[2007] UKSSCSC CIS_408_2006 (31 October 2007)

CIS/408/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	The Secretary of State’s appeal against the decision of the Birmingham appeal tribunal dated 25 October 2005 is unsuccessful.  I set aside that decision of the tribunal but I substitute a decision to the same practical effect.  The claimant had a right to reside in the United Kingdom for the purposes of his claim to income support made on 12 January 2005.  I leave other questions arising in respect of that claim to be determined by the Secretary of State.

REASONS

2.	I held an oral hearing of this appeal at which the Secretary of State was represented by Mr Jason Coppel of counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions and the claimant was represented by Ms Faith Ryan, solicitor, of Birmingham Money Advice & Grants.  I am very grateful to both Mr Coppel and Ms Ryan for their helpful submissions.

The facts

3.	Most of the facts of this case are not in dispute.  The claimant is a national of Cameroon.  He came to the United Kingdom on 7 January 2003 as an asylum seeker.  Subsequently, he married a French national who had come to the United Kingdom in August 2003 and was working in the United Kingdom and therefore had a right to reside in the United Kingdom.  One result of his marriage was that he too acquired a right of residence, as a member of her family.  He obtained employment and, in early 2004, the Home Office ceased action on his claim for asylum.  That no doubt made pragmatic sense at the time but the consequence was that he lost the opportunity to have a right of residence conferred on him in his own right.  Neither the claimant nor his wife were in well paid employment.  They were both agency workers.  Latterly he worked in a warehouse and she worked part-time at a branch of Sainsbury’s.  Sadly, the claimant was diagnosed as suffering from bowel cancer in November 2004 and had to give up work.  His wife also gave up work in November or December 2004 for the purpose of looking after him.  
 
4.	On 12 January 2005, the claimant claimed income support for himself and his wife.  He was then admitted to hospital, underwent an operation on 18 January 2005 for a major bowel resection and remained in hospital for fifteen days.  After his discharge, he required chemotherapy.  His claim for income support was rejected on 7 April 2005 on the ground that he had no right to reside in the United Kingdom and therefore could not be treated as habitually resident in Great Britain.  This was on the footing that he retained his right of residence only for as long as his wife continued to retain hers by virtue of being a “worker” and that she had lost that status when she gave up work to look after him.  He appealed and the Birmingham appeal tribunal allowed his appeal on the ground that his wife had not lost her status of “worker” because she was involuntarily unemployed while looking after him.  The Secretary of State now appeals against the tribunal’s decision with the leave of Mr Commissioner Angus.

5.	I am told that while the appeal before the tribunal was pending, the claimant returned to work.  He and his wife both told their employment agency that they were available for work in mid-May and work was found for them both by the end of the month.  The claimant became ill again in 2006 and required further surgery.  He made a new claim for income support and this time he has been awarded income support, although he is now separated from his wife.  I am told that he is also in receipt of disability living allowance under “the special rules” and has asked the Home Office to reactivate consideration of his application for asylum or to grant him leave to remain in the United Kingdom on humanitarian grounds.

6.	The one fact that is in dispute is whether the claimant’s wife could have remained available for work for 16 hours a week while looking after him.  I sought further written evidence and submissions on this point following the oral hearing, at which neither the claimant nor his wife was present.  The evidence is not conclusive; such evidence seldom is.  I accept the Secretary of State’s observation that most of the claimant’s need for attention and supervision appears to have arisen out of his psychological needs rather than physical needs, but I am not persuaded that that matters.  I accept that the claimant went to pieces when he was first told that cancer had been diagnosed and, on balance, I accept that when the claim for income support was made it was not reasonable to expect his wife to be available for work at all.  It seems to me material that, at the time, she appears to have considered it necessary to cease work and she had already been working for only 20 hours a week.  Nor does it seem to me to be reasonable to have expected her to make herself available for work during the fifteen days when the claimant was in hospital, given that it was likely he would need care when he was discharged and the length of his stay may in any event have been uncertain.  When he was discharged, he was still suffering the after-effects of the operation and required help with getting in and out of bed, dressing, getting about including to and from the toilet and being turned in bed and he still needed psychological support.  It may also be material in this context, although it would not be on a claim for disability living allowance, that he needed someone to cook for him.  The weekly chemotherapy also made it difficult for him to do things for himself, particularly at the beginning of each week.  I have little doubt that when the claimant first came out of hospital, his wife could not reasonably have been expected to be available for work for 16 hours a week.  I suspect that, as the claimant recovered from the operation, the course of chemotherapy progressed and the claimant came to terms with his condition, there came a time when, although he was still incapable of work, his wife could have started looking for work, at least part-time.  However, on balance, I do not consider that that time had arrived before the Secretary of State made his decision on 7 April 2005.

The statutory framework

7.	It is common ground that the issue in the present case is whether or not the tribunal erred in finding that the claimant had a right to reside in the United Kingdom.  Regulation 21(3G) of the Income Support (General) Regulations 1987 (S.I. 1987/1967 as amended and as then in force) had the effect that a person with no right of residence in the United Kingdom could not be treated as habitually resident in the United Kingdom and therefore such a person was a “person from abroad” with an “applicable amount” of “nil” by virtue of regulation 21 of, and Schedule 7 to, those Regulations.  The effect of a person having an “applicable amount” of nil is that, by virtue of section 124(1)(b) and (4)(b) of the Social Security Contributions and Benefits Act 1992, he is not entitled to any payments of income support.

