Two recent cases in the Administrative Appeals Chamber of the Upper Tribunal have clarified when a worker might in EU law retain his or her status as a worker during a period of unemployment. The cases are KS v Secretary of State for Work and Pensions [2016] UKUT 269 AAC and MB and others v Secretary of State for Work and Pensions [2016] UKUT 372 AAC.

As background, genuinely free movement of workers requires that a worker can look for work and can be unemployed. Without these corollary rights, there would be a massive disincentive to a worker moving from one EU Member State to another and supposedly “free” movement would be severely curtailed. It is this that David Cameron and his advisers utterly failed to comprehend when seeking to renegotiate UK membership of the EU and that “soft” or even “medium rare” pro-single market Brexiteers equally fail to comprehend. A supposed “limit” on free movement of workers such as requiring a job before a worker moves country is actually considered a total abrogation of the basic principle in EU law. Compromise is stock in trade for politicians; not so for laws and their judges.

The leading EU case on when a person might be considered a worker despite unemployment is Antonissen (C-292/89). In summary, the Court of Justice held that a person should be permitted a period of at least six months in order to find work, and would be a “worker” during this time, but that even at the end of that six month period would remain a worker if he “provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged.”

The UK’s Immigration (EEA) Regulations 2006 recognise a “jobseeker” as a qualified person under EU law (regulation 6(1)(a)). However, the UK regulations have been repeatedly amended in recent years and now arguably impose additional requirements over and above Antonissen. The period of six months was reduced to 91 days and “compelling evidence” of seeking employment and having a genuine chance of being engaged must be submitted according to the regulations. Whether or not these additional requirements were compatible with EU law was one of the issues to be decided in KS and MB.

In the first case, KS, the judge held that the requirement for “compelling evidence” did not mean that a higher standard of proof was required than the normal civil standard:

I interpret “compelling evidence” to be no more than the requirement for evidence to establish on a balance of probabilities that the claimant is continuing to seek employment and that he has genuine chances of being engaged. I read “compelling” to mean no more than in the context of the circumstances that have arisen i.e. that the claimant has not been able to obtain employment during the relevant period that the onus is on the claimant and having regard to the circumstances of the case the judge considering the matter is entitled to decide the weight and quality of evidence required to establish that the claimant is continuing to seek employment and has genuine chances of being engaged.

In the second case, MB and others, the tribunal grouped several lead cases together to consider whether the UK’s new “compelling evidence” test of genuinely searching for and finding work was compatible with EU law.

In the course of considering this question, the tribunal also considered the meaning of the “genuine chances” test:

It seems to me that what is contemplated are chances that, as well as being founded on something objective, offer real prospects of success in obtaining work. Such a view is, moreover, consistent with both the French version (“des chances véritables d’être engagé”) and with the German (“dass er mit begründeter Aussicht auf Erfolg Arbeit sucht.”). It is a significantly higher level than the “not hopeless” suggested by the skeleton arguments for the claimants.

It is not necessary to be able to point to a particular job, although the offer of a specific job will be powerful evidence of a genuine prospect, and it is necessary to look forward to assess whether there is a genuine chance, for example taking into account the fact that the person intends to undertake a qualification or some training.

The tribunal holds that the prospect of being engaged must be within a reasonable time in order to satisfy the test. There is no set period, so this will vary from case to case but it is not likely to include a prolonged period in order for the person to obtain further qualifications.

On the issue of whether the “compelling evidence” requirement contravened EU law by going further than Antonissen allowed, the tribunal records the official Government position as being this:

the UK is clearly entitled to require that an individual demonstrate a more compelling case at the conclusion of a six month period of unsuccessful job seeking than he has hitherto. In a nutshell, that is what the “compelling evidence” requirement is intended to achieve. It amounts to no more than applying Article 14(4)(b) of the Directive at the conclusion of the six month “Antonissen period”.

If this was all that was meant by the “compelling evidence” requirement then this was acceptable. The tribunal sounds somewhat skeptical that this was the intention of the change of wording, though, and goes on to summarize in plain language the real test to be applied (paragraph 57):

Insistence on “compelling” evidence may, if care is not taken, all too easily result in raising the bar above the level I have found to be required, namely chances that are founded on something objective and offer real prospects of success in obtaining genuine and effective work within a reasonable period.

The finding is consistent with the earlier KS decision and both cases will be helpful to EEA nationals seeking to establish a right to permanent residence in the aftermath of the Brexit vote where they have experienced periods of job search or unemployment in excess of 6 months.

I am grateful to ILPA for highlighting these cases.