Martin Williams considers the implications of a recent Upper Tribunal case on the correct approach to determining whether a European Economic Area (EEA) migrant has a right of residence as a jobseeker under what is widely referred to as the ‘GPOW’ test.
The government has increasingly sought to restrictively define which EEA migrants could count as having a right of residence on the basis of the fact they were looking for work in the UK: these attempted redefinitions of who has a jobseeker right of residence have resulted in what is known as the ‘GPOW requirement’ and have been in place in some form since 1 January 2014.
The Immigration (European Economic Area Allowance) Regulations 2006 (SI No.1003) (‘the residence regulations’) were amended to provide that a claimant who had been exercising a residence right as a jobseeker for a certain period of time (initially six months, but from 10 November 2014 only 91 days) would lose that status if s/he was unable to provide ‘compelling evidence’, after the expiry of that time period, that s/he had a genuine chance of obtaining employment. This is known as the ‘genuine prospect of work’ test, or ‘GPOW’.
Previous bulletin articles in Welfare Rights Bulletin 238 and 243 have set out how these rules work (the amendments also sought to limit the time for which a person could retain her/his status as a worker when involuntarily unemployed).
Arguing GPOW after SSWP v MB (JSA)
In SSWP v MB (JSA) (and linked cases)  UKUT 372 (AAC) (see p11 for full details), the Upper Tribunal considered the requirement in regulation 6(7) of the residence regulations that a person would not have a right to reside as a jobseeker after six months unless s/he could provide ‘compelling evidence’ of a ‘genuine chance’ of being engaged. All four of the linked cases considered related to decisions made before the time period after which compelling evidence was required was reduced to 91 days (paragraph 28 of SSWP v MB).
While SSWP v MB does not go as far as CPAG would have liked in explicitly declaring that the residence regulations contravene European Union (EU) law in requiring compelling evidence of a genuine chance of obtaining work after a fixed period, the judgment should still be of assistance to EEA migrant jobseekers. This is because the judgment holds that:
- a person will have a right of residence as a jobseeker if s/he meets what is the un-changed EU law test for this (the definition set down by the European Court of Justice in Case C-292/89 Antonissen) – ie, that s/he can provide evidence that s/he is seeking work and has a genuine chance of being engaged (paragraph 49);
- the requirement for ‘compelling evidence’ in the residence regulations after a six-month period is no more than a means of making explicit that, if a person has not managed to obtain work within that period, then this fact has to be taken into account when weighing up whether the person still has a genuine chance of getting a job (paragraphs 51 to 57).
What all that means is that tribunals hearing appeals in which claimants argue they continue to have a right of residence as jobseekers should not regard the ‘compelling evidence’ requirement as anything more than a reminder that they must take account of the length of time a claimant has unsuccessfully been looking for work when deciding whether s/he continues to have a genuine chance of getting a job. This should mean representatives prepare their clients to explain as clearly as possible why their past failures in obtaining work may not provide a useful indication of what will happen in the future – eg, as they are now better at English, they have widened their job search, etc.
The judgment also attempts to put some flesh on the bones of what it means to have a ‘genuine chance’ of getting a job.
- In terms of how good a chance must be to count as ‘genuine’, Judge Ward holds that the chance must be ‘founded on something objective [which] offers real prospects of success in obtaining work’. He goes on to state that this is a chance that is at a significantly higher level than a ‘not hopeless’ one (paragraph 42).
- Furthermore, when assessing whether a claimant has a chance of obtaining work, regard needs to be had to her/his chance of getting that work ‘within a reasonable time’ (paragraphs 46– 48). What that means is one is looking forwards – if it is likely that within a reasonable time in the future the claimant’s situation will change (eg, as s/he will complete a course, gaining a qualification that will increase the chances of getting a job), then that can be taken into account.
Finally, the judgment also makes clear that the DWP guidance (paragraphs 073099 and 073100) in instructing decision makers that a genuine chance will only exist where the claimant has an offer of work due to start within the next three months, or s/he has had a change of circumstances such that her/his prospects of employment have increased and s/he is awaiting the outcome of job offers, is overly restrictive (paragraphs 45 and 61). This means tribunals should not limit themselves to considering whether a claimant meets the DWP guidance and should remember that the narrow focus of the guidance might have meant a claimant has not been alerted to the need to raise other issues which might bear on her/his chances of getting a job.
The clear implication of the judgment is that the Decision Maker’s Guide is overly narrow in defining what counts as evidence of a genuine chance of being engaged. CPAG is hoping that the guidance will be changed to reflect what is said in the judgment. However, if it is not changed and decision makers continue to make decisions based on it, then that may give rise to further litigation which attempts to force the guidance to be rewritten and decisions to be taken based on the correct approach.
Finally, tribunals will have to look not just at chances on the day of the decision under appeal but also at how those chances might change within a reasonable time of the decision (opening the way for them to take account of cases where claimants actually got work before the appeal hearing).
The court in Antonissen had said, in commenting on the UK measure under consideration in that case, that ‘a period of six months does not appear in principle to be insufficient’ to take steps to get a job. That may raise interesting issues in cases where the GPOW assessment is applied by a decision maker after 91 days – ie, three months. Judge Ward holds that, ‘If the Court says, as it does, that “a period of six months does not appear in principle to be insufficient” to carry out the steps which the Court saw as comprised within the job search which Article 45 requires, that is in my view something which a national court or tribunal has to take into account.’ He goes on to say the way in which it is to be taken into account is simply by weighing as a factor the past six months of a failed job search when one comes to think about what the future chances are. That being the case, where a claimant has had less than six months of job search before the GPOW assessment is applied, it could be argued that a failure to find work within 91 days was not a reliable indicator at all regarding whether one had a reasonable chance of getting a job. What the court said about six months being a not inappropriate time can presumably be taken into account as a factor for the claimant in such a case.
Note: however, the government argues that the rules do still provide a six-month jobseeking residence right, as a claimant will have had three months’ residence under the rules for an ‘initial right of residence’ in Article 6 of Directive 2004/38 before becoming a jobseeker. That will clearly not be the situation in all cases – a claimant may not have started looking for work as soon as s/he arrived or may have been in the UK with some other right of residence before commencing her/his job search.
Relevance of domestic rules
An issue not fully explored in the judgment is the relevance of a decision that a claimant has 'reasonable prospects of securing employment’ made under regulation 10 of the Jobseeker’s Allowance Regulations 1996, where a claimant places certain limitations on her/his availability to work. It was argued for the claimants that, where such a decision had been made by an expert labour market decision maker, then this was strong evidence of their having a genuine chance of finding work.
Although one of the claimants, MB, had specified a pattern of availability for employment that should have meant a decision maker had to decide whether she was available for work (under regulation 7(2) of the Jobseeker's Allowance Regulations), the Secretary of State explained in evidence that he had not done so in this case. Although it is not recorded in the judgment, counsel for the Secretary of State maintained that, where there was a pattern of availability specified that was at least 40 hours a week during day time, that is never regarded as requiring that a decision maker has to determine whether a claimant has a reasonable prospect of obtaining employment. This issue may arise in a future case where it is clear there has been a regulation 10 decision.
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