GE v Secretary of State for Work and Pensions (ESA) (Residence and presence conditions - right to reside) [2017] UKUT 145 (AAC)
Periods of residence and a permanent right of residence - why this can include the initial period of three months under domestic UK law
In GE v Secretary of State for Work and Pensions (ESA) (Residence and presence conditions - right to reside) [2017] UKUT 145 (AAC) (Judge Poynter) the Claimant, a Spanish national, had moved to the UK in April 2010. She made a claim for Employment and Support Allowance (ESA) in March 2015 just short of five years later. The claim was then refused in April 2015, on the basis that she did not have a right to reside.
Held: The Upper Tribunal remitted the case to a new tribunal and directed that it apply the following legal principles when deciding whether the claimant had a permanent right of residence:
1. A former worker, who retains that worker status while he or she satisfies any of the sub-paragraphs of reg 6(2) of the Immigration (EEA) Regs 2006/1003. However, the basis on which the worker status is retained does not have to remain constant over time. For example, a former worker may retain worker status on the basis that she is in duly recorded involuntary unemployment under reg 6(2)(b) or (ba). She may then become temporarily unable to work as the result of an illness or accident. If so, she would continue to retain worker status under reg 6(2)(a). When she recovers and is able to seek work again, reg 6(2)(b) or (ba) will apply once more. If she then decides to improve her job prospects by temporarily ceasing to look for work and embarking on vocational training instead, reg 6(2)(c) will apply; and so on (para 41).
2. Although it is necessary for a person’s involuntary unemployment to be ‘duly recorded’ and for him or her to have ‘registered as a jobseeker with the relevant employment office’ in order to retain worker status under reg 6(2)(b) or (ba), it is not necessary to register as a jobseeker, or to claim JSA, to have a right of residence as a jobseeker (para 46).
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3. The decision maker can take into account a change in circumstances that occurs between the date of a claim and the date a decision is made on the claim. However, the principle can cut both ways. For example a claimant who has not retained worker status may marry another EU national who does retain that status during the period between the claim and the decision. If so, she may have acquired a right of residence as a family member from the date of the wedding. Equally, an ESA claimant with a right of residence may get better during that period and return to work, thereby losing entitlement to benefit (para 57).
4.Under EU Law, periods of residence purely as a jobseeker are not counted as qualifying periods of residence (Ziolkowski C-424/10). The position, however, is different under domestic UK law, as periods of residence solely as a jobseeker can count towards a permanent residence under reg 15(1)(a) because it is ‘in accordance with’ reg 6(1)(a) of the EEA Regs. EU law allows Member States to make laws ‘which would be more favourable to persons covered by the Directive’. On this footing, the Judge concludes that residence for the initial period of three months counts towards the subsequent acquisition of a permanent right of residence under reg 15(1)(a) because it is “in accordance with” reg 13 of the EEA Regs (para 75).
