Saint Prix and the right to reside for pregnant women
Mike Spencer looks at a recent European Court of Justice decision with important findings about the right to reside of women who have given up work due to pregnancy.
In Saint Prix C507-12 (19 June 2014), the European Court of Justice (ECJ) has ruled:
‘a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth retains the status of “‘worker”... provided she returns to work or finds another job within a reasonable period after the birth of her child.’
The judgment ends the anomaly whereby European Union (EU) workers who gave up work because of temporary illness were accepted as having a right to reside whereas women who gave up work because of pregnancy were not (See Bulletin 209: Right to reside - the pregnant pause).
What did the ECJ say?
See the Legal Section of the Welfare Rights Bulletin for the full facts of the case. In summary, Ms Saint Prix was a teaching assistant who gave up work while in the late stages of pregnancy. Eleven weeks before her due date, she applied for income support (IS), but this was refused on the basis that she did not have a right to reside. She appealed and the Supreme Court eventually made a reference to the ECJ. She was represented by CPAG and the AIRE Centre intervened.
Article 7(3) of Directive 2004/38 sets out the circumstances in which a migrant who is no longer in an employment relationship may nevertheless retain the status as a worker. This includes where a person is ‘temporarily unable to work as the result of an illness or accident’, but makes no mention of pregnancy. The UK government argued that, as the Directive was intended to codify the existing law, Article 7(3) contains an exhaustive list of the circumstances when worker status could be retained.
The Court rejected this argument. It noted that the concept of ‘worker’ has always been interpreted broadly, insofar as it defines the scope of a fundamental freedom provided under the Treaty, namely the right of EU nationals to move freely within the territory of other Member States and to stay there for the purposes of seeking employment. EU law guarantees special protection for women in connection with maternity. The Court concluded:
‘In those circumstances it cannot be argued, contrary to what the United Kingdom government contends, that Article 7(3) of Directive 2004/38 lists exhaustively the circumstances in which a migrant worker who is no longer in an employment relationship may nevertheless continue to benefit from that status.’
What didn’t the Court say?
The Court expressly rejected the argument, advanced in the alternative by CPAG on behalf of Ms Saint Prix and by the Advocate General, that pregnancy could be equated with illness and was therefore covered by Article 7(3)(a) of the Directive. It stood by its finding in Webb that pregnancy is not in any way comparable with a pathological condition .
Nor did the Court take up the Advocate General’s invitation to apply the principles set out Brey 1to this case. In Brey, the Court had held that national authorities must undertake an overall assessment of the factual circumstances in each individual case, applying the principle of proportionality, in order to ascertain whether or not the grant of a benefit could place an unreasonable burden on the social assistance system within the meaning of Article 7(1)(b). The Advocate General argued that a woman in Ms Saint Prix’s position cannot automatically be said to be a burden on the social security system simply because she has applied for IS. Given that her problems of subsistence are temporary in character and social assistance is required only for a limited period, she should not automatically lose her right to reside. This would involve the decision maker making a proportionality assessment in each case.
Given its finding that the concept of worker could be extended in this case, the Court evidently felt it did not need to consider the impact of Brey. However, the Supreme Court is likely to consider the effect of Brey in the up-coming case of Mirga.2
What is a ‘reasonable period’ after birth?
The judgment leaves open the question of how long a woman retains the status of worker after giving birth. CPAG argued (on behalf of Ms Saint Prix) that this should be equated with the national rules on when women are exempted from being available for work, which in the UK’s case is the period of eligibility for IS on grounds of pregnancy – ie, 11 weeks before the expected due date and 15 weeks after the birth. The Court went further than this. It said that the national authorities should take into account ‘all the specific circumstances of the case... and the applicable national rules on the duration of maternity leave’. As the duration of statutory maternity leave in the UK is 52 weeks, this leaves open the argument that worker status should extend for longer than the eligibility period for IS.
The Court’s finding that Article 7(3) of the Directive is not an exhaustive list of the circumstances when worker status was retained leaves open the possibility for further extensions in other circumstances.
Pregnant EU nationals refused IS
The judgment is most helpful for European Economic Area national agency workers who are not entitled to maternity leave under the terms of their employment. Where they have to give up work because of the late stages of pregnancy, the judgment means they should still be treated as a worker for the purposes of claiming IS and other benefits. Their housing benefit should also continue during this period.
The ECJ’s judgment has immediate effect. Claimants who have been refused IS in the past or want to backdate their claims may be affected by the anti-test case rules. This provides that the DWP must ignore the effect of the judgment when making decisions concerning periods prior to the date it was given (19 June 2014). However, the anti-test case rules do not apply to a tribunal on appeal. Claimants who are still within the 13-month long stop for appealing should request a mandatory reconsideration and then appeal any refusal.
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