The case of GE v. SSWP (ESA) [2017] UKUT 145 (ACC) sets out how the Immigration (European Economic Area) Regulations 2006 (since replaced with the 2016 version), are in some areas, more generous than EU law itself by concluding that an initial right of residence or status as a job-seeker could count towards permanent residence for an EEA national.

Background

The case is a decision of the Upper Tribunal relating to the entitlement of an EEA benefit claimant to Employment Support Allowance (ESA). The facts of the case will not be of significance in the immigration field, except to note that it was important to establish the EEA nationals statuses over three periods in order to determine whether they had qualified for permanent residence. The initial period related to the three month right of residence in the UK, followed by two periods of potential job-seeking. The potential statuses of the appellant under EU law was remitted to the First Tier Tribunal for further consideration. UT Judge Poynter went on to make the following observations about the acquisition of permanent residence under EU law and the EEA Regulations.

EU law

UT Judge Poynter found that under Directive 2004/38/EC, neither an initial right of residence or status as a job-seeker under the UK’s regulations could count towards permanent residence for an EEA national. Article 6 and Article 7 of Directive set out the rights of Union citizens to reside in the territory of other Member States:

• Article 6 covers an initial 3 month residence on the production of a valid passport or ID card (providing the EEA national is not an unreasonable burden on the social assistance system of the member state).
• Article 7 sets out an extended right of residence beyond three months for workers, self-employed persons, self-sufficient persons, students, family members and those with retained status.

Article 16 of the Directive provides for permanent residence for a qualifying person. The Directive however only allows time spent in a Member State under Article 7 to counts towards permanent residence, not time spent under Article 6 (Tomasz Ziolkowski (C-424/10) and Barbara Szeja and Others (C-425/10) v Land Berlin).

It was noted that “job-seekers” are not explicitly included in Article 7. Therefore, a person whose five year qualifying period includes time spent as a jobseeker, could not benefit from Article 16 of the Directive as they will not hold continuous residence under this Article (this applies to a jobseeker as defined in Reg 6(1)(a) rather than a jobseeker who has retained worker status).

There is an argument based on Antonissen C-292/89 that as a matter of EU law the term “worker” must include a period of seeking work, although such a period is not clearly defined.

The UK regulations

The Judge considered the position under the Directive to be at odds with the more generous provisions of the EEA Regulations. This required consideration of the impact of Article 37 of the Directive:

Article 37 – More favourable national provisions

The provisions of this Directive shall not affect any laws, regulations or administrative provisions laid down by a Member State which would be more favourable to the persons covered by this Directive.

Regulation 15 sets out that a person can acquire permanent residence where they have spent 5 years continuous residence in the UK in accordance with the Regulations (Reg 15(1)(a)(b)). Residence in accordance with the EEA Regulations would include time spent with an initial right of residence under Regulation 13, as well as an extended right of residence under Regulation 14 where the qualified status is held as a jobseeker under Regulation 6(1)(a).

UT Judge Poynter resolved the conflict in EU and domestic legislation by determining the wording of the EEA Regulations should be given their ordinary meaning in spite of the principle that UK domestic legislation should be interpreted in accordance with EU law. He further observed with reference to jobseekers that it must have been a policy choice for the UK to include them in the EEA Regulations as there was no requirement under the Directive to do so.

So, we have the situation where domestic legislation provides more generous provisions then EU law by allowing periods which may not have previously counted towards permanent residence as a matter of course.

(Ed. Why this cannot be applied to, for example, comprehensive sickness insurance, is a mystery. The UK could have more generous provisions but has chosen not to.)