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Neutral Citation Number:	2014 UKUT 32 AAC
Reported Number:
File Number:	CJSA 3172 2012
Appellant:	VP
Respondent:	Secretary for Work and Pensions (JSA)
Judge/Commissioner:	Judge C G Ward
Date Of Decision:	23/01/2014
Date Added:	30/01/2014
Main Category:	European Union law
Main Subcategory:	free movement
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2014] AACR 25. European Union law – self-sufficiency for Article 7(1)(b) of Citizenship Directive – when to be considered – whether wages can be taken into account – whether entitlement to NHS treatment is “comprehensive sickness insurance” – impact of C-140/12 Brey The claimant was a Lithuania national, single and with no dependants. He came to the UK in May 2005, following the accession of Lithuania and the other A8 States to the European Union on 1 May 2004. He survived by working in a succession of low paid manual jobs, often either temporary or for fluctuating hours. In July 2010 he was issued with a worker registration certificate by his last employer but never completed the 12 months’ certificated employment under the worker registration scheme. When this job ended his claim for jobseekers allowance (JSA) failed on the ground that he did not have the right to reside. The First-tier Tribunal (F-tT) disallowed his appeal, holding that he had not completed 12 months of registered employment under the Accession (Immigration and Worker Registration) Regulations 2004 and had not completed 5 years’ continuous residence as a worker or as a self-sufficient person. He appealed to the Upper Tribunal (UT). Held, allowing the appeal, but re-making the decision in the same terms: 1. whether derogation from Article 7(3) of Directive 2004/38/EC (the Citizenship Directive), under the Accession (Immigration and Worker Registration) Regulations 2004, was lawful was not covered by the ratio of Zalewska v Department for Social Development [2008] UKHL 67, reported as R 1/09 (IS). It was not necessary to decide this issue as the appeal failed on other grounds and there was no disproportionate impact on the claimant (paragraphs 31 to 64); 2. the claimant could not rely on Article 7(3) of the Citizenship Directive because he had delayed too long in registering as a jobseeker: Secretary of State for Work and Pensions v MK (IS) [2013] UKUT 0163 (AAC) and Secretary of State for Work and Pensions v Elmi [2011] EWCA Civ 1403; [2012] AACR 22. Therefore, despite the uncertainty as to whether the derogation was lawful, there was no reason to make an Article 267 reference under the Treaty on the Functioning of the European Union (paragraphs 49 to 61); 3. the claimant failed the test of self-sufficiency under the Citizenship Directive as it had to be met at the outset of the five-year period relied upon for permanent residence: Case C-140/12 Brey. While there was little limitation over the source of the resources, the legislation presupposed a degree of stability to them. It was also not possible to rely on wages to assert self-sufficiency against the Member State in which those wages were earned: MA & Others (EU national; self-sufficiency; lawful employment) Bangladesh [2006] UKAIT 00090 (paragraphs 83 to 96); 4. the claimant could not assert that he had comprehensive sickness insurance for that same five-year period by virtue of any rights for treatment under the National Health Service: FK (Kenya) v Secretary of State for the Home Department [2010] EWCA Civ 1302. The European Commission’s Press Release IP/12/417 of 26 April 2012 was contrary to Article 7(1)(b) of the Citizenship Directive and provided no reason to consider an Article 267 reference on this point: obiter dicta in Secretary of State for Work and Pensions v SW (IS) [2011] UKUT 508 (AAC) and AS v HM Revenue and Customs (CB) [2013] NICom 15 not followed (paragraphs 98 to 105); 5. the decision in Brey provided no assistance to the claimant. The argument, that the burden he posed by claiming was not unreasonable, rendered meaningless the protection provided for Member States under the self-sufficiency provisions. Properly understood, Brey addressed the position of someone who had an Article 7 right but where something then occurred so as to make a claim necessary. This was not the claimant’s situation (paragraphs 106 to107); 6. the right to reside test was not unlawfully discriminatory on the grounds of nationality: Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11; [2011] 1 WLR 783; [2011] AACR 34 (paragraph 108); 7. the right to reside test was not incompatible with Article 70(4) of Regulation 883/2004 (paragraphs 109 to 110).
Decision(s) to Download:	[2014] AACR 25bv.doc