2011 07 International Law

Monday 1 August 2011

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In Bartlett and Others (Social security for migrant workers) [2011] (Case C-537/09) the Court of Justice of the European Union (CJEU) decided that the mobility component of DLA was a special non-contributory benefit and therefore was not exportable. Each of the claimants had appealed to a tribunal against the decision of the DWP to supersede their award of DLA (including both the care and mobility components) when they moved to an EEA country. In each case, the tribunal upheld the DWP's decision and the claimant then appealed to a Social Security Commissioner. Interim decisions were made in each appeal that entitlement to the care component continued on the basis that it was a sickness benefit applying Case C-299/05 European Communities v European Parliament and Council of the European Union. Judge Mesher in CDLA/496/2006 referred a series of questions to the ECJ in relation to the mobility component in each of the appeals. The CJEU said that the mobility component of DLA was severable from the care component and constituted a benefit by itself which could be included on the list in Annex IIa to Regulation No 1408/71, as a special non-contributory benefit as a non-exportable benefit. The CJEU also confirmed that it was permissible for the European Union legislature to adopt provisions derogating from the principle of the exportability of social security benefits particularly in relation to benefits closely linked with the social environment (Joined Cases C 396/05, C 419/05 and C 450/05 Habelt and Others [2007] ECR I 11895, paras. 78 and 81). The CJEU also said that the case-law on citizenship of the Union did not disclose anything capable of affecting the validity of Article 10a (Case C 287/05 Hendrix Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen[2007] ECR I 6909), (click here for transcript).

In Dias v Secretary of State for Work and Pensions (European citizenship)(Case C-325/09)Ms Dias was a Portuguese national who entered the UK in January 1998. Her residence was divided into the following five periods: (1) January 1998 to summer 2002: in work; (2) summer 2002 to April 17, 2003: on maternity leave; (3) April 18, 2003 to April 25, 2004: not working; (4) April 26, 2004 to March 23, 2007: in work; and (5) since March 24, 2007: not working. At the end of March 2007, Ms Dias applied for IS. In May 2000, the Home Office had issued Ms Dias with a residence permit which indicated a period of validity from May 2000 to May 2005. The Court of Justice of the European Union (CJEU) said that as Ms Dias had completed a period of five years residence as a worker (the first and second periods of her residence) in the UK in accordance with the EU law instruments in force at the time. The CJEU considered whether Ms Dias was able to rely on the third period of residence to acquire the right of permanent residence which occurred before April 30, 2006 when the Directive2004/38 came into force where that period of residence had been completed on the basis of a residence permit alone.

The CJEU said that a residence permit was purely declaratory and was not capable of establishing a right of residence for the holder (Case C-408/03 Commission v Belgium [2006] ECR I-2647). The CJEU however, went on to consider whether the third period of residence could be relied upon in the acquisition of the right of permanent residence. The CJEU said that the reasoning in SSWP v Lassal (Case C-162/09) (concerning the effect of an absence of less than 2 years from the UK ) applied by analogy to periods of residence completed on the basis solely of a residence permit, without the conditions governing entitlement to any right of residence based on a period of five years’ legal residence completed prior to the coming into force of the Directive 2004/38 would not prevent Ms Dias from acquiring the right to permanent residence under Article 16 of the Directive, (click here for transcript). Adrian Berry was counsel for Ms Dias in this case.

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