking work with a genuine chance of being engaged while she was receiving jobseeker's allowance; and (ii) she was thereafter temporarily unable to work.
3. I gave the Secretary of State leave to appeal and the parties have now made their submissions.

B. The issues

4. As there is to be a rehearing, I will present my reasons under the headings that will, I hope, guide the tribunal's analysis at the rehearing, indicating along the way how the tribunal went wrong in law.
5. The claimant's entitlement to income support depends on whether she has a right to reside. That in turn depends on the legal analysis of the sequence of events that have occurred since the claimant came to the United Kingdom. Those events raise the following issues.

C. Issue 1 – was the claimant ever a worker?

6. The claimant worked for about 6½ months. The issue here is whether that work was genuine and effective. This has not been disputed and is implicitly accepted in the Secretary of State's submission at page 74. In view of the period for which the claimant worked and the fact that there is no evidence of any other income during that period, it is reasonable to accept that she was a worker.
7. At the rehearing, the tribunal may accept that the claimant is a worker unless evidence arises to suggest otherwise.
8. If the claimant was a worker, the second issue arises. If she was not, she did not acquire a right to reside and she was not entitled to income support. If the tribunal so decides, it must dismiss her appeal.

D. Issue 2 – did the claimant retain that status when that work ceased?

9. The tribunal did not deal with this issue. It made no findings of fact and had no evidence before it.
10. In refusing leave to appeal, the chairman commented: 'There are many reasons why a person does not immediately claim JSA after ceasing work eg she could have been taking a holiday for some of the time. This would not interrupt her worker status. She also could have been looking for work but not claiming and living on her pay from her job.' That is, of course, correct, but it was all speculation. The fact is that the tribunal did not investigate a key issue in the chain that must be established if she is to have a right to reside. The tribunal went wrong in law by failing to investigate and make findings on this issue.
11. The claimant's representative has now told me that she tried to apply for a jobseeker's allowance in January 2006, but was advised by the Jobcentre that she should claim income support as she was a lone parent. I do not know whether she followed that advice. The representative says that she continued to look for work and attended courses on English, numeracy, IT and CV writing. That is evidence which is, as yet, unsupported by any documentary evidence and untested by questioning. The tribunal must consider the evidence of the claimant's activities between 6 January and 21 March 2006 at the rehearing.
12. The questions for the tribunal are whether the claimant became involuntarily unemployed and whether the delay prevented the claimant retaining worker status when she applied for, and was awarded, a jobseeker's allowance. This has been considered by Mr Commissioner Rowland and Mr deputy Commissioner White.
13. In CIS/1934/2006, Mr Rowland said:

'13. … it may well be that some gap between employment and a person starting to seek work again will not be fatal to reliance on regulation 5(2)(b). It may, for instance, be arguable that regulation 5(2)(b) could be relied upon after a person had taken time away from the labour market for a short holiday or while giving birth. However, the language of the legislation – in particular, the word "cease" – undoubtedly implies some continuity and, if such a gap is permissible in some cases, the gap in the present case was too long. It was just over two years and it seems to me to be significant that such a period abroad would now be sufficient to cause a person to lose even a right of permanent residence acquired through a residence for five years as a worker (see Article 16(4) Council Directive 38/2004/EC, which had been adopted, although it had not come into force, at the time material to these appeals).'

14. In contrast in CIS/0519/2007, Mr White decided that a delay of two months between the ending of the claimant's employment and claiming benefit did not prevent her retaining her status as a worker: paragraph 21. (The decision is at pages 76-78.)
15. The Secretary of State has argued that Mr White's reasoning does not apply to this case, because here the claimant made a claim for a jobseeker's allowance, which allows her unemployment to be recorded, rather that income support, which does not. I accept that that is a difference between the cases. However, there is still a question of the speed with which the claim must be made. A gap between becoming involuntarily unemployed and claiming jobseeker's allowance is not necessarily fatal. Whether it is significant or not will depend on the length of the gap and the reasons for it. Put into the legal terms of EC analysis, the question is whether the gap shows that the claimant has withdrawn from the labour market. A claimant may take a few days to think about the future or to rest after a stressful period leading to redundancy. That may be consistent with remaining in the labour market. In contrast, a claimant who decides to spend six months backpacking in the Australian outback before looking for work has clearly left the labour market for the time being. The tribunal must investigate this issue at the rehearing.
16. If the claimant did retain her status before claiming jobseeker's allowance, the third issue arises. If the claimant did not retain her status before claiming jobseeker's allowance, the fifth issue arises.

E. Issue 3 – did the claimant retain her status as a worker while receiving jobseeker's allowance?

17. This depends on the application of regulation 21AA of the Income Support (General) Regulations 1987. The relevant provisions read:

'Special cases: supplemental – persons from abroad

21AA.—(1) "Person from abroad" means, subject to the following provisions of this regulation, a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.

(2) No claimant shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless he has a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland other than a right to reside which falls within paragraph (3).

…

(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; …

(c) a person who retains a status referred to in sub-paragraph (a) or (b) pursuant to Article 7(3) of that Directive; …'

18. In order to apply paragraph (4)(c), it is necessary to consider Article 7(3) of the Directive:

'(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 a 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.'

