Secretary of State for Work and Pensions v Elmi

For retention of worker status under Council Directive No.2004/38/EC, registration as a job seeker does not automatically require a claim for Job Seekers Allowance or participation in enhanced monitoring. A Member State may prescribe reasonable continuing requirements to check the claimant’s genuine link with economic activity, but those requirements must form part of a lawful, specific, precise and clear domestic regime. Where domestic law has not created such a regime for Income Support, the Secretary of State cannot derive an additional benefit-specific registration condition from Article 7(3)(c). A claimant who attended the relevant employment office, genuinely indicated that she was seeking work and was permitted to claim Income Support met the registration requirement. The appeal was dismissed.

The respondent, a French single parent, arrived in the United Kingdom in September 2005, obtained employment and was made redundant after six months. She claimed Income Support on 20 June 2006, but the claim was refused. Her appeal succeeded before an appeal tribunal. The Upper Tribunal dismissed the Secretary of State’s appeal by a majority on 18 December 2009, with Walker J and Judge Ward in the majority and Judge Howell QC dissenting. Permission was granted for a further appeal.

It was common ground that the respondent had become involuntarily unemployed during the first twelve months and that the Jobcentre was the relevant employment office. The central issue was whether attending the Jobcentre, indicating on a form that she was seeking work and claiming Income Support amounted to registration as a job seeker under Article 7(3)(c), or whether registration required a claim for Job Seekers Allowance or national insurance credits accompanied by enhanced monitoring.

1. Disposition. The Court of Appeal unanimously dismissed the appeal. The respondent therefore remained entitled to Income Support.
2. Meaning of registration. Article 7(3)(c) contains two distinct requirements: duly recorded involuntary unemployment and registration as a job seeker with the relevant employment office. The first was accepted. On the ordinary meaning of register, the respondent’s attendance at the Jobcentre, genuine indication that she was seeking work and submission of the form satisfied the second. Registration did not inherently require a claim for Job Seekers Allowance, national insurance credits or the enhanced controls applicable to that benefit.
3. Permissible monitoring. A Member State may prescribe reasonable continuing requirements and control mechanisms to monitor whether an involuntarily unemployed person retains a genuine link with economic activity. The Court referred to Gray v Adjudication Officer [1992] ECR 1-2737 and Arbetsmarknadsstyrelsen v Petra Rydergard [2002] ECR 1-1817. Any such controls must be domestically prescribed as part of a lawful system. Regulation 1408/71 and its express control-procedure requirement did not compel an expansive construction of Article 7(3)(c), because it operated in a different context.
4. Domestic legislation and legal certainty. The Job Seekers Act 1995 prescribed rigorous controls for Job Seekers Allowance, but the Income Support (General) Regulations 1987 merely referred to Article 7(3) and did not establish comparable controls for Income Support. The Court noted the work-focused interview regime for lone parents and expressed doubt about CIS/3505/2007 UKUT 25 (AAC), but reached no concluded view because the supporting documentation was unavailable.
5. Legislative history and final reasoning. The earlier Directive 68/360/EEC dealt with confirmation of involuntary unemployment and did not justify importing a more demanding test. R v Immigration Appeal Tribunal ex parte Antonissen [1991] ECR I-745 concerned deportation rather than welfare-benefit eligibility. It could not support the Secretary of State’s proposed extension. Excluding the respondent through an unexpressed benefit-specific condition would conflict with EU-law legal certainty, requiring specificity, precision and clarity, as recognised in Commission v Italy [2001] ECR 1-40007. Moses LJ emphasised that the respondent had not been told how to enter a lawful monitoring system. Mrs Justice Baron agreed with both judgments. The formal order was: appeal dismissed.

• Upper Tribunal, Administration Appeals Chamber: On 18 December 2009, Walker J and Judge Ward dismissed the Secretary of State’s appeal by a majority; Judge Howell QC dissented. Permission was granted for a further appeal.
• Court of Appeal (Civil Division): The appeal was dismissed unanimously.