JS v SSWP (IS)

A Union citizen cannot invoke proportionality as a free-standing route to a right of residence and social assistance where Directive 2004/38/EC addresses the relevant category but its qualifying conditions are not met. Proportionality may only have a role where EU residence law contains an accidental omission or lacuna.

A parent who leaves employment and the labour market to care for children does not retain worker status merely because the caring need is compelling. The exceptional retention of status recognised for pregnancy and the immediate aftermath of childbirth is confined to that special, time-limited situation. Where the Directive and related EU measures deliberately make defined provision for workers with children without covering the claimant's circumstances, there is no lacuna to fill.

The appellant, a Dutch national, claimed income support in March 2011 after resigning from employment to care for his young children while family proceedings and social-services involvement continued. One child had serious health problems. The First-tier Tribunal at Newcastle-upon-Tyne dismissed his appeal on 7 February 2012, finding that he was neither a worker nor a jobseeker when he claimed.

On appeal, earlier arguments concerning Carer’s Allowance, jobseeking and the termination of employment fell away. The remaining issues were whether he retained worker status by analogy with pregnancy-related temporary absence from work, and alternatively whether proportionality under EU law required recognition of a right of residence despite his inability to satisfy the usual conditions.

1. Appeal dismissed. The First-tier Tribunal made no material error of law. At the material date, the appellant had ceased employment and left the labour market. He was not then a worker in the ordinary EU-law sense.

2. Directive 2004/38/EC does not make proportionality a free-standing basis for a right of residence. The prior question is whether the Directive and relevant EU measures address the claimant’s category but impose conditions which he fails to meet, or whether they accidentally omit that category. Only the latter lacuna situation may permit a proportionality assessment to fill the gap.

3. Saint-Prix v SSWP did not assist. It established that the retained-worker circumstances in article 7(3) are not exhaustive for a woman temporarily leaving work because of the late stages of pregnancy and the aftermath of childbirth. That conclusion reflected the special and time-limited character of pregnancy and maternity. It did not create a general analogy for a parent who leaves work to care for children.

4. The appellant was not registered as belonging to the labour market and did not satisfy any condition in article 7(3). Whether social services had practically compelled him to stop work was therefore immaterial. The relevant distinction was that he had withdrawn from the labour market to undertake caring responsibilities.

5. There was no lacuna. Article 7 did not create a retained-worker category for parents leaving work to care for children. Other EU measures made defined provision for workers’ children, including primary carers of children in school, and the Directive addressed certain consequences of a spouse leaving. Those provisions did not cover the appellant, and their omission of his circumstances was deliberate rather than accidental.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and upheld the First-tier Tribunal’s decision: [2019] UKUT 135 (AAC).
• First-tier Tribunal, Newcastle-upon-Tyne: on 7 February 2012, dismissed the appellant’s appeal against refusal of income support, finding that he was neither a worker nor a jobseeker at the date of claim.