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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Collins v Secretary of State for Work & Pensions [2006] EWCA Civ 376 (04 April 2006) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2006/376.html Cite as: [2006] 1 WLR 2391, [2006] WLR 2391, [2006] EWCA Civ 376, [2006] ICR 1033 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM A SOCIAL SECURITY COMMISSIONER
Strand, London, WC2A 2LL |
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B e f o r e :
VICE PRESIDENT OF THE COURT OF APPEAL (CIVIL DIVISION)
LORD JUSTICE JONATHAN PARKER
and
LORD JUSTICE MAURICE KAY
____________________
BRIAN ![]() ![]() |
Appellant |
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- and - |
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THE ![]() ![]() |
Respondent |
____________________
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Christopher Vajda QC and Josh Holmes (instructed by The Treasury Solicitor) for the Respondent
____________________
Crown Copyright ©
Lord Justice Jonathan Parker :
INTRODUCTION
DOMESTIC LEGISLATION RELATING TO JSA
"6. [JSA] is a social security benefit provided under the Jobseekers Act 1995, operative from 7 October 1996. It is a replacement for unemployment benefit (a contributory benefit) and income support (a means-tested benefit) for the unemployed. There are two routes to entitlement, through contribution-based conditions and through income-based conditions. In the present case, the income-based conditions are those which are relevant, as the claimant had made no contributions that would qualify him for contribution-based JSA. As well as satisfying the conditions of being available for and actively seeking employment, of having entered into a jobseeker's agreement, not being engaged in remunerative work etc, a claimant's income must not exceed the applicable amount and his capital must not exceed a specified amount. These conditions are very similar to those in the income support scheme. The benefit payable is to be the applicable amount, if the claimant has no income, or otherwise the amount by which the applicable amount exceeds the claimant's income (section 4(3)). The only condition related to residence in the Jobseekers Act 1995 is that the claimant "is in Great Britain" (section 1(2)(i)).
7. However, the Act requires regulations to prescribe how applicable amounts are to be determined (section 4(5)). Regulation 85(1) of the Jobseeker's Allowance Regulations 1996 ("the JSA Regulations") provides that in circumstances specified in column (1) of Schedule 5 to the JSA Regulations the applicable amount is to be the amount prescribed in column (2). Paragraph 14(a) of Schedule 5 prescribes an applicable amount of nil for a person from abroad who is a single claimant. In regulation 85(4) an additional definition of "person from abroad" is, as in force at the relevant time:
'a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, but for this purpose, no claimant shall be treated as not habitually resident in the United Kingdom who is
(a) a worker for the purposes of Council Regulation (EEC) No. 1612/68 or (EEC) No. 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No. 68/360/EEC or No. 73/148/EEC; or
(b) a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967; or
(c) a person who has been granted exceptional leave to enter the United Kingdom by an immigration officer within the meaning of the Immigration Act 1971, or to remain in the United Kingdom by theSecretary
of State.'
8. The effect is thus that a claimant who is not habitually resident in the UK or in one of the other prescribed territories cannot qualify for the payment of any income-based JSA. The rule is the same as that prescribed in the case of income support and considered by the [ECJ] in [Robin Swaddlingv
. Adjudication Officer [1999] ECRI-1075]"
THE TRIBUNAL'S DECISION
THE ORDER FOR REFERENCE
"To decide the appeal it is necessary to resolve a question or questions of Community law to which in my judgment the answer is not clearly provided by the Court's jurisprudence. Accordingly, I have referred to the Court the questions set out at the end of this Order."
(1) Is a person in the circumstances of the claimant in the present case a worker for the purposes of Regulation No 1612/68?
(2) If the answer to question (1) is not in the affirmative, does a person in the circumstances of the claimant in the present case have a right to reside in the United Kingdom pursuant to Directive No 68/360?
(3) If the answers to both questions (1) and (2) are not in the affirmative, do any provisions or principles of European Community law require the payment of a social security benefit with conditions of entitlement like those for income-based [JSA] to a person in the circumstances of the claimant in the present case?
