Right to reside: workers and work-seekers

 

Pamela Fitzpatrick looks at some problems experienced by work-seekers and workers with the right-to-reside test.

The freedom of movement for European nationals to move to and reside in another Member State to search for work is one of the founding principles of European Community (EC) law. This right is enshrined in the EC Treaty at Article 39 and the European Court of Justice (ECJ) has consistently held that the provisions laying down that freedom must be given a broad interpretation.1 See, for example, C-139/85 Kempf v Staatssecretaris van Justitie [1986], para 13 However, claimants do experience problems such as:

EC legislation does not provide a definition for worker or work-seeker but the terms have been considered by the ECJ on a number of occasions.

In Lawrie-Blum,2 Lawrie-Blum C-66/85 [1986] ECR 2121the ECJ stated that the essential characteristic of a worker was that s/he performs services for and under the direction of another in return for remuneration for a certain period of time. The work can be part time and be topped up with public funds as long as it is not too marginal and ancillary. In Hoekstra,3 Hoekstra C-75/63 [1964] ECR 177 the ECJ held that the protected worker was not exclusively one who was currently employed. The Treaty also protected the worker who having left her/his job was capable of taking another. A worker who is temporarily incapable of work also retains worker status. Some former workers who become permanently incapable of work or who retire also have certain protections and a permanent right of residence.4 For full details of the rights of workers and work-seekers, see CPAG's Welfare Benefits and Tax Credits Handbook.

A work-seeker, on the other hand, is someone who is looking for work who has never actually worked in the particular Member State or someone who has lost her/his worker status but is now signing on.

Both workers and work-seekers derive rights of entry and residence under Article 39 of the EC Treaty and rights of equal treatment in respect of work and access to work under Regulation 1612/68. Article 7(2) of the same regulation provides that workers and certain former workers have the right to the same tax and 'social advantages' as nationals of a Member State. A social advantage would include any UK social security benefit or tax credit. In Lebon,5 Lebon C-316/85 [1987] ECR 2811the Court confirmed that only people who have worked in a Member State are entitled to rely on Article 7(2). EC law therefore provides a clear distinction in rights between those who have worked and those only seeking work.

The UK Regulations treat a person who is no longer working as retaining worker status if:

An issue that has arisen is whether a person can retain worker status if s/he moves from one situation to another - e.g., s/he is signing on and covered by 6(2)(b) but becomes incapable of work and wants to be covered by 6(2)(a).

CIS/601/2008 concludes that a person having lost her/his worker status through signing on for more than six months does not regain it if s/he then becomes temporarily incapable of work. There does not appear to be any authority for such a limitation of the worker's rights and such an approach is very restrictive. The point sought to be made in CIS/601/2008 is that gaps may be fatal, leaving the individual with the more limited rights as a work-seeker. This decision has now been set aside by the commissioner because it was based on an incorrect version of the regulations. In CIS/4304/2007 the commissioner states that it is permissible to retain worker status under different grounds in succession.

In CIS/1934/2006 (heard with CIS/2095/2006) the commissioner considered the position of a gap in respect of a person who was voluntarily unemployed who then returned to the labour market by signing on.

The commissioner goes on to say, however, that any gap between actual employment and work seeking should not be too long and that over two years would be too long.

Attempts to place a six-month time limit on non-British EEA nationals who are work-seekers in the UK is not new. In 1993 the Income Support (General) Regulations included the 'requirement to leave' rule. This referred to letters sent by the Home Office to EEA nationals who had been living in the UK for six months and had not found work. The letters acted as a trigger to remove access to certain benefits by defining the person for social security purposes as a 'person from abroad'.

The 'requirement to leave' was introduced following the judgment of the ECJ in Antonissen6 Antonissen C-292/89 [1991] ECR I-745which held:

Antonissen allows a six-month limit to be applied only if the person is not genuinely seeking work. It is difficult to see how a person who meets the onerous rules for jobseeker's allowance would not be found to be genuinely seeking work. This is reflected in the UK regulations, so a person who is signing on retains a right of residence.7 Subject to certain exceptions for A8 and A2 nationals.

Is there a requirement for the Home Office to end a person's residence?

In Remelien,8 Remelien v Secretary of State for Social Security and another, Chief Adjudication Officer v Wolke [1998] 1 All E.R. 129 the House of Lords touches on whether the residence of an EEA national can be ended without any formal notification and indeed who should end that residence. The Court held that a genuine 'requirement to leave' could only arise following a deportation or removal order issued by the Home Office and only after any appeal rights had run their course. A letter from the Home Office requiring an EEA national to leave did not amount to any such requirement as there was no obligation to leave.

There are parallels between the right to reside and the former 'requirement to leave' test. The judgment arguably implies that it is not open to social security tribunals to determine whether a person's residence has ended. Currently under the UK right-to-reside rules, benefit officials and tribunals do decide this point.

The current residence directive specifies that a person generally gains a permanent right of residence after five years' residence. Residence can be acquired before five years in some circumstances such as permanent incapacity. A person who has worked for five years or more should clearly have a permanent right of residence and should be treated in the same way as a British Citizen for benefit purposes. However, many claimants find that decision makers will not take into account residence acquired prior to the introduction of the new Residence Directive in May 2006. Permanent residence is not a new right introduced by the Directive but one which stems directly from the EC Treaty. The Directive sets out the practical arrangements for residence. This was confirmed in Royer9 Royer Case C-48/75 where the ECJ stated that the residence directives were intended to determine the practical details regulating the exercise of rights conferred directly by the Treaty.

The previous residence Directive for workers (EC Directive 68/360) at Article 6(1)(b) states that a residence permit must be valid for at least five years and be automatically renewable effectively providing a permanent right of residence.

The position is clearly set out in the preamble to the former directive for self-employed people (EC Directive 73/148). The preamble states that freedom of establishment can be fully attained only if a right of permanent residence is granted to the persons who are to enjoy freedom of establishment and that people providing and receiving services should have the right of residence for the time the services are provided.

The preamble to the 2004 Residence Directive states that the Directive is intended to strengthen rights. This was considered in Metock10 Metock C-127/08and the ECJ held that this preamble means that citizens cannot derive less rights than they had previously.

The UK Regulations, which have implemented the new Residence Directive, reflect this EC position and makes it clear that periods of residence prior to the introduction of the Residence Directive in 2006 must be treated as a period during which the person carried out that activity under the new rules. This was confirmed in CIS/4299/2007 which held that residence does not need to be under the new rules but can be acquired under the previous rules.

The right-to-reside test is proving to be an extremely complex area. One wonders if even the stated Government imperative of preventing 'benefit tourism' and consequent expenditure is not outweighed by the costs of administering and adjudicating the system, as well as the hardship that is caused by this restrictive test.

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