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Neutral Citation Number: 2013 UKUT 21 AAC
Reported Number:
File Number: CIS 886 2008
Appellant: Secretary of State for Work and Pensions
Respondent: RR
Judge/Commissioner: Judge E. Jacobs
Date Of Decision: 15/01/2013
Date Added: 31/01/2013
Main Category: Residence and presence conditions
Main Subcategory: right to reside
Secondary Category:
Secondary Subcategory:
Notes: Reported as [2013] AACR 20. Residence and presence conditions – right to reside – claimant entering and staying in the United Kingdom for purpose of taking up offer of employment actually made The claimant, a German national, had a history of residence and work in the United Kingdom between 1985 and 2002. Her daughter was born in 2000. The father was British and the daughter acquired British nationality. The claimant’s relationship with the child’s father broke down and she returned to Germany in 2002. She came back to the United Kingdom in 2006 after receiving a modest legacy. She also held an offer of employment as a research assistant which involved working from home. Her efforts to find suitable accommodation were unsuccessful – she needed a reliable internet connection. In October she claimed and was awarded jobseeker’s allowance. In December she required urgent medical treatment and claimed income support which was refused on the basis that she did not have a right to reside. At all material times the job offer remained open to the claimant. The First-tier Tribunal had allowed the appeal on a concession made by the Department for Work and Pensions (DWP). The DWP then resiled from that concession and appealed against the tribunal decision. The issue before the Upper Tribunal was whether the claimant could show that she had a right to reside when she claimed income support. There were three possible grounds: (1) whether the claimant fell within the concept of “worker” in Article 39 of the Treaty on European Union (TEU); (2) whether the claimant could establish a right to reside on the basis of the principles established in Case C 34/09 Ruiz Zambrano v ONEm [2011] ECR I-1177; and (3) whether the claimant could establish a derivative right of residence under Article 12 of Regulation 1612/68/EEC. Held, dismissing the appeal, that: 1. the claimant had a right to reside in the United Kingdom for the purpose of accepting an offer of employment actually made: Article 39(3)(a) and (b). At the material time the claimant was still within the scope of Article 39(3)(a) and (b) (now Article 45(3)(a) and (b) Treaty on the Functioning of the European Union). She had not lost that status when she claimed jobseeker’s allowance: there was no mutual exclusivity in being both the holder of a job offer, and claiming a right to reside under Article 39, and being a job seeker, and claiming jobseeker’s allowance. The determination of the duration of the period between arriving and accepting an offer of employment requires an assessment of all the circumstances of each particular case (paragraphs 38 to 61); 2. the claimant could not rely on the principle established in the Zambrano case, which was limited to situations involving third country nationals where the effect of the decision in issue would be to force the Union citizen members of the family to leave the territory of the Union as a whole. The principle in the Zambrano case was a narrow one: Harrison (Jamaica) v Secretary of State for the Home Department [2012] EWCA Civ 1736 applied [62 to 69]; 3. reliance on Article 12 of Regulation 1612/68/EEC (now Article 10 of Regulation 492/2011) was not precluded where the child was a national of the host Member State (disagreeing with the conclusion to the contrary in Secretary of State for Work and Pensions v SW (IS) [2011] UKUT 508 (AAC)) and in the circumstances of this case the claimant could not rely on employment in the earlier period of residence as the basis for claiming a right to reside under Article 12. Whether an absence from the host Member State results in the loss of the ability to claim integration rights will depend upon the particular circumstances of each case. The Upper Tribunal suggested a test for determining when a gap in residence will, and will not, preclude reliance on a period of employment in an earlier period of residence. It observed that the test will always involve considering what has happened in the past, rather than what might happen in the future, and that the longer the absence the more difficult it will be to rely on the earlier period in work (paragraphs 77 to 82). The Upper Tribunal set aside the decision of the First-tier Tribunal as erroneous in law and directed the Secretary of State to investigate whether the other conditions of entitlement for benefit were satisfied.
Decision(s) to Download: [2013] AACR 20ws.doc [2013] AACR 20ws.doc