Upper Tribunal (Administrative Appeals Chamber), August 05, 2016, [2016] UKUT 372 (AAC)

Resolution Date:August 05, 2016
Issuing Organization:Upper Tribunal (Administrative Appeals Chamber)
Actores:Secretary of State for Work and Pensions v MB (JSA) and others (European Union law : free movement)
 
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Secretary of State for Work and Pensions v MB (JSA) (and linked cases)

[2016] UKUT 0372 (AAC)

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CJSA/2042/2015 SSWP v MB

and linked cases

Secretary of State for Work and Pensions v MB (JSA) (and linked cases)

[2016] UKUT 0372 (AAC)

IN THE UPPER TRIBUNAL Case Nos CJSA/2042/2015

ADMINISTRATIVE APPEALS CHAMBER CJSA/1960/2015

CJSA/446/2016

CJSA/827/2016

Before UPPER TRIBUNAL JUDGE WARD

Attendances:

For the Secretary of State: Ms Julia Smyth, instructed by Government Legal Service

For the Claimants MB, AM and VA: Mr Michael Spencer and Mr Martyn Williams, both of Child Poverty Action Group

For the Claimant AB: Ms Mary Shone, Bolton Citizens Advice Bureau

Decisions:

All

I abridge from three months to six weeks the time limit in rule 44(3) of the Upper Tribunal's Rules within which any application for permission to appeal is to be made

CJSA/2042/2015

The appeal by the Secretary of State is allowed. The decision of the First-tier Tribunal sitting at Wolverhampton on 10 February 2015 under reference SC053/14/01022 involved the making of an error of law and is set aside. I remake the decision in the following terms:

MB's appeal against the decision of 14 November 2014 is dismissed. She did not succeed in demonstrating in accordance with regulation 6 of the Immigration (European Economic Area) Regulations 2006 that she had a ``genuine chance of being engaged'', nor has she succeeded in demonstrating that she was a dependant family member in the ascending line of her daughter, SA, at the material time. Consequently she fell to be treated as a ``person from abroad'' for the purposes of her claim to jobseeker's allowance on and from 14 November 2014.

CJSA/1960/2015 (Interim decision)

The appeal by the Secretary of State is allowed to the following extent. The decision of the First-tier Tribunal sitting at Bolton on 17 April 2015 under reference SC122/15/00145 involved the making of an error of law and is set aside. I remake the decision in the following terms:

Inasmuch as AB seeks to contend that she had a genuine prospect of being engaged as at 8 November 2014, her appeal against the Secretary of State's decision of that date fails.

I find as fact that AB was born in 1995. Her mother, JB, was continuously employed between 1 May 2009 and 9 August 2013, in employment which at no point was registered under the Worker Registration Scheme. I further find that JB was in receipt of jobseeker's allowance between 24 September 2013 and 16 February 2014. At all material times, AB lived with her parents. I record that the Secretary of State does not seek to allege there was undue delay between JB's employment ceasing and when she claimed jobseeker's allowance.

I stay the question of whether the above facts and concessions are sufficient to confer on AB a permanent right of residence as a family member of her mother, JB, until after the Court of Appeal shall have given judgment in SSWP v Gubeladze, in which a hearing is due in February 2017, or further order.

AB's claim to be entitled to rely on rights derived from C-507/12 Saint Prix from 1 November 2014 is rejected.

CJSA/446/2016

The appeal by the Secretary of State is allowed. The decision of the First-tier Tribunal sitting at Northampton on 8 October 2015 under reference SC316/15/00513 involved the making of an error of law and is set aside. The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with this decision.

CJSA/827/2016

The appeal by the claimant is allowed. The decision of the First-tier Tribunal sitting at Fox Court on 5 November 2015 (the date on the statement of reasons is in error) under reference SC242/15/05153 involved the making of an error of law and is set aside. The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with this decision.

REASONS FOR DECISION

  1. These cases, which are lead cases behind which a significant number of others are stayed, raise a number of issues concerning the so-called Genuine Prospects of Work (``GPOW'') test. The phrase ``genuine prospects of work'' does not appear in legislation or caselaw. The relevant test is correctly expressed as ``a genuine chance of being engaged'', or sometimes ``genuine chances'': It has not been suggested that the difference between the singular and plural forms is significant and I do not consider that it is. Whilst a jobseeker's chances of being engaged have always been relevant under the definition of ``jobseeker'' under the Immigration (European Economic Area) Regulations 2006/1003 (``the 2006 Regulations''), the point has arisen more prominently following amendments made to the 2006 Regulations by SIs 2013/3032, 2014/1451 and 2014/2761 (together ``the GPOW Regulations''), which required, inter alia, ``compelling evidence'' to be provided. That expression is not defined.