8.	Regulation 14 of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326, now replaced by the Immigration (European Economic Area) Regulations 2006 (S.I. 2006/1003)), provided that a “qualified person” within the scope of regulation 5 had a right to reside in the United Kingdom for as long as he remained a qualified person.  Similarly, it provided that a “family member” of such a person was entitled to reside in the United Kingdom for as long as he remained a family member of a qualified person.  By regulation 4, “family member” included a spouse.  Regulation 5(1)(a) provided that a “qualified person” included “a person who is an EEA national and is in the United Kingdom as … a worker” and regulation 3 provided that a “worker” was “a worker within the meaning of Article 39 of the EC Treaty”.  Regulation 5(2) provided –

“(2)	A worker does not cease to be a qualified person solely because –
    (a)	he is temporarily incapable of work as a result of illness or accident; or
    (b)	he is involuntarily unemployed, if that fact is duly recorded by the relevant employment office.”

9.	It is therefore common ground that, not being an EEA national and not having been granted leave to remain under the Immigration Act 1971, the claimant had a right of residence under the 2000 Regulations only if his wife was a “qualified person” during the period of his claim for income support from 12 January 2005, in which case his right of residence would arise as her spouse.  (Any right of residence he may have had as a person who had claimed asylum may be ignored because an asylum-seeker is generally not entitled to income support by virtue of section 115(1)(e) of the Immigration and Asylum Act 1999.) 

Was the claimant’s wife a “qualified person” ?

10.	It is convenient first to look at regulation 5(2).

11.	In CIS/3182/2005, I held that regulation 5(2)(a) of the 2000 Regulations could not assist a single parent who was not working while caring for a sick child, because it contemplated the person who claimed to be a worker being ill rather than someone else being ill.  That reasoning leads to the conclusion in the present case that the claimant’s wife did not remain a qualified person by virtue of regulation 5(2)(a) while she was looking after the claimant.  Mr Coppel relied on that reasoning and I adhere to it.

12.	In respect of regulation 5(2)(b), upon which the tribunal relied, Mr Coppel relied on my decision in CH/3314/2005, where I said –

“10.	It is plain from the recital to the 2000 Regulations that they were made to implement the law of the European Communities.  The term ‘worker’ must therefore be understood in the context of the law of the European Communities.  So must the term ‘involuntarily unemployed’ in regulation 5(2) of the 2000 Regulations, which is clearly derived from Article 7(1) of Council Directive 68/360/EEC, which in turn is a measure consequential upon Regulation (EEC) No. 1612/68.  In R(IS) 12/98, Mr Commissioner Mesher said –

‘… a person who has left employment but remains in the labour market must retain the status of worker for the purpose of Regulation 1612/68.  In that context, it does not matter in itself whether the previous employment was left voluntarily or involuntarily.  The question is whether the circumstances of the leaving, and in particular the person’s intentions and actions at the time, indicate that the person was still in the labour market or not.’

“11.	Thus, it seems to me, the term ‘involuntarily unemployed’ must be regarded as focussing on the question whether the claimant is still in the labour market rather than on the circumstances in which he or she ceased to be employed, although the latter may be material as evidence as to whether or not the claimant is genuinely still in the labour market.  It was therefore unnecessary for Mr Venables to argue, as he did, that the claimant was forced by her circumstances to give up her employment and so did not give it up voluntarily.  Indeed, such an argument would not avail a claimant who was forced to give up employment due to childcare responsibilities and then remained unavailable for work due to those responsibilities.  I accept the Secretary of State’s submission that such a claimant would lose the status of ‘worker’.  …”

I accept Mr Coppel’s submission that, in the present case, the claimant’s wife had withdrawn from the labour market and thus was not involuntarily unemployed and therefore did not fall within the scope of regulation 5(2)(b).

13.	It follows that the tribunal’s decision is erroneous in point of law.  However, there remains the question whether it nonetheless reached the right conclusion in finding the claimant’s wife, and therefore the claimant, to have a right of residence.

14.	As she did not fall within the scope of either subparagraph of regulation 5(2), the next question is whether the claimant’s wife remained, on other grounds, a “qualified person” while caring for her husband.  It seems to me that a person does not cease to be present in the United Kingdom “as … a worker” while on leave from employment or temporarily incapable of work or laid off during the subsistence of the contract of employment, with the result that a claimant need rely on regulation 5(2) only if the contract of employment has come to an end.  Thus, in the present case, if the claimant’s wife had been granted leave of absence from employment in order to care for him, she would have retained her status as a “worker” by virtue of her continuing employment relationship and they would both have retained their right of residence.  However, her employment had been terminated and a P45 issued.  It is therefore necessary to consider whether a person who does not fall within the scope of regulation 5(2) may be a “worker” in the absence of a continuing employment relationship. 

