RP v Secretary of State for Work and Pensions (ESA)

For EU free-movement purposes, whether work is genuine and effective is assessed objectively and holistically. The scale, duration, hours and remuneration of the activity may show that it is merely marginal and ancillary. Work need not also be ancillary to another status or activity before it can fail that test.

The United Nations Convention on the Rights of Persons with Disabilities did not justify altering that established concept of worker under Article 45 TFEU. Where the compatibility of national worker-registration rules with EU free-movement law raises a difficult and outcome-determinative question which is not acte clair, a reference under Article 267 TFEU may be appropriate despite related domestic litigation being stayed.

The Polish claimant's claim for employment and support allowance was refused because he lacked a right to reside. The First-tier Tribunal dismissed his appeal. The Upper Tribunal accepted that the First-tier Tribunal had erred in law and remade the relevant findings.

After the claimant's registered employment ended because of a shoulder injury, he performed brief agency work for two employers. The issues included whether that work gave him worker status, whether the Worker Registration Scheme derogation lawfully prevented retention of worker status, and whether income-related ESA facilitated access to the labour market.

The central EU-law issue was whether regulation 5(3) of the Accession (Immigration and Worker Registration) Regulations 2004 was compatible with Article 7 of Regulation 1612/68 and Part 2 of Annex XII of the Treaty of Accession.

1. Interim disposition. The appeal was allowed to the extent that the First-tier Tribunal's decision was set aside for error of law. Consideration of the separate challenge to the extension of the Worker Registration Scheme remained stayed pending the Court of Appeal's decision in SSWP v Gubeladze. A reference to the Court of Justice was ordered under Article 267 TFEU.

2. The claimant's agency work was not genuine and effective. Applying Ninni-Orasche, the assessment turns on objective criteria and all the circumstances of the activity and employment relationship. The claimant worked for little more than five and a half hours for one employer and little more than 22 and a half hours for the other. The short duration, limited hours and very low earnings meant that the work, separately and together, was marginal.

3. Barry v LB Southwark did not require work to be both marginal and ancillary to another relationship before it could fail the test. It was distinguishable because the work there lasted longer, involved greater hours and attracted substantially higher remuneration. The claimant's work was not ancillary to another status, but that did not prevent it being marginal and on too small a scale to confer worker status.

4. The provisions of the United Nations Convention on the Rights of Persons with Disabilities did not permit a different construction of genuine and effective work. Assuming an interpretative obligation, its qualified nature and the aspirational character of the invoked Convention provisions meant that the established EU concept could not be relaxed by reference to the claimant's health condition.

5. The Tribunal was bound by Alhashem v SSWP, [2016] EWCA Civ 395, that ESA was not a benefit intended to facilitate access to the labour market. The claimant could therefore not succeed on that route.

6. The scope of the permitted derogation from Article 7 of Regulation 1612/68 was difficult and not acte clair. The Tribunal considered that the distinction between admission to, and access to, the labour market could be material, and that derogations from free-movement rights require restrictive interpretation. The answer was necessary to determine the appeal and justified a preliminary reference.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal to the extent of setting aside the First-tier Tribunal decision for error of law; stayed one issue and ordered a reference under Article 267 TFEU.
• First-tier Tribunal: dismissed the claimant's appeal against the refusal of ESA.