FREE MOVEMENT OF WORKERS

Collins v Secretary of State for Work and Pensions: [2006] EWCA Civ 376

CA: Brooke, Jonathan Parker and Maurice Kay LJJ: 4 April 2006

After a ten-month period of casual employment in the United Kingdom in 1980 and 1981, the applicant, who had been born in the United States of America and had dual United States and Irish nationality, went back to the United States and subsequently worked there and in Africa. In 1998, he returned to the United Kingdom and began a search for employment. His application for jobseeker's allowance, a benefit available to jobseekers provided that they were in Great Britain, was unsuccessful, on the ground that the Jobseeker's Allowance Regulations 1996 prescribed a nil amount for a "person from abroad", defined in regulation 85(4) as a person who was neither habitually resident in the United Kingdom nor deemed to be so by reason of being, inter alia, a "worker" for the purposes of Council Regulation (EEC) No 1612/68 or a person with a right of residence in the United Kingdom under Council Directive 68/360/EEC. In the course of an appeal by the applicant, the Social Security Commissioner, while accepting that the applicant's search for work was genuine, found that he was not "habitually resident" and sought from the Court of Justice a preliminary ruling on whether a person in the applicant's situation was a "worker" for the purposes of Regulation No 1612/68 or had a right to reside in the United Kingdom under Directive 68/360, or whether any other provision of Community law required the payment of a benefit such as jobseeker's allowance to such a person. On the resumed hearing, the Court of Justice having held that the applicant did not have a right to reside, the Social Security Commissioner, applying the court's rulings on the other issues, found that the applicant was not a "worker" for the purposes of regulation 85(4); held that the habitual residence test, while not the only method of establishing a link between an applicant for jobseeker's allowance and the United Kingdom employment market, was justified and that the applicant did not satisfy it; and dismissed the applicant's appeal.

The applicant appealed.

The Court of Appeal held:
(1) A requirement that there should be a genuine link between an applicant for an allowance in the nature of a social advantage, such as jobseeker's allowance, and the geographic market in question was not synonymous with a requirement that the applicant should be actively, that was genuinely, seeking work in that market at the material time. Accordingly, in the context of an application for such an allowance, a genuine link requirement could, subject to questions of justification and proportionality, be legitimately imposed by a member state in addition to a requirement that an applicant should be actively seeking work, and the applicant did not establish a genuine link with the relevant market merely by making a genuine application.

(2) In establishing whether or not the requisite genuine link with the United Kingdom employment market was established, the test in regulation 85(4) of the Jobseeker's Allowance Regulations 1996 of whether the applicant was "habitually resident" in the United Kingdom was both legitimate and justified, and that test simpliciter, as a means of establishing the requisite genuine link between an applicant for jobseeker's allowance and the United Kingdom employment market, was fully compatible with Community law, and there was no basis for introducing any proviso whereby the requisite genuine link could be satisfied in some other way.

The appeal was dismissed.

Appearances: Richard Drabble QC (Solicitor, Child Poverty Action Group) for the applicant; Christopher Vajda QC and Josh Holmes (Solicitor, Department of Work and Pensions) for the Secretary of State.