15.	When I directed that there be an oral hearing in this case, I raised the question whether finding that a person who had left employment to care for a spouse had no right of residence would tend to restrict in a practical sense a person’s freedom to move to any Member State to work so that it might be necessary to regard such a person as still being a worker in order to avoid restricting that freedom.  Although regulation 5(2) does not purport to confer on those within its scope the status of “worker”, the language of Article 7(1) of Directive 68/360/EEC suggests that such a person remained a “worker” under European Community law for the purposes of that article.  It provided –

“A valid residence permit may not be withdrawn from a worker solely on the grounds that he is no longer in employment, either because he is temporarily incapable of work as a result of illness or accident, or because he is involuntarily unemployed, this being duly confirmed by the competent employment office.”

Ms Ryan submitted that the continuation of the employment relationship was not essential to the retention of the status of a “worker”.  She relied on Lair v. Universität Hannover (Case 39/86) [1988] E.C.R. 3161 and Raulin v. Minister van Onderwijs en Wetenschappen (Case C-357/89) [1992] E.C.R. I-1027, which were both concerned with the position of students.  I am not persuaded that either of those decisions lends support to the claimant’s case. 

16.	In Lair, it was accepted that “there is … a basis in Community law for the view that the rights guaranteed to migrant workers do not necessarily depend on the actual or continuing existence of an employment relationship”.  However, the European Court of Justice then identified certain specific instances where that was the case, including Directive 68/360/EEC which the Court noted “prohibits Member States in certain circumstances from withdrawing a residence permit from a worker solely on the ground that he is no longer in employment” (my emphasis), and concluded –

“36.	It is therefore clear that migrant workers are guaranteed certain rights linked to the status of worker even when they are no longer in an employment relationship.

“37.	In the field of grants for university education, such a link between the status of worker and a grant awarded for maintenance and training with a view to the pursuit of university studies does, however, presuppose some continuity between the previous occupational activity and the course of study; there must be a relationship between the purpose of the studies and the previous occupational activity.  Such continuity may not, however, be required where a migrant has involuntarily become unemployed and is obliged by conditions on the job market to undertake occupational retraining in another field of activity.” (My emphasis in both paragraphs)

17.	In Raulin, the plaintiff student had a subsisting “on-call contract” as a waitress which the Court held to be a sufficient employment relationship subject to the question whether the plaintiff’s working under the contract was effective and genuine, which it held was a matter for the national court as was the question whether the course the student was doing bore a sufficient relationship with activities previously exercised in the host state to satisfy the test laid down in Lair.  Insofar as the position of the involuntarily unemployed was concerned, the Court merely repeated the test in Lair.  The Court also held that the right to be admitted to a course of vocational training implied a right of residence for that purpose, although that right could be limited to the duration of the studies and made subject to certain conditions.

18.	Those decisions do not support the claimant.  They emphasised the importance of the continuing employment relationship.  It is true that they contemplated a person who is “involuntarily unemployed” also having rights but it is clear that that term was used in Lair in respect of people seeking work in the job market, just as it is in regulation 5(2)(b) of the 2000 Regulations.  It is also true that the decisions envisaged certain circumstances where a person might have rights as a worker notwithstanding the termination of the employment relationship, but such circumstances had to be found in the terms of directives.  The truth is that the term “worker” is not used consistently in either the legislation or the case-law.  In Martinez-Sala v. Freistaat Bayern (Case C-85/96) [1998] E.C.R. I-2691, it was said –

“31. 	It must also be pointed out that there is no single definition of worker in Community law: it varies according to the area in which the definition is to be applied. For instance, the definition of worker used in the context of Article 48 of the EC Treaty and Regulation No 1612/68 does not necessarily coincide with the definition applied in relation to Article 51 of the EC Treaty and Regulation No 1408/71.

The status of worker within the meaning of Article 48 of the Treaty and Regulation No 1612/68 

32.	 In the context of Article 48 of the Treaty and Regulation No 1612/68, a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration must be considered to be a worker. Once the employment relationship has ended, the person concerned as a rule loses his status of worker, although that status may produce certain effects after the relationship has ended, and a person who is genuinely seeking work must also be classified as a worker (see, in that connection, Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraph 17, Case 39/86 Lair [1988] ECR 3161, paragraphs 31 to 36, and Case C-292/89 Antonissen [1991] ECR I-745, paragraphs 12 and 13).”

19.	When I directed the hearing in this case, I also drew attention to regulation 5(7)(a) of the 2006 Regulations which, with effect from 30 April 2006, provides specifically that “periods of inactivity for reasons not of a person’s own making … shall be treated as periods of activity as a worker or self-employed person, as the case may be”.  That, of course, is not of direct relevance to the present case which arose long before 30 April 2006, but I asked whether that was nonetheless an indication that the claimant’s wife should have been treated as a worker for the purposes of the 2000 Regulations at the time of the claimant’s claim for income support.

20.	The 2006 Regulations were made in order to give effect to Council Directive 2004/38/EC of 29 April 2004, which, by Article 40, required Member States to bring into force provisions necessary to comply with the directive by 30 April 2006.  It is well established that a directive has some effect during the period between its adoption and the transposition of its terms into the law of a Member State.  In Inter-Environnement Wallonie ASBL v. Région wallone (Case C-129/96) [1997] E.C.R. I-7411 it was held that Member States must refrain from adopting measures liable seriously to compromise the result prescribed by a directive.  More recently, there has been the case of Mangold v. Helm (Case 144/04) [2005] E.C.R. I-9981, to which Mr Coppel helpfully referred me, where the Court appears to have taken matters further insofar as general principles of Community law are concerned by saying that “observance of the general principle of equal treatment …  cannot as such be conditional upon the expiry of the period allowed the Member States for the transposition of a directive intended to lay down a general framework for combating discrimination …”.  However, it is not necessary for me to explore the limits, if any, to that approach because Mr Coppel has persuaded me that the claimant’s wife would not be assisted by the directive even it had been transposed into national law.

