In the very recent case of Saint Prix C-507/12, the ECJ took the bold of step of re-emphasising the pre-eminence of EU law as the determinant of questions regarding EU law interpretation and application over national sentiments.
There are two different dimensions to this case. On the one hand is a move by the Home Office to exclude jobseekers and workers from enjoying EU status, and the other is a decision by the court widening the category of people no longer working but still entitled to claim worker status.
In this case, the Home Office had, by amendment introduced in the Immigration (European Economic Area) (Amendment) Regulations 2014, S12014, No 1451,which came into force on 01 July 2014, restricted the meaning of a worker or jobseeker to exclude anyone who enters the UK in order to seek employment, or who had lost their job and seeking new employment for more than one hundred and eighty-two days. In order for such a person to retain worker/jobseeker status after the one hundred and eighty-two days, a new high evidential test will be applied, ie that there must be compelling evidence that the person has a genuine chance of getting employment on the one hand, or that he or she can show that he or she is self-sufficient at least to minimum Social Benefits standards, in order to continue to have a right to reside in the UK.
The more worrying part of the Amendment is that it seeks to exclude workers from retention of that status after one hundred and eight-two days without finding a new job. Under the new Regulations, an EU citizen who has been employed for at least one year, and then becomes involuntarily unemployed, and has registered with the relevant employment office as unemployed now only retains the status of worker for one hundred and eight-two days following the loss of his or her job. This was not sanctioned by Directive at all, and is a new and additional requirement.
A typical scenario is an EEA national who has been in employment and had lost his employment due to no fault of his e.g. Redundancy etc; will lose worker status if he or she does not obtain a new employment within one hundred and eighty-two days and therefore will not be entitled to claim jobseekers allowance after one hundred and eighty-two days, and will lose the right to reside in the UK (ie will be required to leave the UK) after one hundred and eighty-two days. The effect of this can be felt in that a person who may have acquired right to permanent residence on a combination of periods spent as a Job seeker will no longer be able to do etc.
This will have implication not just for the EEA national but also the Non EEA family member of the EEA national.
In this case, the ECJ concluded, by re-emphasising the correct interpretation of a jobseeker, ie that a jobseeker has a right to reside as long as there is a genuine chance that he or she will find employment, and there can be no automatic cut-off point to the status, nor can there be an automatic change of evidential burden on the person regarding proof of his or her status. It confirmed that there would be no requirement to implement a specified period for loss of status of worker, but prescribes that a reasonable time is the test. The reasoning of the court is that if Member States are permitted to interpret the terms of the Directive, then the content will be varied from one Member State to another, and this would be fundamentally detrimental to the right of free movement of workers, which must have one consistent meaning irrespective of Member States, where the individual is exercising their rights.
This decision does have wider implications, as it re-emphasises the correct approach in interpreting EU law and Directives, and so will have implication in approaching the manner in which other Amendments introduced by the Home Office will be considered.
The interesting point arising from this is that EU citizens and family members applying for permanent residence, retained right of residence, or for a registration certificate/residence card will require having their circumstances properly assessed, in order to ensure that they had retained worker status for all intents and purposes, in terms of the Directives; This indeed will require expert legal input.
At Drummond Miller we have significant experience in this area, and will be able to assist.