Collins v Secretary of State for Work & Pensions

A Member State may require a jobseeker claiming a benefit intended to facilitate access to employment to show a genuine link with its geographic employment market. That requirement is distinct from actively and genuinely seeking work. A residence requirement may establish that link if it is objectively justified, independent of nationality and proportionate. The habitual residence test in regulation 85(4) of the Jobseeker’s Allowance Regulations 1996 is compatible with Community law. The final sentence of paragraph 72 of the ECJ’s judgment did not require an additional proviso allowing the test to be displaced whenever a genuine link could be shown by other evidence.

Brian Collins, a dual US and Irish national, arrived in the United Kingdom on 31 May 1998 intending to seek work and claimed income-based jobseeker’s allowance. The adjudicating officer and appeal tribunal treated him as a person from abroad. The Social Security Commissioner set aside the tribunal’s decision and referred three questions to the ECJ. Following the ECJ’s judgment dated 23 March 2004 ([2004] All ER (EC) 1005), the Commissioner found that Mr Collins was not a worker for the relevant purpose and dismissed his appeal on the justification issue. The appeal concerned the proper interpretation of the ECJ’s answer on whether habitual residence could be required despite a genuine search for work.

The appeal was unanimously dismissed. Lord Justice Jonathan Parker gave the judgment, with Lord Justice Maurice Kay and Lord Justice Brooke agreeing.

1. The ECJ’s judgment had to be read as a whole. It distinguished between a genuine application or active search for work and the separate question whether the claimant had established a genuine link with the host Member State’s employment market.
2. A Member State may legitimately require that genuine link in addition to a requirement that the claimant is actively seeking work. The reasoning in D’Hoop and the later judgment in Bidar supported treating integration or connection with the relevant market as a free-standing issue.
3. A residence requirement may be justified where it is based on objective considerations independent of nationality and is proportionate to the legitimate aim of establishing the requisite link. The habitual residence test was a recognised and flexible means of addressing that issue, as illustrated by Swaddling and Nessa.
4. The final sentence of paragraph 72 of the ECJ’s judgment did not mean that the only legitimate question was whether the claimant was genuinely seeking work on a particular day. It did not require factors relevant to habitual residence to be disregarded merely because they were irrelevant to the narrower question of active job-seeking.
5. The Commissioner had erred in imposing a proviso that the habitual residence requirement must fall away whenever a genuine link could be established on other grounds. Community law left it to the national legislature to require a genuine link and prescribe how it was to be established. The Court therefore dismissed the appeal.

1. Court of Appeal (Civil Division) dismissed the appeal against the Social Security Commissioner’s decision. [2006] EWCA Civ 376
2. Social Security Commissioner dismissed Mr Collins’s appeal in a decision dated 4 March 2005, following the ECJ’s preliminary ruling on the questions referred to it.
3. Earlier proceedings the appeal tribunal had dismissed the claim. The Commissioner set that decision aside and referred questions concerning worker status, residence rights and the compatibility of the habitual residence condition with Community law.