Right to reside: the pregnant pause?

Issue 209 (April 2009)

Martin Williams looks at the issues for pregnant EEA nationals caused by the 'right to reside' requirement.

Introduction

It is well established that the health of pregnant women is important to the future development of their children. It is also clear that it is difficult for people experiencing severe poverty to maintain their health. It is for this reason that the Government has introduced the health in pregnancy grant from 6 April of this year (see Bulletin 208, p. 5).

It is surprising therefore that, at the same time as these positive steps are being taken, the continued requirement that a person must have a right to reside to claim means-tested benefits 1can, and often does, operate to leave pregnant women and women with babies destitute, or force them to return to work sooner than they wish, sometimes in unsuitable and unhealthy jobs.

It is even more troubling that the new health in pregnancy grant also requires claimants to have a right to reside. It is important that those advising EEA nationals 2 who are pregnant, or have babies, understand the situations in which a right to reside may be retained during maternity.

Maternity leave

It is clear that a woman who works or is self-employed in the UK has a right to reside.3 It is important that women who wish to demonstrate they have a right to reside do not simply resign their jobs when pregnant.

  • It has now been confirmed that a woman who is on maternity leave (including unpaid maternity leave) is still a worker (CIS/4237/2007).
  • For A8 or A2 nationals 4 who are working in accordance with the worker registration/ authorisation scheme, the time spent on maternity leave counts towards meeting the 12 months continuous employment requirement (CIS/4237/2007).
  • In CIS/1042/2008, the commissioner held, accepting a concession by the Secretary of State, that a self-employed person taking a period of maternity leave from her self-employment remains a person who is self-employed during that time.

It is unclear at present what happens if a woman is unfairly dismissed from work while pregnant and therefore denied her maternity leave, although it seems arguable that such a person would also continue to count as a worker.

Retaining status due to temporary incapacity

Once someone stops working (being on maternity leave counts as working), then that status, and the right to reside it confers, is retained if the person is temporarily unable to work due to illness or accident.5The problem for pregnant women, and those unable to work due to having very young children, is that they do not easily fit within this rule.

  • It has been held that being unable to work due to pregnancy does not bring an expectant mother within the definition of someone who is 'temporarily incapable of work due to illness or accident'. This is on the basis of European Court of Justice decisions, made in the different context of employment rights and discrimination, which hold that pregnancy is not an illness. Even in situations where the UK regulations treat a person who is pregnant or who has recently given birth as incapable of work then worker status is not retained (CIS/4010/2007). The commissioner in that case based his reasoning in part on the fact that women could plan for the latter stages of pregnancy and therefore were in a different situation from those who were ill. The one exception here is that if a woman is unable to work due to pregnancy-related ill health this will satisfy the rule for retaining status due to illness (CIS/731/2007).
  • Furthermore, for those unable to work due to needing to care for babies with health problems, arguments that they retain status on the basis that they are unable to work because of the baby's ill health have failed (CIS/3182/2005 and CIS/599/2007).

Pregnant and retaining status while involuntarily unemployed

The inability of pregnant women whose contracts of employment have ended to be viewed as retaining worker status on the basis that they are temporarily out of the labour market due to maternity means that many are forced to claim jobseeker's allowance (JSA) - giving them either a right to reside as a jobseeker or allowing them to retain worker/self-employed status.

Claiming JSA while in the latter stages of pregnancy or with a baby raises many difficulties. The first is with the issue of whether the person actually has a right of residence.

  • Unless a person has worked for more than a year before becoming unemployed, or is within their first six months of unemployment after having worked, then the retention of status, or a right of residence as a jobseeker, is only possible where s/he can demonstrate a genuine chance of getting a job. The case law (CIS/1951/2008 and R(IS) 8/08) suggests that in general anyone who meets the domestic conditions of entitlement to JSA will meet this rule, however, there may be some cases (such as being in the latter stages of pregnancy) where this will clearly not be the case.

The second set of difficulties relate to the issue of whether a pregnant woman can be available for work - e.g., during a period when she may be in hospital or recovering from childbirth.

