…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.