21.	The provisions of the 2006 Regulations closely follow those of Directive 2004/38/EC.  In particular, they make provision for a right of admission to the United Kingdom, for an “initial right of residence”, an “extended right of residence” and a “permanent right of residence” in respect of people who are workers, self-employed persons, self-sufficient persons or students and their family members.  By regulation 15(1)(c), a “worker or self-employed person who has ceased activity” acquires a permanent right of residence.  Regulation 5 defines the term “worker or self-employed person who has ceased activity” in terms of the satisfaction of various conditions which, in some instances, include a condition of having been active as a worker or self-employed person in the United Kingdom for a specified period.  Regulation 5(7)(a) is concerned only with the calculation of those periods of past activity.  The wording is plainly derived from the concluding words of Article 17(1) of Directive 2004/38/EC, which makes provision for certain people to acquire a right of permanent residence on the basis of periods of residence for less than five years and ends –

“Periods of involuntary unemployment duly recorded by the relevant employment office, periods not worked for reasons not of the person’s own making and absences from work or cessation of work due to illness or accident shall be regarded as periods of employment.”

I therefore accept Mr Coppel’s submission that, even if regulation 5(7)(a) of the 2006 Regulations and the 2004 directive had been in effect, the claimant’s wife would not have had a right of residence on the ground that she remained a worker or was to be treated as a worker.

22.	For all these reasons, I am satisfied that the claimant’s wife was not a “qualified person” within the scope of the 2000 Regulations at the time of the claimant’s claim for income support and so neither she nor he had a right of residence in the United Kingdom by virtue of those Regulations.  Moreover, those Regulations appear fully to have transposed all Community directives relating to the freedom of movement in force before Directive 2004/38/EC into the domestic law of the United Kingdom.

Article 18(1) of the EC Treaty

23.	Article 17 of the Treaty establishing the European Community establishes citizenship of the European Union.  Article 18(1) provides –

“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.”

24.	In Baumbast v. Secretary of State for the Home Department (Case C-413/99) [2002] E.C.R. I-7091, the European Court of Justice ruled that –

“A citizen of the European Union who no longer enjoys a right of residence as a migrant worker in the host Member State can, as a citizen of the Union, enjoy there a right of residence by direct application of Article 18(1) EC.  The exercise of that right is subject to the limitations and conditions referred to in that provision, but the competent authorities and, where necessary, the national courts must ensure that those limitations and conditions are applied in compliance with the general principles of Community law and, in particular, the principle of proportionality.”

25.	The Court thereby rejected the arguments of several parties, including the United Kingdom Government and the European Commission, to the effect that Article 18 was not a free-standing provision and that the right to move and reside established by that Article was “conditioned by pre-existing rules, both primary and secondary, which define the categories of persons eligible for it”.  However, Mr Advocate General Geelhoed had pointed out that –

“120.	The reason why Mr Baumbast cannot derive any rights from article 39 EC and Regulation No 1612/68 has to do with the fact that the rules of freedom of movement for persons have not kept up with the pace of developments.  Those rules came into force at the end of the 1960s and have since then not been brought up to date to reflect changes in society.  …

“121.	This is a case which was not provided for by the Community legislature.  There is no regulatory framework within which the right to remain may be exercised.  …”

26.	Thus Article 18(1) can confer a right of residence in addition to those conferred by directives made for the purpose of giving effect to rights arising in respect of freedom of movement.  In Regina (Bidar) v. Ealing L.B.C. (Case C-209/03) [2005] Q.B. 812, the European Court expressly contrasted the narrow approach taken in Lair with the broader approach permissible under Article 18(1).

27.	However, once a person has a right of residence in a Member State (whether by virtue of Community rights or under national law), he or she must be treated no less favourably than citizens of that Member State (see Article 12 of the Treaty, Grzelczyk v. Centre public d’aide sociale d’Ottignes-Louvain-la-Neuve (Case C-184/99) [2001] E.C.R. I-6193 and Trojani v. Centre public d’aide sociale de Bruxelles (Case C-456/02) [2004] E.C.R. I-7573).  Thus rights of residence confer all sorts of social advantages, including the right to claim social assistance.  It is therefore to be expected that directives will be carefully drawn so as to ensure that rights of residence are extended only to those to whom it is expected that host states should extend those social advantages.  Where it is clear that the extent of a right of residence has deliberately been drawn with a view to ensuring that a class of persons does not have a right of residence, it seems to me that a national court is not entitled to undermine the directive by finding that that class of person has a right of residence by virtue of Article 18(1), because Article 18(1) is made subject to directives by the very terms of the Treaty and such a finding would amount to a finding that the directive was ultra vires.  Only the European Court of Justice is entitled to find a directive to be ultra vires and inconsistent with the Treaty. 

