Saint Prix v SSWP Case C-507/12 must be one of the more obvious decisions of the CJEU in the sense that the outcome should have been apparent (although the rationale less so), but no less important because of that. The question on reference from the UKSC was, in essence, whether somebody who becomes pregnant loses their worker status for the purposes of Article 7(1), Directive 2004/38/EC. As one of my colleagues put it, the case is of “mild interest”.
Bearing in mind the significance of losing worker status, in terms of eligibility for homelessness assistance/allocation and the range of benefits, this is a question of some importance. The outcome, which should surprise no-one, is that a pregnant woman, who gives up work “because of the physical constraints of the late stages of pregnancy and the immediate aftermath of childbirth” is not deprived of the status of worker, provided “she returns to work or finds another job within a reasonable period after confinement”. The “reasonable period” is to be judged taking into account the circumstances of the specific case, the introduction of specific measures concerns health and safety of pregnant workers and workers who have recently given birth or are breastfeeding.
The rationale is also fairly clear in the short judgment. The concept of worker is, of course, to be defined broadly and, in other cases, has been found to extend to periods after employment, for the purposes of seeking further employment. Therefore the list of exceptions in Art 7(3) – which sets out the circumstances in which a worker retains that status, eg as a result of temporary inability to work due to illness or accident – is not exhaustive ([38]). Clearly also, “a Union citizen would be deterred from exercising her right to freedom of movement if, in the event that she was pregnant in the host State and gave up work as a result, if only for a short period, she risked losing her status as a worker in that State” ([44]). Further, Art 16(3) allows for special protection for maternity absences of up to 12 months in calculating the five year period for the right of permanent residence – the temporary absence from work must then be a fortiori.
The court has, therefore, avoided answering the rather tricky questions in the opinion of the Advocate General, at [44]-[52]. If Ms Saint Prix had been unable to claim worker status, did it necessarily also follow that she would not have been entitled to social security in the UK? Hitherto, the assumption has been that she would have lost those rights as well. The Advocate General did not share that assumption unconditionally. I hear on the grapevine that the UKSC will be looking at this question shortly in Samin v Westminster CC and Mirga v SSWP. Let’s hope that the tories don’t choke on their tea and renegotiation.