The lawfulness of the "genuine prospect of work" test and the requirement for “compelling evidence” following the amendments to reg 6 of the EEA Regulations 2006

Sunday 30 October 2016

Secretary of State for Work and Pensions v MB (JSA) and others (European Union law: free movement) [2016] UKUT 372 (AAC), 05 August 2016 The lead case on the lawfulness of the "genuine prospect of work" (GPOW) test, which was introduced by the UK in 2014 in order to restrict EEA nationals access to Jobseeker’s Allowance by European Union nationals.

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Secretary of State for Work and Pensions v MB (JSA) and others (European Union law: free movement) [2016] UKUT 372 (AAC) (05 August 2016) is the lead case on the lawfulness of the "genuine prospect of work" (GPOW) test, which was introduced by the UK in 2014 in order to restrict EEA nationals access to Jobseeker’s Allowance by European Union nationals.

The Upper Tribunal held that the right to reside as a jobseeker under EU law as explained by the CJEU in R v Immigration Appeal Tribunal ex p Antonissen (C-292/89) subsists as long as the conditions for it are met. The suggestion that the EEA Regulations 2006 imposed an absolute limit of six months on this right to reside was inconsistent with the terms of Antonissen.

On the other hand, a tribunal must take a period of six months (or longer) of unsuccessful job-seeking into account, along with other factors, in assessing whether a person has a “genuine chance” of finding work (at [51]).  The Antonissen test was one which required the following enquiry of a claimant:

“Given that you have had six months of unsuccessful job seeking, a period appearing to the Court of Justice to be in principle not insufficient to take the steps which Art 45 requires you to be allowed to take, on what basis do you say you nevertheless have a genuine chance of being engaged?”

As for the meaning to be given to phrase "compelling evidence" the Judge refers to Re B (Children) [2008] UKHL 35 which held that there is only one civil standard of proof". Moreover, the Judge said that requirement for “compelling evidence” cannot be used to raise the bar for what constitutes a genuine chance (or chances) of being engaged higher than it falls to be set in accordance with EU law in the case Antonissen.

The Upper Tribunal added that complying with domestic job-seeking requirements (i.e. following a jobseeker’s agreement or claimant commitment) cannot alone be relied upon to satisfy the GPOW test as they are different things. Finally, the judgment also makes clear that the DWP Guidance to Decision Makers that a genuine chance will only exist where the claimant has an offer of work due to start within the next 3 months is overly restrictive.

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