28.	On the other hand, it follows from Baumbast that a national court must apply Article 18(1) to fill an accidental lacuna left by directives in circumstances where it is plainly appropriate for a person to have a right of residence by virtue of being a citizen of the Union.  This may arise either because, as in Baumbast itself, directives have not been updated so as to keep pace with other developments in the law or society or it may be because it is apparent that a point has simply been overlooked. 

29.	In Baumbast, emphasis was placed on the principle of proportionality.  The reason that this is an issue appears from paragraph 90 of the Court’s judgment –

“90.	In any event, the limitations and conditions which are referred to in article 18 EC and laid down by Directive 90/364 are based on the idea that the exercise of the right of residence of citizens of the Union can be subordinated to the legitimate interests of the member states.  In that regard, according to the fourth recital in the preamble to Directive 90/364, beneficiaries of the right of residence must not become an ‘unreasonable’ burden on the public finances of the host member state.”

30.	In Grzelczyk, the Court made the point at paragraph 44 of the judgment that a reference to an “unreasonable” burden on the finances of a host Member State implied “a certain degree of financial solidarity between nationals of a host member state and nationals of other member states, particularly if the difficulties which a beneficiary of the right of residence encounters are temporary”.

31.	Grzelczyk, Baumbast and Bidar all turned on their facts and the terms of the directives that failed to provide adequate rights in each of the cases.  However, in all three cases the Court was primarily concerned that a person who had started education in a Member State should be enabled to complete it, even if the relevant directives did not make the necessary provision.  In both Baumbast and Bidar, complications were introduced because children had entered the United Kingdom in unusual family circumstances.

32.	Baumbast is the only case to which I have been referred in which the Court has actually found on the facts that a person does have a right of residence under Article 18(1) when such a right is neither conferred by a directive nor recognised by the Member State.  The Court was faced with the situation that a German national, Mr Baumbast, had brought his wife, step-daughter and daughter to the United Kingdom when working here.  His wife and step-daughter were not Union nationals.  Mr Baumbast then ceased to work in the United Kingdom but worked for a German company in countries outside the Union and his wife and children remained in the United Kingdom.  The Court agreed with the immigration adjudicator that the children had a right of residence under Regulation (EEC) No. 1612/68 for the purpose of continuing their education and that their mother had a concurrent right of residence as their primary carer in order to give practical effect to that right.  The Court, however, went further and found Mr Baumbast also to have a right of residence under Article 18(1) of the Treaty, having regard to the fact that he was self-sufficient, that he had worked and lawfully resided in the United Kingdom in the past, that his family had resided with him in the United Kingdom and had continued to live here, that neither he nor his family had became burdens on the public finances of the United Kingdom and that they had comprehensive sickness insurance in Germany (although it appeared that it would not cover emergency treatment in the United Kingdom, which is why the Court relied on Article 18(1) rather than Directive 90/364/EEC).

33.	One major distinction between the situation in Baumbast and the situation in the present case is the fact that Directive 2004/38/EC had been adopted by the time the claimant made his claim for income support in this case.  This is important because, in Baumbast, the Advocate General placed much emphasis on the failure of previous directives to keep pace with developments and the consequent need to rely on Article 18(1) of the Treaty to make good the deficiency.  Directive 2004/38/EC substantially brought up-to-date the Community provision in respect of rights of residence and, even though the time for transposing it into national laws had not elapsed at the time when the present case arose, it cannot, for reasons I have already given, be ignored.  The approach I have taken in CIS/2358/2006 is that the new directive sets a standard by reference to which proportionality must be judged for the purpose of Article 18(1) in a case arising before the directive came into force.  In other words, a claimant who did not have a right of residence under earlier directives but who would have had a right of residence under the new directive had it been transposed into national law, may have a good case for having a right of residence recognised under Article 18(1) of the Treaty.  Equally, of course, where a claimant would not have had a right of residence even if the directive had been transposed into national law, the Secretary of State has a prima facie case that the claimant should not now be found to have a right of residence under Article 18(1), in view of both the fact that the directive represents a modern approach to rights of residence and because the preamble expressly states that it was drafted having regard to Article 18 of the Treaty.  That is particularly so where it is plain that the implication of the directive not conferring a right of residence is that it was deliberately intended that there should be no right of residence under Community law.  However, even up-to-date legislation may be incomplete it must logically follow from Baumbast that, where it is not clear that the situation of the claimant was envisaged by the Council when adopting a directive, the claimant may be found to have a right of residence under Article 18(1) of the Treaty if to do so would be consistent with the general thrust of the directive and the denial of the right would be disproportionate.  The coming into force of Directive 2004/38/EC considerably reduces the opportunities for claimants to rely on Article 18(1) in a case not covered by the directive – at least in the medium term while the directive represents up-to-date policy – but it does not eliminate the possibility of doing so in an exceptional case. 

