Upper Tribunal extends pregnancy right to reside

 

Mike Spencer looks at a recent Upper Tribunal decision on the residence rights of women who have to give up work during pregnancy and following childbirth.

In Secretary of State for Work and Pensions v SFF and Others [2015] UKUT 502 (AAC), Judge Ward considered the nature and extent of the right of residence accorded to women who give up work, or seeking work, due to pregnancy and childbirth. He found that the period would normally last 52 weeks, contrary to the DWP’s guidance of 26 weeks.

The case is the first social security case to consider the scope of Saint Prix v United Kingdom C507-12 (Bulletin 241), in which the European Court of Justice (CJEU) added women in the late stages of pregnancy and the aftermath of childbirth to the list of persons who can retain a right of residence under Article 7(3) of Directive 2004/38 (the ‘Directive’).

The CJEU found that ‘a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth retains the status of “worker” provided she returns to work or finds another job within a reasonable period after the birth of her child.’ Such women will have a right of residence and, therefore, are eligible to claim social security benefit such as income support (IS) or housing benefit. In relation to the length of this ‘reasonable period’, the CJEU said ‘the national court concerned should take account of all the specific circumstances of the case in the main proceedings and the applicable national rules on the duration of maternity leave, in accordance with Article 8 of Council Directive 92/85/EEC.’

The task for the Upper Tribunal was to interpret the CJEU’s proviso that a woman must ‘return to work or find another job within a reasonable period’ after birth. How long a period would normally be reasonable? Should individual factors be taken into account? Is the test prospective (ie, looking at a woman’s intention to return to work when she claims) or retrospective – ie, taking into account whether the woman actually returns to work or finds another job within the reasonable period? Judge Ward tackled these and other important questions in a helpful and clear decision.

Following Saint Prix, the DWP issued Guidance Memo DMG 25/14. The guidance suggested the 26-week period of ordinary maternity leave as a benchmark for the ‘reasonable period’. This conveniently fits with the period of eligibility for IS – ie, 11 weeks before and 15 weeks after birth. The guidance said IS would not be awarded if a claimant indicates that she has no intention of returning to work within 15 weeks after childbirth, or if she has given up work or stopped seeking work for reasons unrelated to pregnancy. However, if a claimant expresses an intention to return to work within 15 weeks but subsequently does not do so, ‘a recovery of the income support will not be required’.

Judge Ward answered the following questions:

This was perhaps the trickiest of the questions Judge Ward had to tackle, as the CJEU’s proviso is far from easy to interpret. Judge Ward found that the issue was ‘primarily one of the woman’s intention’, but subject to the special protection conferred on pregnant women by the CJEU’s judgment. He noted that ‘things do not always go smoothly for mother or child’ and that ‘some women may simply not know their intentions with regard to future employment until some time after the birth has occurred’. The requirement to return to work within a reasonable period is not a ‘condition precedent’ to the right coming into existence, but a ‘condition subsequent’ for terminating the right to reside where it is not met (paragraphs 21–22).

In other words, a woman need not prove that she will return to work within the reasonable period, but her right to reside will come to an end prospectively at the end of the reasonable period if she has not done so, or earlier if she says she has ‘absolutely no intention of returning to work under any circumstances’ (paragraph 24). The DWP’s current guidance, that a claimant must ‘express’ an intention to return to work within the reasonable period ‘at the outset of her IS claim’, is therefore probably incorrect, but women should be advised to be careful when expressing their intentions.

The DWP had argued in its submissions to the Upper Tribunal that if a woman fails to return to work within the reasonable period, then she would retrospectively never have had a right of residence in the first place. Although the DWP would not seek in practice to recover any overpayments arising from benefit already awarded, the tribunal would have to dismiss such an appeal if heard after the reasonable period had elapsed, and the period would not count towards permanent residence. Judge Ward rejected this submission [24], as it did not fit with his interpretation of Saint Prix and would not be consistent with section 12(8)(b) of the Social Security Act 1998, which prevents the tribunal taking into account ‘circumstances not obtaining at the time’ of the decision.

Judge Ward found that a woman may enter the Saint Prix period either having been employed immediately beforehand or having retained worker status pursuant to Article 7(3) of the Directive.

He left open the question of whether a woman can enter the period as a ‘pure’ jobseeker (ie, pursuant to C-282/89 Antonissen), as it did not arise on the facts of the cases before him (paragraph 25).

Judge Ward found that 11 weeks before the birth is a ‘yardstick’ which is capable of being displaced in particular cases depending both on the woman and unborn child concerned and the nature of the job she has been doing (paragraph 26).1 A recent three-judge panel judgment from the Immigration and Asylum Chamber of the Upper Tribunal (Weldemichael and another [2015] UKUT 540 (IAC)) has also considered the scope of the Saint Prix right. In that case, it was common ground that from 11 weeks before birth 'a woman cannot be expected to work, that timing being fixed, in order, as a matter of policy to protect pregnant women'. The judges would not rule out an earlier start date, for example in the case of multiple pregnancies or where there are particular requirements on the work in question, but cogent evidence would be needed.

Judge Ward found that the period would normally be 52 weeks, which accorded with both ordinary and additional maternity leave allowed under UK law, rather than the DWP’s suggested 26 weeks. The period may vary depending on the individual circumstances of the case. He did not elaborate on what circumstances might be relevant, but suggested that ‘[a]s a matter of practice rather than of law it seems likely that it will be an unusual case in which the period is other than the 52-week period’ (paragraph 35). We suggest that the period might be extended, for example, where the child is disabled and requires additional care.

Judge Ward found that a woman can leave the period either by returning to a job or by returning to the employment market as a former worker who is jobseeking under Article 7(3)(b) or (c). The proviso that she ‘returns to work or finds another job’ should not be taken literally (paragraph 40).

The parties were in agreement that it could and Judge Ward agreed (paragraph 44).

The CJEU’s requirement in Saint Prix that women must return to work within a reasonable period was not particularly clear and, if taken literally, could have been unworkable.

Judge Ward has responded with clear guidance, which is flexible enough to respond to individual circumstances, but does not create unnecessary hurdles or confusion for pregnant women and recent mothers.

 

 

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