SSWP v KK (JSA)

An EU national’s entitlement to jobseeker’s allowance must be determined by the facts and law obtaining when the Secretary of State decides the claim. A claimant need not make a fresh claim merely because the relevant right to reside arises before that decision.

Following the invalid renewal of the Worker Registration Scheme from 1 May 2009, an A8 national was to be treated as any other EU national. A person who was seeking work and had a genuine chance of engagement could have a sufficient right to reside, even though a claim for jobseeker’s allowance was not itself essential to jobseeker status.

A Polish national claimed jobseeker’s allowance on 9 March 2009. The Secretary of State refused the claim on 2 May 2009 because he lacked a right to reside.

The First-tier Tribunal allowed the appeal on the basis that the claimant had completed 12 months of registered employment under the Worker Registration Scheme. The Secretary of State appealed. The proceedings were stayed pending Szpak v SSWP [2013] EWCA Civ 46 and then SSWP v Gubeladze [2019] UKSC 31. The issue was whether the claimant had a right to reside during the period relevant to the Secretary of State’s decision.

1. The Secretary of State’s appeal was allowed on a technical level only. The First-tier Tribunal had erred in treating Worker Registration Scheme certificates as retrospective to the commencement of employment. Its decision was set aside.

2. The renewal of the Worker Registration Scheme from 1 May 2009 was legally ineffective. The effect of SSWP v Gubeladze [2019] UKSC 31 was that, from 1 May 2009 to 30 April 2011, an A8 national was not subject to the Scheme’s additional conditions and stood in the same position as another EU national.

3. Under Social Security Act 1998, section 8(2), a benefit claim is determined by circumstances obtaining up to the Secretary of State’s decision. The claimant therefore did not need to make a new claim on 1 May 2009. If, by the decision date, he was in fact and law a jobseeker, he could succeed even if he had not previously been one.

4. For the purposes of regulation 6(4) of the Immigration (European Economic Area) Regulations 2006, a jobseeker had to be seeking employment and have a genuine chance of engagement. A claim for jobseeker’s allowance was not an essential condition. On the evidence and the Department’s practice at the time, the claimant satisfied that status from 1 May 2009. He had a right to reside from that date, but not before.

5. The decision was remade accordingly. The Secretary of State was to determine the remaining conditions of the claim, subject to fresh appeal rights if disputed.

• Upper Tribunal (Administrative Appeals Chamber): The Secretary of State’s appeal was allowed on a technical level only. The First-tier Tribunal’s decision was set aside and remade: the claimant had a right to reside from 1 May 2009, but not before.
• First-tier Tribunal: On 4 March 2010, the tribunal allowed the claimant’s appeal, finding that he had completed the required period of registered employment under the Worker Registration Scheme.