34.	Another major distinction between Baumbast and the present case is that the claimant in the present case has claimed income support and shown that he and his wife did not have the resources necessary to qualify for a right of residence as self-sufficient persons.  However, there is nothing in Baumbast to suggest that, in principle, that distinction is determinative.  It is true that the Court focussed primarily on the lack of medical insurance as being the only bar to Mr Baumbast being treated as self-sufficient (see paragraph 93 of the judgment), but the Advocate General focussed on the fact that Mr Baumbast was not working in the host Member State as being the only bar to him not being treated as a worker and his approach was to “apply by analogy the regulatory framework applicable to economically active persons” (see paragraph 121 of his opinion).  The Court did not ignore that point.  The fact that the claimant and his family had adequate resources and had not become burdens of the member State’s finances were material considerations for the Court but so were the fact that he was working for a company in another member State and had, in the past, worked in the host Member State (see paragraph 92 of the judgment).

35.	Other decisions are at least not inconsistent with the view that a lack of financial resources does not necessarily preclude a claimant having a right of residence under Article 18(1).  Notwithstanding the reliance that was placed in Grzelczyk on the fact that Directive 93/96/EEC on the right of residence for students required only that the student make a declaration at the beginning of the course that he was self-sufficient and did not expressly require him to remain self-sufficient throughout the course, it seems to me plainly to emerge from that case that a need to claim social assistance is merely a matter – albeit a particularly important one – to be weighed in the balance when considering whether the burden on public finances would be “unreasonable”.  In Trojani, the Court emphasised that Baumbast had involved a case where there had been no expectation that there would be a claim for social assistance and it took into account that such a claim was in issue when finding there to be no right of residence under Article 18(1) in the case before it (although a right of residence had been recognised by the municipal authorities so the claimant did not actually need to rely on Article 18(1)).  However, it does not follow that a right of residence can never be found to exist solely by virtue of Article 18(1) merely because it will give rise to a claim for social assistance.  That seems clear from the judgment of the Court, in which it was said –

“35.	It follows from the judgment making the reference that a lack of resources was precisely the reason why Mr Trojani sought to receive a benefit such as the minimex.

36.	In those circumstances, a citizen of the union in a situation such as that of the claimant in the main proceedings does not derive from Article 18 EC the right to reside in the territory of a Member Sate of which he is not a national, for want of sufficient resources within the meaning of Directive 90/364.  Contrary to the circumstances of the case of Baumbast and R (paragraph 92), there is no indication that, in a situation such as that at issue in the main proceedings, the failure to recognise that right would go beyond what is necessary to achieve the objective pursued by that directive.”

The implication is that, if the claimant’s situation had been different, there might have been an indication that the failure to recognise the right of residence would go beyond what was necessary to achieve the objective pursued by the directive, notwithstanding the lack of resources which meant that he had no right under the directive itself. 

36.	It will no doubt be rare for a person to be found to have a right of residence under Article 18(1) when he or she has no right of residence under a directive or other subordinate legislation and is not self-sufficient, because one purpose of restricting rights of residence is to avoid people becoming unreasonable burdens on the social assistance schemes of Member States of which they are not citizens and it will often be appropriate to infer a deliberate intention to exclude those likely to apply for social assistance from the scope of the directive or other legislation.  However, in principle, self-sufficiency cannot be determinative in every case.  If as I consider to be the case, Baumbast is authority for the proposition that Article 18(1) of the Treaty may be relied upon where there is a lacuna in a directive, regard must be had to the fact that directives have required Member States to recognise, in many circumstances, rights of residence of people who are neither currently employed nor self-sufficient.  

37.	I am therefore satisfied that a person may be found to have a right of residence by virtue of Article 18(1) of the EC Treaty where the principle of proportionality requires that a lacuna in directives must be filled, that proportionality must be judged by reference to, inter alia, Directive 2004/38/EC in any case arising after the adoption of that directive and that there may, in principle, be circumstances in which the principle of proportionality requires that a right of residence be recognised even though the claimant is not self-sufficient.  

Does Article 18(1) of the Treaty confer a right of residence in the present case ?

38.	I have already concluded that the claimant and his wife would not have had a right of residence under Directive 2004/38/EC even if it had been in force when he made his claim for income support and so, for the reasons I have given above, the questions arise whether there is a lacuna in that directive, whether recognising a right of residence under Article 18(1) of the Treaty would be inconsistent with the directive and whether the principle of proportionality requires a right of residence to be recognised.  This requires a fairly detailed consideration of the directive and of its practical effects in the context of the national scheme of benefits entitlement.

39.	Article 7(1), (2) and (3) of Directive 2004/38/EC provides –

“1.	All Union citizens shall have the right of residence on the territory of another Member State for a period longer than three months if they:
    (a)	are workers or self-employed persons in the host Member State; or
    (b)	have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host member State; or 
    (c)	are [students]; or
    (d)	are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

“2.	The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).

“3.	For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain his status of worker or self-employed person in the following circumstances:
    (a)	he/she is temporarily unable to work as the result of an illness or accident;
    (b)	he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;
    (c)	he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office.  In this case, the status of worker shall be retained for no less than six months;
    (d)	he/she embarks on vocational training.  Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.”

40.	Article 8(4) provides –

“4.	Member States may not lay down a fixed amount which they regard as ‘sufficient resources’ but they must take into account the personal situation of the person concerned.  In all cases this amount shall not be higher than the threshold below which nationals of the host Member State become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host Member State.”

