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Neutral Citation Number:	2015 UKUT 502 AAC
Reported Number:
File Number:	CIS 204 2013
Appellant:	(1) Secretary of State for Work and Pensions (2) ADR (3) CS
Respondent:	(1) SFF; (2) Secretary of State for Work and Pensions; (3) LB Barnet & Secretary of State for Work and Pensions
Judge/Commissioner:	Judge C G Ward
Date Of Decision:	10/09/2015
Date Added:	05/10/2015
Main Category:	European Union law
Main Subcategory:	workers
Secondary Category:	European Union law
Secondary Subcategory:	free movement
Notes:	Reported as [2016]AACR 16 European Union law – whether worker status retained when not employed in later stages of pregnancy – effect of CJEU judgment in Saint Prix The three claimants, all European Union nationals, had been either working or job-seeking in the UK before claiming benefits because either they were in the late stages of pregnancy or in the aftermath of childbirth. The benefits claimed were subject to a “right to reside” test and consequently each claimant had to establish that she had “worker” status for the purposes of Article 45 of the Treaty on the Functioning of the European Union (TFEU). Worker status would have given two of the claimants the necessary “right to reside” at the time of their claim, while the issue for the third was whether she had previously enjoyed worker status and thus had the right of permanent residence under Article 16 of Directive 2004/38. Following the rejection of their respective claims they all appealed and eventually the cases came before the Upper Tribunal (UT) which initially stayed them pending the decision in Saint Prix, C-507/12, EU:C:2014:2007; [2014] AACR 18. The issues before the UT involved the interpretation and application of the decision in the Saint Prix case. Held, allowing two of the appeals and deferring a decision on the third, that: 1. the concept of “worker” within the meaning of Article 45 of TFEU had to be interpreted broadly. Fundamental to the question of worker status was whether the claimant was in the employment market. Late pregnancy and childbirth did not, of themselves, take a woman out of the employment market and outside Article 45. The issue was primarily the woman’s intention, subject to the special protection conferred in Saint Prix. Saint Prix did not create a condition precedent to the right coming into existence but, where it was not met, a condition subsequent for terminating the right. A woman was protected by her worker status until such time, not exceeding the “reasonable period” contemplated by Saint Prix, as she showed an intention not to be part of the employment market. The right approach practically and legally was that a woman retained worker status until there was reason to suppose otherwise. That was consistent with section 12(8)(b) of the Social Security Act 1998, which prevented a tribunal from taking into account “any circumstances not obtaining at the time when the decision appealed against was made”. The “circumstances obtaining” could properly include a woman's intention to return to work (paragraphs 19 to 24); 2. Saint Prix rights were available, where the necessary conditions were met, to those who had exercised the right to freedom of movement for workers and had been employed in a Member State other than that of their residence. They were also available to those who, by meeting the conditions of Article 7(3) of Directive 2004/38/EC, retained worker status while looking for work. Accordingly, a person could enter the period of Saint Prix rights either having been employed immediately beforehand or having retained worker status pursuant to Article 7(3) (paragraph 25); 3. the Saint Prix right started when the reason for “giving up work or seeking work” was “the physical constraints of the late stages of pregnancy and the aftermath of childbirth” (paragraph 26); 4. the Saint Prix judgment allowed for differing periods in different Member States and a national court had to take account of all the specific circumstances of any case in determining the “reasonable period”. In the UK the “reasonable period” was to be determined taking into account the statutory 52-week period of ordinary and additional maternity leave and it would be an unusual case where the period was other than 52 weeks (paragraphs 18, 35 to 36); 5. the expression “returns to work or finds another job” extends to the situation where a person retained worker status under Article 7(3)(b) or (c) at the start of the period and returned to work-seeking within the meaning of those provisions (paragraphs 38 to 43); 6. a Saint Prix right could contribute to the period of time needed to acquire a right or permanent residence under Article 16 of the Directive; Saint Prix applied (paragraph 44). Editor’s note: The decision in the third case was also allowed following the Supreme Court’s decision in Mirga v Secretary of State for Work and Pensions [2016] UKSC 1; [2016] AACR 26.
Decision(s) to Download:	[2016] AACR 16ws.doc