  • The rule allowing a person to be treated as available during a short period of illness 6does not appear to assist as this requires the inability to work to be as a result of some specific disease or disablement.
  • Once a woman is looking after a baby then advisers also need to be familiar with the range of circumstances in which a person can be treated as available for work or limit their availability. The changes made to the JSA regime consequent on restricting the definition of lone parent to those with children under 12 (see Bulletin 208, p. 8) are of some assistance - e.g., if a person is looking after a child and it would be unreasonable to expect her/him to arrange alternative childcare s/he can be treated as available.7

Finally, there are practical difficulties involved in claiming.

  • We have come across many cases where DWP staff tell heavily pregnant women and new mothers they should claim income support (IS) rather than JSA. However, a claimant has a right to claim any benefit s/he wishes to (it is then for the DWP to decide whether s/he is entitled on the basis of that claim). Advisers may need to remind the DWP of this and insist that their clients be given a claim form.8
  • Similarly, women getting JSA are often told they must switch to claiming IS in the latter stages of pregnancy. CIS/4144/2008 is useful in setting out that an appeal against a subsequent refusal of IS can also be taken as an appeal against the stopping of JSA. The decision also explains that the making of a claim for IS which is not then awarded is not a ground for superseding and ending JSA entitlement.
  • If such arguments fail and claimants are prevented from claiming JSA, advisers may wish to explore the possibility of financial redress for maladministration.

Other issues

There are many women who will not retain the right to reside throughout their pregnancy and when they have a young baby in the ways set out above.

In these situations it is always important to check whether they may derive a right of residence from someone else. Two possibilities are:

  • if they have a husband, or registered civil partner, even one from whom they are separated, they will have whatever right to reside their husband/civil partner has (CIS/2431/2006). Where the woman is unaware of whether her estranged husband/civil partner is working etc., it is arguable that the DWP must find this out for itself rather than simply refuse the claim;9
  • women aged under 21, or those who are dependent on their parents, have whatever right of residence their parents have.

It is also important to check whether a woman has acquired a permanent right of residence through being legally resident here for a five-year period.10

As in all cases involving the right to reside, it is important to check whether any contributory benefits are available: in the sort of cases discussed here maternity allowance may be available.

Conclusion

Thus far, all attempts to argue that a woman should retain her right of residence as a worker or self-employed person when unable to work due to pregnancy or the need to care for a baby have failed. There may well be further challenges on this point. CPAG is interested in taking a case where IS has been refused to a pregnant woman who has previously worked because the DWP say she has no right to reside. If it is correct that neither the Citizenship Directive 2004/38 nor the EC Treaty provide for residence rights in this period this seems to be something that would tend to restrict the free movement of female workers of childbearing age. Until a challenge is successful or these discriminatory rules are changed then pregnant women will need to rely on the sorts of arguments set out above, and given the problems with these may find they have periods of no income during the latter stages of pregnancy.

 


Please be aware that welfare rights law and guidance change frequently. Therefore older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.

  • 1. The right to reside requirement applies not just to the means-tested benefits of IS, income-related ESA, income-based JSA, PC, HB/CTB but also to CTC, CB and health in pregnancy grant.
  • 2. EEA nationals here means nationals of any EEA state or Switzerland, but not Britain or Ireland.
  • 3. Reg s6(1)(b) and (c) and 14(1) Immigration (European Economic Area) Regulations 2006 (SI 2006/1003)
  • 4. A8 nationals are from Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia. A2 are from Romania or Bulgaria.
  • 5. See reg 6(2)(a) I(EEA) Regs 2006 and Art 7(3)(a) Directive 2004/38
  • 6. Regs 14(1)(l) and 55 JSA Regs 1996
  • 7. Reg 14(1)(u)(ii) JSA Regs
  • 8. Reg 4(5) SS(C&P) Regs 1987
  • 9. Kerr v DSDNI [2004] UKHL 23
  • 10. Art 16 Directive 2004/38