41.	Article 12(2) makes provision for a person who is not a Union citizen but was a member of a Union citizen’s family to retain a right of residence after the Union citizen’s death, provided that he or she has been resident as a family member for at least a year and subject to certain conditions before permanent residence is acquired.  Article 13(2) makes similar, but different, provision where a marriage or registered partnership between a Union citizen and a person who is not a Union citizen is terminated.  In neither case is self-sufficiency a condition of residence if the person concerned is a worker or a self-employed person.

42.	By virtue of Article 14(2), rights of residence under Articles 7, 12 or 13 are retained only for as long as the conditions set out in those articles are met but in due course an unconditional right of permanent residence may be obtained under articles 16, 17 and 18.  The general rule under articles 16 and 18 is that a person obtains a right of permanent residence after five years but article 17 provides for shorter qualifying periods in certain circumstances, including permanent incapacity for work in the case of a worker or self-employed person where the qualifying period is two years.

43.	Article 23 (which in effect re-enacts Article 2(2) of Directive 90/364/EEC) provides –

“Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there.”

44.	It is clear that a family member’s right of residence under the new directive still depends on the person they are accompanying being economically active, self-sufficient or a student, save when involuntarily unemployed or sick or when a right of permanent residence has been obtained.

45.	Mr Coppell argued was that the claimant’s wife could have remained in the job market while caring for her husband.  If she was unable to continue in the employment she had when he fell ill, she could have registered as involuntarily unemployed and claimed jobseeker’s allowance on the basis that her availability for work was restricted (see regulation 13(4) of the Jobseeker’s Allowance Regulations 1996 (S.I. 1996/207)).  Indeed, because there was no requirement to register involuntary unemployment by means of a claim for jobseeker’s allowance, making a claim for jobseeker’s allowance would not actually have been necessary.  Provided she had actually made herself available for work, she and her husband would have had rights of residence and he would have been entitled to make a claim for income support on the ground of his incapacity.  (I note, however, that on 14 June 2005, the claimant’s adviser was told that the claimant’s wife would not be entitled to income support and would be entitled to jobseeker’s allowance only after being resident for two years in the United Kingdom.)

46.	Mr Coppell’s argument would be all very well in a case where the disabled person’s needs for care were not too great.  However, regulation 13(4) of the 1996 Regulations provides that a person may restrict his or her availability for employment to less than 40 hours a week due to caring responsibilities only if –

  “(a)	in that week he is available for employment for as many hours as his caring responsibilities allow and for the specific hours that those responsibilities allow and
    (b)	he has reasonable prospects of securing employment notwithstanding that restriction and
    (c)	he is available for employment of at least 16 hours in that week.”

The context in which those restrictions exist is that a British national or any other person with a right of residence in the United Kingdom is not expected to be available for work if he or she is “looking after a member of his family who is temporarily ill” or is “regularly or substantially engaged in caring for another person [if, broadly, the person being cared for has claimed or is entitled to attendance allowance or disability living allowance].  In such cases, the carer is entitled to income support (see paragraphs 3(b) and 4 respectively of Schedule 1B to the Income Support (General) Regulations 1987 (S.I. 1987/1967)).  Attendance allowance and disability living allowance are payable only in respect of long-term, or terminal, disablement and, where the claim for income support is based on the disabled person’s entitlement to disability living allowance, entitlement must be to the care component at at least the middle rate.  Where there is a need to care for someone temporarily, the much less stringent test in paragraph 3(b) is applied and there will clearly be cases where a person could make themselves available for work but may choose not to do so (as is the case with, for instance, single parents).  Where that element of choice exists, I am quite content to accept that a right to residence as a worker necessary to entitle a citizen of the European Union to benefit may be made conditional upon him or her being available for work, as Mr Coppel submits.  However, in this case, the claimant’s wife was not available for work and I have found that she could not have satisfied the conditions of regulation 13(4) of the 1996 Regulations.  (It may be that, for Community law purposes, the issue is not whether a claimant is available for employment of at least 16 hours a week but whether he or she is available for employment that would be genuine and effective, but one can take as a working assumption that the two tests amount to much the same thing and so avoid the detailed analysis I undertook in CH/3314/2005.)

47.	I am also content to accept for the purposes of this case that, where disablement and the need for care are permanent, it would be inconsistent with the 2004 directive for a person to be found under Article 18(1) to have a right of residence when not working due to caring responsibilities, if he or she did not satisfy the same two-year qualifying condition required by Article 17(1)(b) of the directive of people who have become permanently incapable of work.  The claimant’s wife did not satisfy that condition at the material time, but the claimant’s need for care was not permanent, as shown by the fact that he subsequently returned to work.

48.	The directive treats temporary incapacity differently.  There is no residence condition.  Article 7(3)(a), which with Article 7(3)(b) effectively reproduces article 7(1) of Directive 68/360/EEC, applies.  Presumably the directive is based on the idea that the freedom of movement of workers would be unreasonably restricted if workers were not certain of being protected against the consequence of both involuntary unemployment and temporary incapacity in the same way as nationals of the host state.

49.	The context in which Article 7(3) of the new directive or Article 7(1) of the old directive operates is that, to the extent that European Community law does not guarantee rights of residence, the Union allows Member States to put pressure on those who are not self-sufficient to leave their territory by denying them social assistance.  Article 7(3) of the directive restricts the power of Member States to put pressure on people to leave their territory during periods of temporary absence from work.  In the present case, the Secretary of State’s argument requires that it be considered consistent with Article 39 of the Treaty to put pressure on the claimant’s wife to leave the United Kingdom as well as on him.  Ms Ryan, on the other hand, in effect argued that it was consistent with the approach taken by the directives that such pressure should not be put on the claimant’s wife.

