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Neutral Citation Number:
Reported Number:	R(JSA)3/06
File Number:	CJSA 4065 1999
Appellant:	Collins v Secretary of State for Work and Pensions (C-138/02) [2006] EWCA Civ 376
Respondent:
Judge/Commissioner:	Judge J. Mesher
Date Of Decision:	04/04/2006
Date Added:	15/03/2005
Main Category:	Residence and presence conditions
Main Subcategory:	habitual residence
Secondary Category:	European Union law
Secondary Subcategory:	discrimination by nationality
Notes:	Residence and presence conditions - habitual residence test European Union Law - free movement of workers - discrimination by nationality The claimant was born in the United States and had dual Irish and American nationality. As part of his college studies, he spent one semester in the United Kingdom (UK) in 1978. In 1980 and 1981 he returned there for a stay of approximately ten months, during which he did part-time and casual work in pubs and bars and in sales. He went back to the United States in 1981. He subsequently worked in the United States and in Africa. He returned to the UK on 31 May 1998 in order to find work there in the social services sector. On 8 June 1998 he claimed income-based jobseeker’s allowance (JSA), which was refused, on the ground that he was not habitually resident in the UK. He appealed to an appeal tribunal, which upheld the refusal, stating that he could not be regarded as habitually resident in the UK since (1) he had not been resident for an appreciable time and (2) he was not a worker for the purposes of Regulation No 1612/68, nor did he have a right to reside in the UK pursuant to Directive 68/360. He appealed to the Commissioner, who referred the case to the European Court of Justice for a preliminary ruling on questions of European law. Held by the European Court of Justice that: 1. a person in the circumstances of the claimant was not a worker for the purposes of Title II of Part I of Regulation No 1612/68, but it was for the national court or tribunal to establish whether the term “worker” as referred to by the national legislation at issue was to be understood in that sense (paragraphs 26 to 33); 2. a person in the claimant’s position did not have a right to reside in the UK solely on the basis of Directive 68/360 (paragraphs 34 to 44); 3. in view of the establishment of citizenship of the Union and the interpretation in the case-law of the right to equal treatment enjoyed by citizens of the Union, a habitual residence requirement can be justified only if it is based on objective considerations that are independent of the nationality of the persons concerned and proportionate to the legitimate aim of the national provisions (paragraphs 63 to 66); 4. it is legitimate for the national legislature to wish to ensure that there is a genuine link between an applicant for an allowance in the nature of a social advantage and the geographic employment market in question, and a residence requirement is, in principle, appropriate for the purpose of ensuring such a connection, although it must not exceed what is necessary in order for the national authorities to be able to satisfy themselves that the person concerned is genuinely seeking work in the employment market of the host Member State and its application by the national authorities must rest on clear criteria known in advance (paragraphs 67 to 72). The Commissioner then issued his decision (not reproduced), holding that: 1. the claimant’s position in 1998 was to be “compared with that of any national of a Member State looking for his first job in another Member State and therefore did not fall within the true meaning of the term “worker” in regulation 85(4)(a) of the Jobseeker’s Allowance Regulations 1996; 2. the residence test in the JSA legislation and in Article 10a of Regulation 1408/71 is justified by objective considerations independent of the nationality of the claimant and proportionate to the legitimate aim in the making of the JSA legislation, subject to the proviso that it cannot be applied to deny entitlement to benefit beyond the date at which the relevant national authority has become satisfied of the genuineness of the claimant’s search for work (paragraphs 31 to 47, reproduced at paragraph 44 of the Court of Appeal’s decision). The claimant appealed to the Court of Appeal. Held by the Court of Appeal, dismissing the appeal, that: 1. the proper interpretation of the ECJ’s judgment was that, in the context of an application for an allowance in the nature of a social advantage, a requirement of a “genuine link” with the employment market may (subject always to questions of justification and proportionality) be legitimately imposed by a Member State in addition to an “actively seeking work” requirement (paragraphs 66 to 77); 2. it followed that there was, in principle, scope for a residence test which imports factors which may be irrelevant to the question whether the search for work is genuine and it was clear from the ECJ judgment that in the context of JSA, the habitual residence test in regulation 85(4) is not incompatible with Community law (Swaddling v Adjudication Officer [1999] ECR I-1075 (also reported as R(IS) 6/99) and Nessa v Chief Adjudication Officer [1999] 1 WLR 1937 (also reported as R(IS) 2/00) cited) (paragraphs 78 to 85); 3. a habitual residence test as the sole means of establishing the requisite “genuine link” between an applicant for JSA and the UK employment market is fully compatible with Community law and the proviso imposed in paragraph 45 of the Commissioner’s decision is not to be applied (paragraphs 86 to 88).
Decision(s) to Download:	R(JSA) 3-06 ws.doc