2014 06 Migrants

Tuesday 1 July 2014

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In Jessy Saint Prix v Secretary of State for Work and Pensions (Case C‑507/12), the Court of Justice of the European Union (CJEU) decided that an EU national who left work due to pregnancy retained her worker status. SP, a French national, worked in the UK in various jobs between September 2006 and August 2007. She then started a teaching course, but gave it up when she became pregnant and realised that the baby would be born before the course could be completed. SP worked again between January and March 2008, but had to give up work when six months pregnant because she found her work, caring for nursery school children, too strenuous. She claimed income support but it was refused on the basis that she did not have a right to reside in the UK. Three months after the birth of her child, SP returned to work. The Supreme Court ([2012] UKSC 49) asked the CJEU to decide whether a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth is a ‘worker’ for the purposes of Article 45 of the Treaty on the Functioning of the European Union (TFEU) and Article 7 of EC Directive 2004/38.

The CJEU held that case law of the Court has consistently held that pregnancy must be distinguished from illness and that, as a result, a woman in the situation of Ms Saint Prix cannot be regarded as a person temporarily unable to work as the result of an illness, in accordance with Article 7(3)(a) of the directive. However, it did not follow that, a citizen of the Union who did not fulfil the conditions laid down in that Article 7 was, therefore deprived of worker status. Article 7(3) did not contain an exhaustive list of the circumstances in which a migrant worker who is no longer in employment can retain worker status. The Court concluded in answer to the question referred, Article 45 TFEU (former Article 39) must be interpreted as meaning that the fact a woman who had to give up work because of the physical constraints of the late stages of pregnancy retains the status of a ‘worker’, provided she returned to work or found another job within a reasonable period after the birth of her child. Click here for transcript.

The Upper Tribunal in JR v SSWP (IS) [2014] UKUT 154 (AAC) (C.G. Ward) 2014) held that the claimant, a Dutch national, was not a worker or self‑employed for the purposes of Article 7(1)(a) of Directive 2004/38/EC by reason of having received carer’s allowance in respect of care provided to Ms G, the mother of his children. The Upper Tribunal held that: (i) the payment of carer’s allowance was not remuneration for services, (ii) the provision of care was not an economic activity; and (iii) there was no element of subordination on the part of the Secretary of State over the recipients of carer’s allowance. Click here for transcript.

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