50.	It is true that the directive does not protect workers against the consequence of a temporary non-availability for employment due to the need to care for a member of the family who is seriously ill.  However, I am not satisfied that this is because it was considered that such people should in principle be excluded from the guarantee of a right of residence in all circumstances.  As I have already observed, many people in the claimant’s wife’s position would have retained the status of worker, and with it the right of residence for herself and her husband, because they would have been granted leave of absence from employment.  In many other cases they would retain a right of residence as the dependant of the person for whom they were caring.  Thus, iif the claimant in the present case had been a citizen of the European Union, he would have retained his right of residence while ill, by virtue of his own status as a worker.  

51.	This raises the question of the extent to which the Council intended that those who are not nationals of Member States but are members of a family of a Union citizen should be treated differently form citizens of the Union in circumstances such as there are here.  It is to be noted that dependants who are not nationals of Member States retain rights of residence upon the death of the Union citizen or termination of marriage if they themselves are workers.  This is a recognition that, where a family member has exercised his or her right to take part in economic activity, there may be a degree of economic and social integration in the host Member State that makes it disproportionate to put pressure on the family member to leave notwithstanding the cost to the host Member State’s social assistance scheme.   It seems to me that a right of residence is conferred on a dependant for the benefit of the Union citizen who is exercising a Community right under, for instance, Article 39 and that this is partly because not allowing dependants to join migrant workers with the same degree of security as the Union citizen would inhibit the exercise by Union citizens of that Community right (see paragraph (5) of the preamble to Directive 2004/38/EC) and partly out of a “due regard for family life and dignity” (paragraph (15) of the preamble).  

52.	Determining whether the burden on public finances would be “unreasonable” requires some consideration of the particular rights that accrue under the national law of the member state in question to a person who has a right of residence in that state.  This is one reason why it is appropriate for the question of proportionality to be considered by individual member states and national courts.  It is therefore relevant that carers may qualify for income support in Great Britain.  It is also relevant that, if the spouse of a disabled person is obliged to remain at work in order to maintain the couple’s right of residence and so is unable to care for the disabled person, a duty to provide assistance would fall on the local authority under section 29 of the National Assistance Act 1948 and section 2 of the Chronically Sick and Disabled Persons Act 1970. 

53.	It is also highly relevant that, as Ms Ryan argued, there is little scope for abuse if a right of residence is recognised in a case like this.  Moreover, and cases like this are relatively rare.  It is not common for a person to be so severely disabled as to require assistance from another person, to an extent that would prevent that other person from being available for work, when the disability is temporary.

54.	In my judgment, having regard to all these considerations, the claimant’s wife’s right of free movement for the purpose of working, guaranteed to her by Article 39 of the Treaty, would be infringed if she and the claimant were not recognised as having the right to reside in the United Kingdom in the circumstances of this case.   There was a lacuna in the directives in force at the time of the claimant’s claim for income support and there is now a lacuna in Directive 2004/38/EC but I am satisfied that the claimant and his wife retained rights of residence by virtue of Article 18(1) of the Treaty.  Where a worker exercising rights under Article 39 of the Treaty in the United Kingdom is obliged to cease work and cannot be available for alternative work due to a need to care for his or her spouse who is a not a citizen of the Union but who is temporarily seriously disabled, they both retain rights of residence in the United Kingdom in the circumstances that arise in this case.  Among those circumstances are the facts that –

(a)	the disabled person had been exercising his Community law right to work in the United Kingdom and had become temporarily incapable of work;
(b)	the disability had first manifested itself some considerable time after the disabled person had arrived in the United Kingdom, after he had married and after he had started work;
(c)	the disabled person had qualified for free National Health Service treatment by virtue of his period of residence in the United Kingdom, which was at least in part by virtue of his right of residence under Community law, and was continuing to undergo such treatment while being cared for by his wife;
(d)	the recognition of the claimant’s right of residence under Community law when he married had led to him losing the opportunity of establishing a right of residence in his own right as a refugee.

Whether any of those circumstances is determinative can be decided when the need arises.  (If point (a) is not determinative, it may follow that a person retains a right of residence while temporarily unable to be available for work due to the need to care for a dependant child, although, I would suggest, only where the child’s need for care is temporary and is wholly due to the seriousness of the disability rather than the child’s age.)

55.	If ever a case called for the “certain degree of financial solidarity between nationals of a host member state and nationals of other member states” recognised in Grzelczyk, this is it.  To put financial pressure on a couple to leave the United Kingdom because the wife needs temporarily to cease work to care for her husband is not consistent with a “due regard for family life and dignity”.  While the United Kingdom is generally entitled to limit access to its social assistance schemes to those who have rights of residence under domestic law that is consistent with Council directives, Article 18(1) of the Treaty and the principle of proportionality require that that entitlement give way in this case to the claimant’s wife’s rights as a citizen of the Union who has been exercising the freedom of movement guaranteed by Article 39 of the Treaty.

	(signed on the original)	MARK ROWLAND
		Commissioner
		31 October 2007