THE RELEVANT PROVISIONS OF COMMUNITY LAW
- articles 12(1), 17, 18(1) and 39(2) (formerly articles 6, 8, 8a(1) and 48(2)) of the EC Treaty;
- articles 1, 4 and 8(1) of Directive 68/360;
- articles 2, 5 and 7 of Regulation 1612/68; and
- article 10a of Regulation 1408/71.
(1) The EC Treaty
"Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited."
"1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union
2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby."
"1. Every citizen of the Union shall have the right to move and reside freely within the territory of Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect."
(2) Directive 68/360
"Member States shall, acting as provided in this Directive, abolish restrictions on the movement and residence of nationals of the said States and of members of their familes to whom Regulation (EEC) No 1612/68 applies."
(3) Regulation 1612/68
"Any national of a Member State and any employer pursuing an activity in the territory of a Member State may exchange their applications for and offers of employment, and may conclude and perform contracts of employment in accordance with the provisions in force laid down by law, regulation and administrative action, without any discrimination resulting therefrom."
"A national of a Member State who seeks employment in the territory of another Member State shall receive the same assistance there as that afforded by the employment offices in that State to their own nationals seeking employment."
"1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should be become unemployed, reinstatement or re-employment;
2. He shall enjoy the same social and tax advantages as national workers."
(4) Regulation 1408/71
"1. Notwithstanding the provisions of Article 10 and Title III, persons to whom this Regulation applies shall be granted the special non-contributory cash benefits referred to in Article 4(2a) exclusively in the territory of the Member State in which they reside, in accordance with the legislation of that State, provided that such benefits are listed in Annex IIa. Such benefits shall be granted by and at the expense of the institution of the place of residence."
THE PROCEEDINGS IN THE ECJ
The opinion of the Advocate-General (D Ruiz-Jarabo Colomer)
"(1) A national of a member state who enters the territory of another member state with the intention of seeking paid employment, despite being covered by arts 1 to 6 of Regulation 1612/68, is not a worker for the purposes of arts 7 et seq thereof.
(2) A national of a member state who moves to a member state with the intention of seeking employment has the right to reside within its territory, pursuant to art 39 EC, but Council Directive (EEC) 68/360 (on the abolition of restrictions on movement and residence for workers of member states and their families) does not provide for such a possibility.
(3) Community law as it now stands does not require that an income-based social security benefit, intended for jobseekers, be provided to a citizen of the Union who enters the territory of a member state with the purpose of seeking employment while lacking any connection with the state or link with the domestic employment market."
The ECJ's judgment
"29. In the absence of a sufficiently close connection with the United Kingdom employment market, MrCollins
' position in 1998 must therefore be compared with that of any national of a member state looking for his first job in another member state.
30. In this connection, it is to be remembered that the court's case-law draws a distinction between member state nationals who have not yet entered into an employment relationship in the host member state where they are looking for work and those who are already working in that state or who, having worked there but no longer being in an employment relationship, are nevertheless considered to be workers (see Lairv
Universitδt Hannover Case 39/86 [1988] ECR 3161, paras 32, 33).
31. While member state nationals who move in search for work benefit from the principle of equal treatment only as regards access to employment, those who have already entered the employment market may, on the basis of art 7(2) of Regulation 1612/68, claim the same social and tax advantages as national workers (see in particular, [Centre Public d'Aide Sociale de Courcellesv
. Lebon Case 316/85 [1987] ECR 2811] (para 26) and European Commission
v
Belgium Case C-278/94 [1996] ECR I-4307 (paras 39, 40)).
32. The concept of 'worker' is thus not used in Regulation 1612/68 in a uniform manner. While in Title II of Part I of the regulation this term covers only persons who have already entered the employment market, in other parts of the same regulation the concept of 'worker' must be understood in a broader sense.
