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Neutral Citation Number: 2009 UKUT 287 AAC
Reported Number:
File Number: CIS 184 2008
Appellant: Secretary of State for Work and Pensions
Respondent: FE
Judge/Commissioner: Three-Judge Panel / Tribunal of Commissioners
Date Of Decision: 18/10/2011
Date Added: 21/01/2010
Main Category: European Union law
Main Subcategory: free movement
Secondary Category: European Union law
Secondary Subcategory: workers
Notes: Reported as [2012] AACR 22. European Union law – free movement of workers – right of residence – meaning of “registered as a job-seeker” The claimant, a French single parent, arrived in the United Kingdom in September 2005 with her young child. She obtained employment, but after six months was made redundant. In June 2006 she claimed income support at her local Jobcentre Plus office. It was accepted that she had established that she was seeking work by ticking a box on a habitual residence document and that she would have qualified for jobseeker’s allowance if she had claimed that benefit. The Secretary of State refused her claim on the basis that she was a “person from abroad” and therefore, by regulation 21AA of the Income Support (General) Regulations 1987, entitled to an applicable amount of nil. She appealed to an appeal tribunal, which allowed her appeal, holding that she had taken sufficient steps to preserve her status as a worker for the purposes of Article 7(3)(c) of Directive 2004/38/EC (the Directive), and therefore was exempted by paragraph 4(c) of regulation 21AA of the 1987 Regulations from being treated as a person from abroad. Article 7(3)(c) requires that a citizen is in duly recorded involuntary unemployment and has registered as a job-seeker with the relevant employment office. It was common ground that the claimant met the first condition and that the expression “job-seeker” in the second condition was not intended to bear the specific meaning of the word “jobseeker” as used within the United Kingdom in legislation establishing jobseeker’s allowance, but the Secretary of State argued before the Upper Tribunal that it was nevertheless necessary for a Union citizen to make a successful claim for jobseeker’s allowance (or national insurance credits), with the associated mechanisms for control and monitoring, in order to meet the registration condition of Article 7(3)(c). The Upper Tribunal held by a majority that the Secretary of State had not shown that the United Kingdom had defined, either by legislation or administrative practice, specific mechanisms as being the only ways in which an individual could, for the purposes of Article 7(3)(c) “register as a job-seeker with the relevant employment office”. The tribunal was therefore entitled to hold that the Secretary of State’s factual concessions meant that the claimant succeeded in her appeal. Judge Howell QC, dissenting, held that on the plain wording of the provisions in force at the relevant time the second requirement introduced for the first time by Article 7(3)(c) was additional to and more specific than the first, in requiring a procedure to be gone through with the employment authorities in the host Member State to verify and establish a genuine continuing status as a job-seeker and hence connection with the labour market in that State. The Secretary of State appealed to the Court of Appeal. Held, dismissing the appeal, that: 1. the Directive had to be seen in its context as a measure relating to the rights which derived from Article 45 of the Treaty on the Functioning of the European Union, which secures freedom of movement for workers within the Union by abolishing discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment (paragraph 10); 2. the reference in Article 7(3)(c) to registration as a job-seeker enabled a Member State to flesh out the concept of registration so as to oblige a claimant in relation to a particular social benefit to comply with reasonable continuing requirements which would enable the Member State to monitor his conscientiousness as a seeker of employment. However, in the absence of any express requirements in the United Kingdom legislation in relation to income support, it was not permissible to construe the concept of “registration” in Article 7(3)(c) as embracing a requirement of EU law obliging a claimant to subject himself to continuing monitoring and it was consistent with the ordinary and natural meaning of the word “register” to construe the registration requirement in Article 7(3)(c) as being satisfied by the claimant’s ticking the box to confirm that she was seeking employment (paragraphs 12 to 13); 3. while the Directive envisaged that a host Member State could prescribe a control procedure over and above registration to ensure that work-seekers’ benefits were granted only to those actively seeking employment, Parliament had patently omitted to prescribe such control mechanisms in relation to income support, and since the Directive was intended to simplify and strengthen the Treaty right of free movement of workers, a prescriptive interpretation of Article 7(3)(c) would fly in the face of the requirement of legal certainty under EU law with its emphasis on “specificity, precision and clarity” in the implementation of obligations (paragraphs 17 to 22); 4. (per Moses LJ) the Upper Tribunal in its majority decision failed properly to recognise that Article 7(3)(c) did impose two requirements, both being in duly recorded involuntary employment and registration as a job-seeker. But all that followed from that was that the Directive imposed upon Member States an obligation to put in place a lawful system of registration whereby that Member State can undertake monitoring and control in order to assess whether a particular applicant has in truth a genuine link with economic activity in this country. However, in the present case there was a total failure to put in place a system of registration that satisfied the obligations of legal certainty. Absent such a lawful system for registration, it was both unlawful and unjust, for the Secretary of State to decide that the claimant was not entitled to income support (paragraphs 26 to 27).
Decision(s) to Download: [2012] AACR 22bv.doc [2012] AACR 22bv.doc  
[2012] AACR 22ws.doc [2012] AACR 22ws.doc