Right to reside: when 3 equals 6

 

Henri Krishna describes further reductions in rights to reside for jobseekers.

From 10 November 2014, the Immigration (European Economic Area) (Amendment) (No.3) Regulations 20141 SI 2014/2761reduce the period for which an European Economic Area (EEA) national has the right to reside as a jobseeker before becoming subject to the ‘genuine prospect of work’ test from 182 to 91 days – ie, from six months to three months. Periods of jobseeking after 31 December 2013 are taken into account when calculating that ‘relevant period’. This means that EEA nationals whose only right to reside is as a jobseeker will be subject to the ‘genuine prospect of work test’ after 91 days. The DWP considers that:

The official reasoning behind the change is set out in the explanatory memorandum to the amendment. That is based on the interpretation of EEA jobseeker’s rights in the Court of Justice of the EU (CJEU) caselaw, and more specifically the Antonissen case.6 The Queen v Immigration Appeal Tribunal, ex parte Gustaff Desiderius Antonissen [1991] C-292/89 In Antonissen, an immigration case, the CJEU held that EEA nationals seeking work have the right to remain without removal in an EU state for at least six months, and longer if they can show that they are continuing to seek and have a genuine chance of getting work. The government’s interpretation is that this six-month right to reside requirement for EEA nationals seeking work is satisfied by the initial three months’ right to reside enjoyed by all EEA nationals moving between member states, added together with a minimum further 91 days with a right to reside as a jobseeker. In the initial three months, an EEA national with no other right to reside under the EU Directive7 EU Directive 2004/38 or EEA Regulations must not be an unreasonable burden on the social assistance system, and indeed the initial three-month right to reside does not provide entitlement to, for example, income-based JSA.8 Such a right to reside is also insufficient for the habitual residence test in reg 85A JSA Regs 1996 This is in addition to the exclusion from income-based JSA by the three-month living in the UK requirement that applies to all claimants. So, after the initial three months, an EEA jobseeker can claim income-based JSA for up to 91 days, or longer if s/he can satisfy the genuine prospect of work test. The result is that such a person would have a right to reside for at least six months, but very possibly only be entitled to income-based JSA for 91 days – ie, three months. The government holds that the rights flowing from Antonissen only cover those entering a member state to seek work and so it need not guarantee the full six months’ for those who have already been in the country on another basis.

While Antonissen remains good law regarding the rights of EEA nationals seeking work not to be removed (ie, to have a right to reside), the CJEU has also ruled on the specific issue of workseekers’ rights to benefits. Of primary relevance are the joined Vatsouras and Koupatantze cases.9 Vatsouras v Arbeitsgemeinschaft (ARGE) Nürnberg 900 [2009] EUECJ C-22/08 and Koupatantze v Arbeitsgemeinschaft (ARGE) Nürnberg 900 [2009] EUECJ C-23/08 (Vatsouras and Koupatantze) These may provide the basis of an argument about the legality under European law of the reduction of the relevant period for jobseekers from 182 days to 91 days. However, it must be noted that any such argument is currently untested and would no doubt be contested by the DWP.

In Vatsouras and Koupatantze, the appellants only had jobseeker status while in Germany and had the equivalent of German income-based JSA stopped after three months, on the basis that that status was time-limited. The questions referred to the Court were essentially whether this was compatible with rights to equal treatment under what is now the Treaty on the Functioning of the EU (TFEU) and the EU Directive. The Court firstly pointed out that those seeking employment fall within the scope of the Treaty definition of ‘worker’.10 Vatsouras and Koupatantze para 36 Further, that the interpretation of the requirement for equal treatment of EU citizen’s under that part of the Treaty means benefits that facilitate rights of access to labour markets cannot be considered social assistance.11 Vatsouras and Koupatantze paras 37 and 45 Therefore, the limits on rights to social assistance for job-seekers contained in the derogation from equal treatment in the EU Directive12 Art 24(2) EU Directive 2004/38 did not apply to such benefits. The Court held that it was legitimate for a member state to ensure that a real link has been made with its labour market by those seeking work, but once this is established, then jobseekers should have access to the appropriate benefits.13 Vatsouras and Koupatantze paras 38 to 40

As such, it is arguable that EEA jobseekers exercising rights in accordance with the TFEU should have a right to benefits to facilitate those rights for at least six months. That is because, applying Antonissen, such jobseekers must have a right to reside for at least six months and, applying Vatsouras and Koupatantze, during that period they should not be denied access to benefits of a financial nature meant to promote access to the labour market – eg, JSA. If that is correct, the imposition of the ‘genuine prospect of work’ test for jobseekers after 91 days (ie, three months) instead of 182 days (ie, six months) is arguably inconsistent with the caselaw. Further, the caselaw makes no reference to the need for ‘compelling evidence’ after six months (which the DWP applies through the ‘genuine prospect of work’ test), only requiring that the jobseeker demonstrates that s/he continues to seek work and have a genuine chance of being engaged.

As regards the rights of jobseekers where an EEA national seeks work following a period exercising another right of residence in a member state (ie, s/he did not enter the UK as a jobseeker), this has already been addressed by the Upper Tribunal.14 Shabani v Secretary of State for the Home Department [2013] UKUT 315 (IAC) In the Shabani case the Secretary of State conceded, after consultation with the DWP and HMRC, that ‘second-time jobseekers’ can fall within definition of jobseeker in the EEA Regulations on the basis of the Antonissen case. Therefore, those seeking work after exercising a right of residence other than as a jobseeker may then have a right to reside as a jobseeker, with entitlement to benefit as a jobseeker, for a period of at least six months.

In an unusual development, a CJEU case concerning rights of residence has been grabbing the headlines. If some media outlets are to be believed, the Dano case15 Dano v Jobcenter Leipzig [2014] EUECJ C-333/13 heralds the end of entitlement to any benefit for EEA migrants. However, the case which concerned a woman and her son who had moved to Germany and who was not looking for work and had never sought worked there, or exercised any other Treaty rights, does little more than confirm that those not exercising their rights of free movement in accordance with EU law are not entitled to social assistance or equal treatment. The CJEU seemed at pains to emphasise that Ms Dano was not a jobseeker and as such the case should have no bearing on the rights of EEA jobseekers to claim benefits.

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