It’s not how long it is…

…but what you do at the end of it that counts*

FMB (EEA reg 6(2)(a) – ‘temporarily unable to work’) Uganda [2010] UKUT 447 (IAC)

The Immigration and Asylum Tribunal (Upper Chamber) is not our usual stamping ground, but this is a decision which has considerable broader significance for housing and benefit eligibility. It dates from November 2010, but we’ve just come across it. At issue was the meaning of Regulation 6(2)(a) Immigration (European Economic Area) Regulations 2006, which hold that an EEA worker does not cease to be treated as worker (and hence lose the right to reside and benefit/housing eligibility) if:

that the person “is temporarily unable to work as the result of an illness or accident.

What does ‘temporary’ mean in the context of the regulation? I won’t go into detail of the facts of the case, but it involved someone who had worked for 2 years as a teacher, then was unable to work for 4 years, then became a student. (The immigration question was this person’s right to reside and his daughter’s, a Ugandan, right to come to live with him).

The Secretary of State had refused the daughter a permanent residence card on the basis that the father was not a qualified person who had exercised treaty rights for more than 5 years, relying on that 4 year period of not working. This was overturned by the Immigration Judge, who found that ‘temporary’ in Reg 6(2)(a) meant that any illness or incapacity which was less than permanent must be regarded as temporary.

The Secretary of State appealled, initially on completely misconceived grounds of ‘unreasonable burden to a social assistance system’, Reg 13(3)(b). Unfortunately for the SoS, this regulation only applied to an initial right of residence for 3 months. A day before the hearing, the SoS sought to amend to argue that a temporary period of incapacity could not be as long as 4 years, (albeit with no authority on the point, and without being able to say what third state fell between ‘temporary’ and ‘permanent’).

The respondent argued that the regulations gave set period of time where such periods were intended. The omission in regard to ‘temporary’ was significant. Secondly:

when the EEA Regulations were read as a whole, reg 6(2)(a), relating to temporary inability to work, and reg 5(3)(b), relating to permanent cessation of activity, dove-tailed together in a manner implying that a person not permanently incapable of work was to be regarded as temporarily incapable of work.

The Upper Tribunal held that, if an inability or incapacity to work was not permanent, then it should be considered as temporary, citing the first definition in Collins English Dictionary (1991) of “Not permanent; provisional”. It noted in passing that “A finding of temporary inability to work for an extended period would not be sustainable if a person having given up work owing to illness then abstained from working voluntarily.” The appeal was dismissed.

So there we have it – binding authority for the proposition that there is no set (or arbitrary) cut off to the period for retaining worker status while temporarily unable to or incapable of work as a result of illness or accident. I’ve seen this crop up in homeless eligibility and it would also be relevant for benefit and Part VI eligibility.

*Sorry, sorry. I’m really sorry. I did try, but I couldn’t come up with anything better as a title. Quite a few worse, but none better.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Homeless, Housing law - All, secure-tenancy and tagged , , , , .

15 Comments

  1. Since the applicant was from that particular corner of Africa, you could have taken a leaf out of Private Eye’s book and called it “Ugandan Negotiations.”

    • Alas, discussing Uganda was a stretch too far, as it was EEA regs at stake. Discussing Brussels is rather too prosaic (and culinary).

      By the way, could you change your ID from JS to something else, please. We already have a JS commenting, of long standing, and it confuses matters.

  2. I think there is a upper tribunal social security decision CIS/3890/2005 which said the key question is whether the person’s illness will permanently prevent someone from doing any kind of work in the future.

    You could therefore have a permanent/long term condition but still be temporarily ill under the 2006 regs. The emphasis is really on the effect your condition has on your ability to work rather than the condition itself.

    (Not sure if that case i refered to is up to date though.)