19. The claimant does not satisfy either head (b) or (c). She does not satisfy head (b), because she was not employed for more than a year. Her employment lasted only about 6½ months. Nor does she satisfy head (c), because she was unemployed for more than 6 months. She received a jobseeker's allowance for 11 months and was unemployed for 2½ months before that.
20. However, the Immigration (European Economic Area) Regulations 2006 are more generous to the claimant. If she satisfies the requirements of these regulations, she comes within regulation 21AA(2). The relevant regulation is Regulation 6(2):

'(2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if-

(a) he is temporarily unable to work as the result of an illness or accident;

(b) he is in duly recorded involuntary unemployment after having been employed in the United Kingdom, provided that he has registered as a jobseeker with the relevant office and-

(i) he was employed for one year or more before becoming unemployed;

(ii) he has been unemployed for no more than six months; or

(iii) he can provide evidence that he is seeking employment in the United Kingdom and has a genuine chance of being engaged;

(c) he is involuntarily unemployed and has embarked on vocational training; or

(d) he has voluntarily ceased working and embarked on vocational training that is related to his previous employment.'

21. The difference between Article 7(3) and regulation 6(2) lies in regulation 6(2)(b)(iii). The Secretary of State has argued (page 75): 'After over 10 months of unemployment it was not clear whether she had a genuine chance of being engaged and the tribunal made no specific findings about this.' I accept that the tribunal made no findings. However, it is a condition of a jobseeker's allowance that the claimant is actively seeking work, which requires a claimant to take the steps required to have the best chance of securing employment (sections 1(2)(c) and 7 of the Jobseekers Act 1995). It is conceptually possible for a claimant to satisfy those conditions but nonetheless have no genuine chance of being engaged. Those who have dealt with jobseeker's allowance appeals are familiar with some claimants who, although allowed the benefit, have no realistic prospect of attracting the attention of an employer. However, for most people their entitlement to a jobseeker's allowance is evidence that they have a genuine chance of being engaged. How persuasive that evidence is will depend on the relevant evidence as a whole. The tribunal will have to make its assessment of this on the evidence available at the rehearing.
22. If the claimant did retain her status while claiming jobseeker's allowance, the fourth issue arises. If the claimant did not retain her status while claiming jobseeker's allowance, the fifth issue arises.

F. Issue 4 - did the claimant retain her status as a worker while she was temporarily unable to work?

23. In CIS/4304/2007, I decided that worker status could survive when someone who was seeking work became unable to work. (The decision is at pages 52-60.) That was controversial at the time, but the Secretary of State has now conceded that that decision was correct: page 74. So the answer to this issue is: yes.

G. Issue 5 – if the claimant fails on the above issues, should the case be stayed?

24. I have not so far mentioned the claimant's children or their education.
25. If the tribunal decides that the claimant became a worker but did not retain this status, it will have to consider whether it is possible that she may have attained a right to reside as the primary carer of children in education. The outcome of this issue depends on the outcome of the reference made by the Court of Appeal to the European Court of Justice in Teixeira v London Borough of Lambeth and the Secretary of State for the Home Department [2008] EWCA Civ 1088:

'In circumstances where (i) an EU citizen came to the United Kingdom (ii) the EU citizen was for certain periods a worker in the United Kingdom (iii) the EU citizen ceased to be a worker but did not depart from the United Kingdom, (iv) the EU citizen has not retained her status as a worker and has no right to reside under Article 7 and has no right of permanent residence under Article 16 of Directive 2004/38 of the Council and the European Parliament (v) the EU citizen's child entered education at a time when the EU citizen was not a worker but the child remained in education in the United Kingdom during periods when the EU citizen was in work in the United Kingdom, (vi) the EU citizen is the primary carer of her child and (vii) the EU citizen and her child are not self-sufficient:

(1) does the EU citizen only enjoy a right of residence in the United Kingdom if she satisfies the conditions set out in Directive 2004/38 of the European Parliament and the Council of 29 April 2004?;

OR

(2)(i) does the EU citizen enjoy a right to reside derived from Article 12 of Regulation (EEC) No 1612/68 of 15 October 1968, as interpreted by the Court of Justice, without being required to satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004; and

(ii) if so, must she have access to sufficient resources so as not to become a burden on the social assistance system of the host Member State during their proposed period of residence and have comprehensive sickness insurance cover in the host Member State?;

(iii) if so, must the child have first entered education at a time when the EU citizen was a worker in order to enjoy a right to reside derived from Article 12 of Regulation (EEC) No 1612/68 of 15 October 1968, as interpreted by the Court of Justice, or is it sufficient that the EU citizen has been a worker at some time after the child commenced education?;

(iv) does any right that the EU citizen has to reside, as the primary carer of a child in education, cease when her child attains the age of eighteen?

(3) if the answer to question 1 is yes, is the position different in circumstances such as the present case where the child commenced education prior to the date by which Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 was to be implemented by the Member States but the mother did not become the primary carer and did not claim the right to reside on the basis that she was the primary carer of the child until March 2007, ie after the date by which the Directive was to be implemented?'

26. The claimant's representative has conceded that, if her appeal otherwise fails, it will have to be stayed to await the answers to those questions: page 69. The tribunal must stay the case until the answers are given.

H. Disposal

27. I allow the appeal and remit the case for rehearing in accordance with my directions and analysis of the issues.

Signed on original on 20 January 2009

Edward Jacobs Upper Tribunal Judge