European Union - Workers - Social security
St Prix v Secretary of State for Work and Pensions: Court of Appeal, Civil Division (Ward, Burnton and Black LJJ): 13 July 2011
Article 7 of Council Directive (EC) 2004/38, so far as material, provides: '1. All Union citizens shall have the right of residence on the territory of another member state for a period of 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 enrolled at a private or public establishment, accredited or financed by the host member state on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and – have comprehensive sickness insurance cover in the host member state and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they 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; 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 the 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. 4. By way of derogation from paragraphs 1(d) and 2 above, only the spouse, the registered partner provided for in Article 2(2)(b) and dependent children shall have the right of residence as family members of a Union citizen meeting the conditions under 1(c) above. Article 3(2) shall apply to his/her dependent direct relatives in the ascending lines and those of his/her spouse or registered partner.'
The claimant was a French national who came to the United Kingdom. She worked in various jobs for just under a year. She then enrolled on a one-year course, but left half way through as she became pregnant and realised that she would give birth prior to the end of her course. By the time she was six months pregnant she was undertaking agency work caring for nursery school children. The demands of that work proved too much and so she stopped.
The claimant looked unsuccessfully for lighter work for a few days before giving up doing so and claimed income support. The claim was refused on the basis that she lacked the right to reside. The claimant brought proceedings alleging that her claim for income support had been wrongly refused.
The decision turned primarily on the interpretation and effect of art 7.3 of Council Directive (EC) 2004/38 (on the rights of citizens of the Union and their family members to move and reside freely within the territory of the member states) (the Citizenship Directive). The judge held that the claimant was not to be treated as habitually resident in the UK for the purposes of her claim to income support because she had not, at the material time, had a right to reside in the UK. Therefore for those purposes she was a 'person from abroad' with an income support applicable amount of nil under para 17 of Sch 7 to the Income Support (General) Regulations, 1987/1967. The claimant appealed.
She submitted that she had had a right of residence conferred by the Citizenship Directive. In the alternative, the claimant submitted that the Citizenship Directive was discriminatory. The claimant contended that art 7.1 conferred the relevant right of residence on workers and self-employed persons. She was a worker at the relevant rime, albeit that, having become pregnant, she had ceased work temporarily. Article 7.3 was not to be construed as a comprehensive definition of persons who, while not actually working, retained the status of a worker.
She had ceased work only days before she made her claim for income support, too brief a period for her to have lost her status as a worker and her right to reside in the UK. On her alternative argument, the claimant contended that if she was not a worker for the purposes of art 7, its provisions unfairly discriminated against pregnant women who as a result of pregnancy could not work. The appeal would be dismissed.
(1) 'Worker' in art 7 could not be construed to include a person who had no contract of employment, was not therefore on maternity leave, and was not working by reason of pregnancy (see  of the judgment). It would be inconsistent with the provisions of the Citzenship Directive to hold that a woman who ceased work because she was pregnant retained the status of a worker, since pregnancy was not an illness, and the disability that resulted from pregnancy did not result from an accident within the meaning of art 7.3. Illness during pregnancy would of course be different.
To hold that the status of worker was retained during pregnancy would be illegitimate judicial legislation, amending art 7.3(a) by inserting 'or pregnancy'. Moreover, the effect of the insertion would be uncertain: for how long before and after the expected date of delivery would the status of worker be retained? (see  of the judgment).
(2) In the instant case, there had been no direct discrimination. Neither art 7 nor the domestic social security legislation excluded the claimant from the right to income support on the ground of her pregnancy or her gender.
Domestic legislation confined income support to those who had the right to reside in the UK: it discriminated on the basis of the right of residence. Authority established that discrimination in respect of eligibility for social security benefits on the basis of the right of residence was justified. Accordingly, there was no indirect discrimination (see - of the judgment). Dias v Secretary of State for Work and Pensions  All ER (D) 358 (Jul) applied; Patmalniece v Secretary of State for Work and Pensions  3 All ER 1 applied.
Richard Drabble QC (instructed Sarah Clarke, solicitor to the Child Poverty Action Group) for the claimant. Jason Coppel and Denis Edwards (instructed by the Legal Group of the Department for Work and Pensions) for Secretary of State.