Vatsouras and IBJSA

Hi all,

Just a quick question about Vatsouras (Joined Cases C-22/08 and C-23/08). There the Court held that people who can show a genuine link to the labour market of the host can rely on art.45 TFEU to support an interpretation of “social assistance” in art.24(2) Dir 2004/38 as not including benefits designed to facilitate access to the labour market. In other words, the host cannot rely on the art.24(2) derogation to exclude JSA from jobseekers in this position, even where their only right of residence is the first three months (art.6).

What would a claimant have to do to establish real links with the labour market? The Court says a period of jobseeking will be enough, but for how long? I’m guessing it would be a very unhelpful 3 months unless, perhaps, C was seeking work in the UK from the home country (e.g. over the internet or telephone)... Is there any judicial guidance?

Thanks and best wishes,

Matt
CAB, Great Ormond Street Hospital

Looking at Sweet and Maxwell (vol.III para. 3.187) on this I think you’ve got it the wrong way round - C-22/08 and C-23/08 confirm the validity of art. 24(2) and as such those whose only right to reside is either initial or as jobseekers can be denied benefit.  However, the EEA Regs don’t, reg 6(4) allowing someone to be a qualified person if they are seeking employment and have a genuine chance of being engaged. While this gives a right to reside, the stumbling block then is the HRT for JSA, so we then get into settled intent, appreciable period of residence, etc. .... but as long as you sign on that should prove you are seeking employment so you have that right to reside even if the HRT still stops you getting JSA.

Thanks for the reply.

I think CPAG p 1448 has thrown us all a bit. It seems to say you will not satisfy RTR test if your only right of residence is the first three months but then goes on to say “This means that if your only right to reside is as an EEA jobseeker, this will not satsify the right to reside test for any of the means-tested benefits except income-based JSA.”

I’m not quite sure what to make of this discrepancy but either way, having reviewed the JSA Regs, I agree with you. Reg 85A(3) says a valid RTR is one under reg 13 EEA Regs or art.6 Dir 2004/38 (i.e. first three months). However, I’m still sure Vatsouras takes benefits like JSA out of the derogation in art.24(3) so long as they facilitate labour market access (hence CPAG’s point about income-related ESA). Either way, a claimant wouldn’t need to rely on Vatsouras; he only needs the JSA Regsas they are.

Thanks again!

Hi Matthew,

I am not sure Vatsouras is something you need to worry about if the issue is simply whether someone who has a right to reside as a jobseeker can obtain ibJSA.

What Vatsouras highlights is the following:

1. Benefits which are of a financial nature and intended to facilitate access to the labour market must be provided to migrant jobseekers who can establish they have a genuine link with the local labour market - this is because free movement of workers implies also that people are free to move in order to seek work. There would not be real freedom of movement in order to seek work if a state gave its own citizens an advantage by giving them a financial payment when they were out of work but denied this to jobseekers from other EU states. The rights to this equal treatment come directly from Article 45 TFEU.

2. Art 24(2) Directive 2004/38 does allow member states to discriminate against EU migrant jobseekers as compared with British citizens in terms of their right to access social assistance benefits.

3. Statement 1 and Statement 2 above would be incompatible if a benefit of a financial nature intended to facilitate access to the labour market counted as social assistance. Therefore, such benefits are not social assistance within the meaning of Article 24(2) (to interpret it otherwise would create a situation of the secondary legislation (ie the Directive) conflicting with the primary (ie the Treaty).

In the UK there is no express test for determining whether a jobseeker has established genuine links with the UK labour market. In Collins the ECJ effectively suggested that the HRT (absent the R2R bit at that time) could potentially (provided certain conditions met) function as a proxy measure of whether those links established. The CA said the conditions were met.

In terms of UK legislation- although IS, irESA, PC and HB/CTB all have rules which say (a) you must have a right to reside and (b) if that right to reside is solely as a jobseeker this is not sufficient, ibJSA has no such rule. That is also what is said at page 1448- there are two bullet points: the first relates to IS, irESA, PC and HB/CTB. The second to ibJSA.

A person whose only right of residence is as a person in the UK during first 3 months does not (by implication) have a right of residence as a jobseeker. In practice though (apart from rare examples identified in R(IS)8/08) all people meeting JSA labour market conditions will usually have a right to reside as a jobseeker.

I think what trips people up is failing to see that a person may have multiple rights of residence in the UK: for example-

Denise, aged 18 came to the UK from France, 3 years ago. She works 15 hours in a hairdresser. She is also looking for more work as she would like to increase her income. She is still covered by her dad’s French health insurance. In the evenings, she is studying an accountancy course. Her mother also lives in England and is self employed.

Denise has the following rights of residence in EU law:

1. As a worker (her 15 hours work).
2. As a workseeker (she wants more work is looking for it and has a genuine chance of getting).
3. As a student (she has sufficient resources and also comp. sickness insurance).
4. As a self sufficient person.
5. As a family member of her self-employed mother.

So someone here within their first 3 months who is a jobseeker can still get JSA- on the basis they have a jobseeker right of residence. The only barrier is the HRT test in fact.