  3. http://www.bailii.org/uk/cases/UKUT/IAC/2010/00447_ukut_iac_2010_fmb_uganda.html

    Paragraph 27 I think is the important bit. The court stated that a finding of temporary inability to work for an extended period would not be sustainable if a person having given up work owing to an illness then abstained from working voluntarily. So my first reaction was to think that if a person is able to work in any capacity then he cannot claim the benefit of Regulation 6. He will be a job seeker and thus not entitled to housing accommodation.

    However, in the case of Alton v Stadt Boblingen (Case C-337/07) the Third Chamber pointed out that notwithstanding a temporary interruption of the employment relationship if a worker continues to be duly registered as belonging to the labour force in the host member State then that person will continue to be a worker -albeit only for so long as is reasonably necessary for him to find paid employment. A person is excluded from the labour force only if objectively he no longer has any chance of rejoining the labour force or has exceeded a reasonable time-limit for finding new employment after the end of the period of inactivity.

    So a person who is no longer incapable of working or unable to return to work then he will not be a job seeker but a worker.

    • Thanks Stephen, I’ve updated the post with the link.

      I agree with your analysis. Worker status is arguably retained through the period of temporary incapacity, then, after it ends, for the ‘reasonably necessary period of time’ to find paid employment.

    • I think once a person becomes well if they voluntarily withdraw from the job market they will become economically inactive and would not be doing anything that would allow them to retain worker status.

      Having said that i think if a person is temporary ill and then signs on for JSA once they recovers they would flip to regulation 6(2)(b)(ii) or (iii).

      If you are using regulation 6(2)(iii) i would say the question is whether the person is registered at a job centre, can provide evidence he is seeking employment in the UK and has “genuine chance of being engaged”.

      If a person is signing on they will have the JSA journal and have to sign on every two weeks which should satisfy the first two requirements.

      WRT the third point I would probably argue that so long as a person got JSA the state clearly believes the client has a genuine prospect of being engaged or they would not pay the benefit and thereore regulation 6(2)(b)(iii) is satisfied.

      Also in a recession i would imagine that where there is a genuine lack of jobs it might be a bit tricky for a LA to show that a person does not have a genuine chance of being engaged.

  4. It is settled case-law that, in order not to deprive of their substance the rights derived by a former worker, Regulation 6 must be interpreted as not relating merely to engaging in employment but as granting a worker already duly integrated into the labour force of the host Member State an unconditional right to employment which necessarily implies the right to cease employment in order to seek other employment which he may freely choose (Nazli, paragraph 35). Unlike Regulation 6(2)(b)(i) and (ii), the third indent does not require an uninterrupted period of employment. From that, the Court concluded (Dogan, paragraph 19) that a worker is entitled to a temporary interruption of his employment relationship. In spite of such an interruption he continues to be duly registered as belonging to the labour force in the host Member State during the period which is reasonably necessary for him to find other paid employment, as NL points out. He may therefore claim an extension of his right of residence in that Member State in order to exercise his right to free access to any paid employment of his choice, provided that he does in fact try to find a new job and, if appropriate, registers with the employment services in order to find another job within a reasonable time (see, to that effect, Tetik, paragraphs 30, 31, 41, 46 and 48, and Nazli, paragraphs 38 and 40). That interpretation, and the effectiveness of the rights to employment and residence conferred on workers by the third indent of that Regulation 6(2)(b), must apply regardless of the cause of the absence of the person concerned from the labour force of the host Member State, provided that that absence is temporary and there is a reasonable chance of a job. As you say, how long it might take to find employment must relate, at least to some degree, to the economic circumstances prevailing at the time. The more work there is to go around the less time he might need to find employment. In those circumstances, except where the person concerned has definitively ceased to be duly registered as belonging to the labour force of the host Member State because objectively he no longer has any chance of rejoining the labour force or has exceeded a reasonable time-limit for finding new employment after the end of his last period of employment, the national authorities cannot restrict the rights which he derives from Regulation 6.

  5. Pingback: Eligibility: Reg 6(2)(a) « FreeLegalWeb

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