33. Accordingly, the answer to the first question must be that a person in the circumstances of the appellant in the main proceedings is not a worker for the purposes of Title II of Part I of Regulation 1612/68. It is, however, for the national court or tribunal to establish whether the term 'worker' as referred to by the national legislation at issue is to be understood in that sense." (My italics)
"45. In MrCollins
' submission, there is no doubt that he is a national of another member state who was lawfully in the United Kingdom and that jobseeker's allowance is within the scope of the Treaty. The result, as the Court held in Grzelczyk
v
Centre Public d'Aide Sociale d'Ottignies-Louvain-la-Neuve Case C-184/99 [2003] All ER (EC) 385, [2001] ECR I-6193, is that the payment of a non-contributory means-tested benefit to a national of a member state other than the host member state cannot be made conditional on the satisfaction of a condition when such a condition is not applied to nationals of the host member state. Mr
Collins
acknowledges that the habitual residence test is applied to United Kingdom nationals as well. However, it is well established that a provision of national law is to be regarded as discriminatory for the purposes of Community law if it is inherently more likely to be satisfied by nationals of the member state concerned.
46. The United Kingdom government and the German government argue that there is no provision or principle of Community law which requires that a benefit such as the jobseeker's allowance be paid to a person in the circumstances of MrCollins
.
47. With regard to the possible existence of indirect discrimination, the United Kingdom government submits that there are relevant objective justifications for not making income-based jobseeker's allowance available to persons in the situation of MrCollins
. Unlike the position in D'Hoop
v
Office National de l'Emploi Case C-224/98 [2003] All ER (EC) 527, [2002] ECR I-6191, the eligibility criteria adopted for the allowance at issue here do not go beyond what is necessary to attain the objective pursued. They represent a proportionate and hence permissible method of ensuring that there is a real link between the claimant and the geographic employment market. In the absence of such criteria, persons who have little or no link with the United Kingdom employment market, as in the case of Mr
Collins
, would then be able to claim that allowance.
48. According to the Commission, it is not disputed that MrCollins
was genuinely seeking work in the United Kingdom during the two months following his arrival in that member state and that he was lawfully resident there in his capacity as a person seeking work. As a citizen of the Union lawfully residing in the United Kingdom, he was clearly entitled to the protection conferred by Article 6 of the Treaty against discrimination on grounds of nationality in any situation falling within the material scope of Community law. That is precisely the case with regard to jobseeker's allowance, which should be considered to be a social advantage within the meaning of art 7(2) of Regulation 1612/68.
49. The Commission also observes that it is clear that the right to stay in another member state to seek work there can be limited to a reasonable period and that MrCollins
' right to rely on arts 6 and 8 of the Treaty in order to claim the allowance, on the same basis as United Kingdom nationals, is therefore similarly restricted to that period of lawful residence.
50. Nonetheless, the Commission submits that a requirement of habitual residence may be indirectly discriminatory because it can be more easily met by nationals of the host member state than by those of other member states. Whilst such a requirement may be justified on objective grounds necessarily intended to avoid 'benefit tourism' and thus the possibility of abuse by work-seekers who are not genuine, the Commission notes that in the case of MrCollins
the genuine nature of the search for work is not in dispute. Indeed, it appears that he has remained continuously employed in the United Kingdom ever since first finding work there shortly after his arrival."
"63. In view of the establishment of citizenship of the Union and the interpretation in the case law of the right to equal treatment enjoyed by citizens of the Union, it is no longer possible to exclude from the scope of art 48(2) of the Treaty - which expresses the fundamental principle of equal treatment, guaranteed by art 6 of the Treaty - a benefit of a financial nature intended to facilitate access to employment in the labour market of a member state.
64. The interpretation of the scope of the principle of equal treatment in relation to access to employment must reflect this development, as compared with the interpretation followed in Lebon's case and in European Commissionv
Belgium Case C-278/94.
65. The 1996 regulations introduce a difference in treatment according to whether the person involved is habitually resident in the United Kingdom. Since that requirement is capable of being met more easily by the state's own nationals, the 1996 Regulations place at a disadvantage member state nationals who have exercised their right of movement in order to seek employment in the territory of another member state (see, to this effect, O'Flynnv
Adjudication Officer Case C-237/94 [1996] All ER (EC) 541, [1996] ECR I-2617 (para 18) and European Commission
v
Italy Case C-388/01 [2003] ECR I-721 (paras 13, 14)).
