24 Oct 2016, 42 mins ago

The Upper Tribunal confirmed last month that female EU citizens can expect to retain ‘Worker’ status for a year when off-work, meaning that they will continue to be lawfully resident in the UK during that time if they have exercised their free movement rights to migrate to the UK. Consequently they will be able to access the full range of social security and social assistance benefits that impose a right to reside test during that time.

The case followed an earlier decision by the Court of Justice of the European Union (CJEU) case C-507/12 St Prix v Secretary of State for the Work and Pensions [2015] 1 CMLR 5. I

The European Court in St Prix held that Article 45 TFEU, which provides for free movement of workers between member states, must be interpreted as meaning that a woman who has given up work, or who is seeking work, as a result of pregnancy and the aftermath of childbirth retains the status of ‘worker’, within the meaning of that article.

St Prix was concerned with a woman who needed 26 weeks (½ a year) of retained Worker status and allowed for the retention of worker status for women in such cases, provided they return to work or find another job within a “reasonable period” after the birth of the child.

The Upper Tribunal in SSWP v SSF and others was a social security case, involving the granting and/or withdrawal of benefits such as income support, housing benefit and council tax benefit, which are all subject to a “right to reside” test. Nevertheless, the case has obvious implications for immigration as the principles laid down may be deployed in immigration cases and by applicants (and their families) wishing to establish or maintain a legal right of residence under the Immigration (European Economic Area) Regulations 2006.

SSWP v SSF and others is further important as it moved the position on to women who needed to establish 52 weeks (1 year) of retained Worker status while pregnant and in period following birth, from 26 weeks in St Prix.

The case also establishes the following propositions:

1. A “St Prix right” may be established prospectively as well as retrospectively. This means that a woman who wishes to invoke the benefit at the outset need not prove that she will, or that she did, return to work or find another job within a reasonable period after the birth of her child. It is sufficient for her to have an intention to do so. However, the accrual of the St Prix right on this basis does not mean that recognition of the right may not be terminated later on, looking forward for the period after a reasonable period is deemed to have passed.

2. The St Prix right starts, ordinarily, 11 weeks prior to the expected date of birth but this starting point may be displaced in particular cases.

3. The reasonable period to retain the St Prix right is, as a matter of practice, 52 weeks (1 year). The Government/Secretary of State had argued for 26 weeks (½ year) so this is a major victory on behalf of female workers. In the circumstances of a particular and unusual case the period may be longer.

4. A woman who had already retained Worker status (as a former Worker who was job-seeking) before she became pregnant (i.e. under article 7(3) of Directive 2004/38/EC), may enjoy the St Prix right during her maternity period and exit that period and enjoyment of theSt Prix right by becoming a jobseeker who retains Worker status again (as opposed to returning to work or finding another job) without compromising her enjoyment of the St Prix right during the period she needed to rely on it.

5. The St Prix period counts towards the accumulation of lawful residence necessary to acquire an EU right of permanent residence.

For the time being, the principles established by SSWP v SSF and othersremain relatively untested in the Immigration Tribunals. Given the extension of the “reasonable period” for which a woman can have a right to reside during pregnancy and the aftermath of childbirth to 52 weeks (and not 26 weeks as proposed by the Secretary of State), however, there is certainly scope for their increasing use within immigration forums. Watch this space.