In what amounts to a defeat for the government, the Supreme Court has decided in this case to refer to the European Court of Justice questions on the interpretation of the EU Citizenship Directive, 2004/38.

From the government’s point of view, the case is about the need to strictly limit the circumstances in which benefits have to be paid to EU citizens in the UK. Ms Saint Prix claims her EU free movement rights were breached when she was refused income support on the grounds that she had no legal right to reside here – and alternatively, that the UK and EU rules discriminate against her on grounds of sex.

Jessy Saint Prix is French, and came to this country in 2006. She worked as a teaching assistant, then studied for a PGCE – but left the course when she became pregnant. She went back to temping as a nursery assistant, but stopped in March 2008 on the advice of her GP, when she was six months pregnant, to look for less physically demanding work. She didn’t find any immediately – and so a week later claimed income support. She was turned down on the basis that she had no EU law right to reside in the UK. Income support regulations make entitlement dependent on a right to reside, and award “nil” benefit to a single person from abroad (see the Income Support (General) Regulations 1987, Schedule 7 paragraph 17 and regulation 21AA of those Regulations, inserted by regulation 6(3) of the Social Security (Persons from Abroad) Amendment Regulations 2006).

The argument for Ms Saint Prix was based on broad EU law principle: having worked in the UK, having done genuine vocational study, then having remained economically active until she was unable to continue because of her pregnancy, and become a genuine jobseeker, she must, only a week later, have retained a sufficient genuine link to the labour market to remain a “worker” for the purposes of EU law. Therefore she did have a right to reside here under article 7 of the Citizenship Directive, which says:

1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) are workers or self-employed persons in the host Member State ..

It could not be right for the definition of a worker in EU law to be so narrow as to exclude a woman who had been economically active and who had simply had to seek a different kind of work because of pregnancy. If the provisions did have this effect, they discriminated against pregnant women on the grounds of sex.

The DWP’s argument in response is quite literalist, relying on the strict terms of article 7.3 of the Directive:

… a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:

(a) he/she is temporarily unable to work as the result of an illness or accident;

(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;

(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;

(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.

Not being ill or injured, having given up temping voluntarily and not being in vocational training, DWP argued, Ms Saint Prix fell outside article 7.3, which is an exhaustive list of those who retain the right of residence as “workers” though not in actual work.

Ms Saint Prix won her appeal  against the DWP’s decision in the First Tier Tribunal, but lost in the the Upper Tribunal, which allowed the DWP’s appeal. The Court of Appeal also backed the government, thinking itself bound by the the Court of Appeal’s decision in Work & Pensions Secretary v Dias (which held that a woman was no longer a worker when she decided not to return to work after the end of her maternity leave). The Court of Appeal saw the position in EU law as acte clair, requiring no reference to the European Court. The Supreme Court disagrees, though – and has referred the case to the ECJ.

DWP’s argument is unduly literal, in the context of the Citizenship Directive: the fundamental rule when interpreting EU legislation is the need to take a purposive approach, reading the provisions in the light of their free movement objective. But even if you do take a literal approach, DWP’s argument faces difficulty. A literal focus on the “exhaustive” nature of article 7.3, which lists categories of person who are no longer a worker but must be treated as keeping that status, begs the question of whether Ms Saint Prix remained a worker all the time under article 7.1 – and so did not need to fall back on article 7.3.

In addition in this case, the general principle of equal treatment in EU law is also relevant to interpretation: it surely would be problematic in terms of equal treatment, as Richard Drabble QC argued for Ms Saint Prix, if the Directive truly meant that a pregnant woman lost her free movement rights when others who are ill or injured do not. It’s not easy to understand the Court of Appeal’s view that Dias is binding authority: choosing not to return to work after giving birth in order to care for a child, like Ms Dias, is very different from choosing to look for a different type of work as Ms Saint Prix did, because of the physical constraints of pregnancy. The cases are easily distinguished.

So it’s not surprising the Justices took only a fortnight to decide unanimously to make a reference. Lady Hale arguably reasons in a slightly heretical way in paragraph 21 when she focuses on the intention of the EU legislators rather then on the purpose of the Directive itself:

The Supreme Court is not persuaded that the case of either side is acte clair. We believe it likely that the Council and Parliament did think, when enacting the Citizenship Directive, that the Directive was codifying the law as it then stood. But we are not persuaded that in doing so it was precluding further elaboration of the concept of ‘worker’ to fit situations as yet not envisaged.

In broad terms her approach is surely right, though, as is her conclusion.

DWP lawyers must feel today’s judgment is a defeat – and they’re right. It’s unlikely the ECJ will be persuaded by British literalism and see a narrow focus on article 7.3 as the answer. I expect it to rule in favour of Ms Saint Prix, seeing her as a worker within the meaning of article 7.1(a) while she was genuinely seeking suitable work during pregnancy.

2012-10-31T13:07:29+00:00Tags: , , , , , |