  2. In CJSA/2042/2015, the claimant MB had appealed against the DWP's decision dated 12 November 2014. A summary of the facts can be found at [81]-[87] below. On 10 February 2015 the First-tier Tribunal held that she had met the compelling evidence requirement and allowed her appeal. The Secretary of State appeals, with the permission of the Upper Tribunal. Mr Spencer conceded that the tribunal's decision was in error of law but submits that it should be re-made in MB's favour on the basis that she did have a genuine chance of being engaged or in the alternative was ''a dependant direct relative in the ascending line'' of her daughter, who was a ``worker'' at the material time, with the consequence that MB enjoyed a right to reside.

  3. In CJSA/1960/2015 the claimant AB had appealed against a decision dated 8 November 2014. A summary of the facts is at [96] below. On 17 April 2015 the First-tier Tribunal allowed her appeal on the alternative bases (a) that AB had established a permanent right of residence, based substantially on having been a family member of her parents, and (b) that she satisfied the compelling evidence requirement. The Secretary of State sought to appeal against (a). Subsequently a challenge was added to ground (b) also. The Upper Tribunal gave permission to appeal on both grounds. Ms Shone accepts that, as regards (a), the decision of the First-tier Tribunal was in error of law. She invites the Upper Tribunal, if it were to set aside the decision of the First-tier Tribunal, to re-make the decision in AB's favour on alternative bases, discussed below.

  4. In CJSA/446/2016 the claimant AM had appealed against a decision dated 15 June 2015. A summary of the facts is at [105]-[106] below. On 8 October 2015 the First-tier Tribunal found that he met the test in C-292/89 Antonissen for being a jobseeker and allowed his appeal. The Secretary of State appealed with permission of a judge of the First-tier Tribunal.

  5. In CJSA/827/2016 the claimant VA had appealed against a decision dated 7 May 2015. A summary of the facts is at [118]-[120] below. On 5 November 2015 the First-tier Tribunal found that he had not met the compelling evidence requirement and dismissed his appeal. VA appealed with permission of a judge of the First-tier Tribunal.

  6. Accordingly in CJSA/827/2016 the claimant VA is the appellant and the Secretary of State the respondent. In CJSA/2042/2015, CJSA/1960/2015 and CJSA/446/2016 the Secretary of State is the appellant and the respective claimants MB, AB and AM are the respondents. References to "the claimants'' are to the claimants in all four cases. Where I intend to refer to one claimant only I do so by his or her initials.

  7. I begin by setting out basic features of (income-based) JSA (``JSA'' and ``IBJSA''), before turning to examine the relevant European and domestic legal background against which the GPOW Regulations were made.

    Jobseeker's allowance

  8. JSA requires a claimant, among other things, to be available for employment, to have entered into a jobseeker's agreement, which remains in force, and to be actively seeking employment. Domestic law does not, in general terms, make it a condition of entitlement that a person is likely to succeed in their search. The Jobseekers Allowance Regulations 1996/207 (``the 1996 Regulations'') do however contain provisions, discussed in more detail below, under which the parameters of what constitutes being ``available for employment'' in a particular case may be modified, under which the prospects of success may become relevant. Notwithstanding that they may otherwise meet the conditions of entitlement, by regulation 85A and schedule 5, para 14 of the 1996 Regulations, a ``person from abroad'' has an ``applicable amount'' of £nil and so, in practice, does not qualify at all. However, subject (since 9 November 2014) also to fulfilment of a 3 month actual residence requirement (not an issue in any of the present cases), a person who has a qualifying right to reside in the UK or certain other territories will not be a ``person from abroad''. The qualifying rights for the purposes of IBJSA, unlike those for some other benefits, include the rights under EU law of those who are seeking work. It is to such rights that I now turn.

    The rights of jobseekers under EU law

  9. As is well known, the right of jobseekers under EU law relating to the freedom of movement is derived from the decision of the European Court of Justice in C-292/89 Antonissen. Mr Antonissen was a Belgian national who, having arrived in the UK in 1984, was in 1987 sentenced to two terms of imprisonment for drug-related offences. The Home Secretary ordered his deportation under section 3(5)(b) of the Immigration Act 1971 on the ground that it was ``conducive to the public good''. Council Directive 64/221/EEC gave a degree of protection from deportation to nationals of other Member States who were workers. The Immigration...

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