|
Notes:
|
Person from abroad - habitual residence - British citizen who had worked in France returning to seek work in United Kingdom - whether a condition of habitual residence requiring completion of an appreciable period of residence is compatible with Article 10a of Council Regulation (EEC) 1408/71
The claimant, who was British, had worked in France for the majority of the period from 1980 to 1988 although he continued to pay United Kingdom National Insurance contributions and returned occasionally for visits. Following six months' employment in the United Kingdom, he returned to France and was employed continually there until late 1994, when he was made redundant. He returned to the United Kingdom on 8 January 1995 and claimed income support, stating that he no longer wished to take a job that entailed having to spend long periods working abroad. His claim was disallowed on the ground that he was not habitually resident in the United Kingdom and was therefore a "person from abroad" within regulation 21(3) of the Income Support (General) Regulations 1987. A tribunal allowed his appeal on the ground that he had shown a settled purpose of making the United Kingdom his regular abode for a significant period of the future, as at the date of claim. On a further appeal by the adjudication officer, the Commissioner held, in an interim decision, that the concept of habitual residence required not only that a claimant have a settled intention of residing in the United Kingdom but also that he had actually resided there for an appreciable period. He found that the claimant had become habitually resident in the United Kingdom from 4 March 1995 (eight weeks after his arrival) but, in relation to the period before then, he referred to the European Court of Justice the question whether making entitlement to income support conditional upon habitual residence was compatible with Article 48 of the Treaty of Rome, in circumstances where a person had worked and been habitually resident in one Member State and had then exercised the right to freedom of movement for workers to move to, and work in, another Member State before finally returning to the first Member State in order to seek work.
Held, that:
1. before considering Article 48 of the Treaty, it must first be determined whether the provisions of Council Regulation (EEC) 1408/71 provide the national court with the guidance it needs in order to adjudicate in the case pending before it (paragraph 21);
2. by virtue of its listing in Annex IIa to Council Regulation (EEC) 1408/71, income support is a special non-contributory benefit, governed by Article 10a (paragraph 24);
3. under Article 10a, payment of a benefit such as income support is conditional upon the claimant residing in the territory of the Member State under whose legislation he is entitled to that benefit and, pursuant to Article 1(h), "residence" means "habitual residence" for the purposes of the Regulation and therefore has a Community-wide meaning (paragraphs 25 and 28);
4. the phrase "the Member State in which they reside" in Article 10a refers to the State in which the persons concerned habitually reside and where the habitual centre of their interests is to be found and, in that context, account should be taken in particular of the claimant's family circumstances, his reasons for moving, the length and continuity of his residence, whether he is in stable employment and his intention as it appears from all the circumstances (paragraph 29);
5. for the purposes of that assessment, the length of residence in the Member State in which the benefit is claimed cannot be regarded as an intrinsic element of the concept of residence within Article 10a (paragraph 30);
6. therefore, Articles 10a and 1(h) preclude the Member State of origin - in the case of a person who has exercised his right to freedom of movement in order to establish himself in another Member State, in which he has worked and set up his habitual residence, and who has returned to the Member State of his origin, where his family lives, in order to seek work - from making entitlement to a benefit within Article 10a conditional upon habitual residence in that State, which presupposes not only an intention to reside there, but also completion of an appreciable period of residence there.
In the light of the Court's ruling, the Commissioner held, in his final decision, that the claimant was entitled to income support for the outstanding period from 9 January 1995 to 3 March 1995. |
