JS v Secretary of State for Work and Pensions

Article 7.3 of the Citizenship Directive exhaustively identifies the circumstances in which a Union citizen who stops working retains worker status. A person who ceases work for another reason, including pregnancy where there is no continuing employment contract, loses that status. Illness during pregnancy is distinct. The Directive codifies the Treaty concept of worker and cannot be judicially extended by adding pregnancy to the listed exceptions. A right-to-reside condition for social-security benefits may indirectly disadvantage nationals of other Member States, but that discrimination is justified where it pursues economic or social integration and protects the host state’s resources. The legal position was acte clair; no reference was made and the appeal was dismissed.

The appellant, a French citizen, worked in the United Kingdom and later undertook a teacher-training course. She stopped agency work while pregnant and claimed income support on 18 March 2008. The claim was refused because she lacked a right to reside and was therefore a person from abroad. Upper Tribunal Judge Ward rejected her challenge in [2010] UKUT 131 (AAC). The appeal concerned whether Article 7.3 of the Citizenship Directive preserved worker status during pregnancy, whether the resulting exclusion was discriminatory, and whether a reference to the Court of Justice was required.

Stanley Burnton LJ gave the leading judgment. Black LJ and Ward LJ agreed.

1. Worker status. The appeal was dismissed. Following and applying the ratio identified in Dias [2009] EWCA Civ 807 [2010] 1 CMLR 4, Article 7.3 of the Directive 2004/38/EC was a comprehensive codification of the circumstances in which a person who had ceased working retained worker status. It was implicit that cessation for a reason outside sub-paragraphs (a) to (d) ended that status. There was no true analogy with Lair v Universität Hannover [1988] ECR 3161.
2. Pregnancy. Pregnancy was not an illness, and the disability resulting from pregnancy was not an accident within Article 7.3(a). The appellant had no employment contract, was not on maternity leave and was not working. Treating pregnancy as an additional exception would amount to judicial legislation. Article 16’s express treatment of pregnancy and childbirth, and the rejection of a proposed amendment adding pregnancy to Article 7.3, supported that conclusion.
3. Treaty definition. The Directive incorporated the Treaty definition of worker described in Martinez Sala v Freistaat Bayern [1998] ECR I-2691, to the same effect as Leclere [2001] ECR I-4265. The Directive was consistent with, and did not narrow, Treaty rights. Since the appellant was not a worker at the relevant date, she was not entitled to the benefit of Article 7 of Regulation (EEC) No. 1612/68.
4. Discrimination. The complaint was, at most, one of indirect discrimination. Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11 [2011] 1 WLR 783 established that a right-to-reside condition for social-security benefits could be justified by the legitimate aim of ensuring economic or social integration, independently of nationality. The discrimination challenge also lacked appropriate evidence, including evidence addressing the position of men and women who stopped work to provide care.
5. Final orders. Abdirahman v Secretary of State for Work and Pensions [2007] EWCA Civ 657 [2008] 1 WLR 254 and Kaczmarek v Secretary of State for Work and Pensions [2008] EWCA Civ 1310 [2009] 2 CMLR 3 were binding decisions of this Court. The legal position was clear, so the request for a reference was refused.

1. Court of Appeal (Civil Division) dismissed the appeal and refused a reference to the Court of Justice: [2011] EWCA Civ 806.
2. Upper Tribunal (Administrative Appeal Chamber), before Upper Tribunal Judge Ward, rejected the claim that the appellant was entitled to income support: [2010] UKUT 131 (AAC).