Pregnancy and right to reside: UT judgment on scope of Saint Prix

We have the judgment in the Saint Prix scope case – [2015] UKUT 0502 (AAC).  A pdf of the judgment is on our website here: http://www.cpag.org.uk/content/pregnancy-right-reside-scope-saint-prix

A very helpful judgment from Judge Ward which effectively overturns most of the DWP’s current guidance on C507/12 Saint Prix  - 

Judge Ward answered the following questions:
1.    What is the nature of the Saint Prix right? The test is “primarily one of intention”, but subject to the special protection accorded to pregnancy.  It is prospective rather than retrospective.  The need for an intention to return to work is not a “condition precedent” to the right coming into existence but a “condition subsequent” for terminating the right to reside where it is not met [21-22].  Which I think basically means that the DWP shouldn’t place too much weight on what a claimant says at the outset about her intention to return to work, unless she says she has “absolutely no intention of returning to work under any circumstances” [24].
2.    To whom are Saint Prix rights available? One may enter the Saint Prix period either having been employed immediately beforehand or having retained worker status pursuant to Article (3).  He leaves open the question of whether one can enter the period as a jobseeker. [25]
3.    When does the Saint Prix right start? 11 weeks before the birth is a “yardstick” which is capable of being displaced in particular cases.  [26]
4.    How long does the reasonable period last?  52 weeks, which may vary depending on the circumstances of the case.  “As a matter of practice rather than of law it seems likely that it will be an unusual case in which the period is other than the 52 week period.” [35]
5.    Does a woman have to return to work (or find another job) or will a return to jobseeking suffice?  One can leave the period by returning to a job or returning to the employment market under Article 7(3)(b) or (c) [40].
6.    Can a Saint Prix right count towards permanent residence? Yes [44].

Thanks to Adrian Berry and Desmond Rutledge who appeared for the claimants.

Mike

rightsnet summary of the decision now published -

http://www.rightsnet.org.uk/welfare-rights/caselaw/item/retaining-worker-status-after-giving-up-work-or-work-seeking-due-to-pregna

Here’s an analysis of the case from Garden Court Chambers’ Adrian Berry who, with Desmond Rutledge, represented the three claimants -

http://nationality-migration-blog.tumblr.com/post/129411303162/uk-female-eu-citizens-retain-worker-status-for

Can it be used to give a right to reside to a self-employed woman who is unsure whether she will return to being self-employed (she was selling the big issue)

See CIS/1042/2008 - a woman who intends to resume self-employment following her maternity period retains her self-employed status.

I’ve seen that one Mike - but not sure if she intends to resume self-employment

I think that you could argue that effectively the principle in CIS/1042/2008 (that a woman who stops self employment due to maternity etc still counts as self employed) should be applied in an analogous way to when a woman stops work etc as set out in SFF:

Just as in the latter case, it does not matter that there is no positive intention to return to work, what counts is that there is not a positive intention not to do so (sorry for the double negative: ie woman has not firmly decided to leave labour market), then the same should apply.

See para 22 of the SFF judgment:

22. Against that background, I do not view the proviso in [41] of Saint Prix as creating a condition precedent to the right coming into existence, which would have the consequence that the existence of the right could only be assessed retrospectively, but as a condition subsequent for terminating it where it is not met.  To treat it in the former manner would be to create a prolonged period of uncertainty, with the sort of potential “chilling “ effect [44] of Saint Prix cautions against.  It would deprive a woman (and it should not be forgotten that we are dealing here primarily with those who do not have the protection afforded by an ongoing contract of employment) of the benefits of “worker” status, including in relation to such matters as are contemplated by Article 7 of Regulation 493/11, just when, in late pregnancy and the aftermath of childbirth, she might particularly need them.  To treat it in the latter way means that a woman is protected by her worker status until such time, not exceeding the end of the “reasonable period” contemplated by [47] of Saint-Prix, as she by her words or actions shows an intention not to be part of the employment market.

So effectively so long as the claimant has not got a firm intention never to return to self employment you should be fine.