66. A residence requirement of that kind can be justified only if it is based on objective considerations that are independent of the nationality of the persons concerned and proportionate to the legitimate aim of the national provisions (see Criminal Proceedings against Bickel Case C-274/96 [1998] ECR I-7637 (para 27)).
67. The Court has already held that it is legitimate for the national legislature to wish to ensure that there is a genuine link between an applicant for an allowance in the nature of a social advantage within the meaning of art 7(2) of Regulation 1612/68 and the geographic employment market in question (see, in the context of the grant of tideover allowances to young persons seeking their first job, D'Hoop (para 38)).
68. The jobseeker's allowance introduced by the 1995 Act is a social security benefit which replaced unemployment benefit and income support, and requires in particular the claimant to be available for and actively seeking employment and not to have income exceeding the applicable amount or capital exceeding a specified amount.
69. It may be regarded as legitimate for a member state to grant such an allowance only after it has been possible to establish that a genuine link exists between the person seeking work and the employment market of that state.
70. The existence of such a link may be determined, in particular, by establishing that the person concerned has, for a reasonable period, in fact genuinely sought work in the member state in question.
71. The United Kingdom is thus able to require a connection between persons who claim entitlement to such an allowance and its employment market.
72. However, while a residence requirement is, in principle, appropriate for the purpose of ensuring such a connection, if it is to be proportionate it cannot go beyond what is necessary in order to attain that objective. More specifically, its application by the national authorities must rest on clear criteria known in advance and provision must be made for the possibility of a means of redress of a judicial nature. In any event, if compliance with the requirement demands a period of residence, the period must not exceed what is necessary in order for the national authorities to be able to satisfy themselves that the person concerned is genuinely seeking work in the employment market of the host member state."
"The answer to the third question must therefore be that the right to equal treatment laid down in art [39(2)] of the Treaty, read in conjunction with arts [12] and [17] of the Treaty, does not preclude national legislation which makes entitlement to [JSA] conditional on a residence requirement, in so far as that requirement may be justified on the basis of objective considerations that are independent of the nationality of the persons concerned and proportionate to the legitimate aim of the national provisions."
THE DECISION
i) whether Mr Collins
was a 'worker' within the true meaning of that term in paragraph (a) of regulation 85(4) of the JSA regulations (an issue which the ECJ expressly left to the national courts to determine: see paragraph 33 of its judgment); and
ii) whether the discriminatory effect of the 'habitually resident' condition in regulation 85(4) was "justified on the basis of objective considerations that are independent of the nationality of the persons concerned and proportionate to the legitimate aims of the national provisions" (see paragraph 73 of its judgment).
"21. The basis of Mr Drabble's submission was that the effect of paragraph 72 was that the sole legitimate question to which a habitual residence test could be relevant, and the sole legitimate aim of the national provisions by reference to which justification could be considered, was whether the national authorities were satisfied that the claimant was genuinely seeking work. At the oral hearing he refined his consequential submissions into three alternative propositions:
(1) the answer to that sole legitimate question was in fact provided by the satisfaction of the other conditions of entitlement to JSA, so that there was no justifiable role left for a habitual residence test;
(2) if (1) was not accepted, the habitual residence test did not satisfy the conditions set out in paragraph 72, in particular the condition that the application of a residence test must rest on clear criteria known in advance, so that it could not be justified; and
(3) if the application of a habitual residence test was not precluded by (1) or (2), it could only be applied in a way that acknowledged the overall context of paragraph 72, by disregarding factors that did not help to answer the sole legitimate question, ie was the claimant's search for work genuine.
22. Miss Sharpston argued against Mr Drabble's propositions (1) and (2). On proposition (1), she submitted that the ECJ had known of the conditions of entitlement to income-based JSA in terms of actively seeking work and availability for work (see paragraph 68 of the judgment). It could not possibly have talked in paragraph 72 in terms of a residence requirement being in principle appropriate and have sent the issue of justification back to the national tribunal if the true principle to be derived from its judgment was that there was no justifiable role for the habitual residence test within income-based JSA in cases subject to the EC principle of non-discrimination on grounds of nationality. On proposition (2), she submitted that there were clear criteria (derived from case-law and administrative guidance identifying relevant factors) and the possibility of a means of redress of a judicial nature in the right of appeal to an appeal tribunal and beyond. On proposition (3), she accepted that in circumstances where the habitual residence test fell foul of the non-discrimination principle identified in paragraph 65 of the ECJ's judgment and had to be justified, it had to be applied in a way that allowed it be used as a means of satisfying the relevant authority that the claimant was genuinely seeking work and that the relevance of various factors would be coloured by that context. However, Miss Sharpston had also taken issue with the basis of Mr Drabble's submissions. She submitted that the words of paragraph 72 of the ECJ's judgment had to be looked at in the context of the preceding paragraphs, from which it was clear that a test could be justified although it involved a requirement that residence continue for a period during which the claimant was genuinely seeking work."
"31. Then comes the significant leap in paragraph 72. The first and most important statement of principle is that a residence requirement is in principle appropriate for the purpose of ensuring such a connection, ie a connection of up to but not beyond the degree allowable in accordance with paragraphs 67 and 69. That is significant in endorsing the potential efficacy of a residence requirement in a context like that ofCollins
. But it also necessarily entails that a residence test can be allowed, within limits, to act as a proxy for the test of whether or not there is a genuine or real link to the geographical employment market. It allows a different test than simply asking "is there a genuine link". As Advocate General Geelhoed put it in paragraph 61 of his Opinion in [R (on the application of Dany Bidar)
v
. London Borough of Ealing and
Secretary
of State for Education and Skills [2005] ECR1-2119; [2005] QB 812]:
"Obviously a Member State must for reasons of legal certainty and transparency lay down formal criteria for determining eligibility for maintenance assistance [the social benefit in issue there] and to ensure that such assistance is provided to persons proving to have a genuine connection with the national educational system and national society. ... It may be inferred from [the conditions laid down inCollins
] that the Court recognises that a residence requirement may be imposed as a starting point of the assessment of the situation of an individual applicant. The fact that it states that the period must not exceed what is necessary for the purpose of enabling the national authorities to satisfy themselves that a person is genuinely seeking work in the domestic employment market indicates, however, that other factors must be able to be taken into account in that assessment. This is further borne out by its consideration in D'Hoop that the single condition applied by the national authorities in that case was too general and exclusive and that no account could be taken of other representative factors. Ultimately, it would appear to me that if the result of the application of a residence requirement is to exclude a person, who can demonstrate a genuine link with the national education system or society, from the enjoyment of maintenance assistance, the result would be contrary to the principle of proportionality."
32. I leave aside for the moment what was said in paragraph 72 of the ECJ's judgment about proportionality, clear criteria and means of redress. The crucial sentence is then this:
"In any event, if compliance with the [residence] requirement demands a period of residence, the period must not exceed what is necessary in order for the national authorities to be able to satisfy themselves that the person concerned is genuinely seeking work in the employment market of the host Member State."
33. First, I have no doubt that that sentence does not have the effect that the sole legitimate question to be asked is whether the claimant was genuinely seeking work on any particular day, in the sense merely of taking active and appropriate steps to seek suitable work. The relevant legitimate aim in making the JSA legislation, as identified by the ECJ, is the wish to ensure that there is a genuine link (or in other words a real link) between the claimant and the UK employment market. That is the aim in relation to which proportionality must be tested.
34. Then, paragraph 69 of the judgment spells out that in pursuance of that aim it is legitimate to award benefit only after it has been possible to establish that such a link exists. And it is plainly accepted in paragraphs 69 and 70 that it is legitimate only to accept that there is such a link at any particular date if there has previously been some sufficiently concrete expression of a connection with the UK employment market. It also seems to me that the notion of a genuine link or a real link carries with it a sense that the link has to have some concrete expression. In that context, I conclude that the pivotal part of the final sentence of paragraph 72 is the reference to what period of residence is necessary for the national authorities to be able to satisfy themselves that the claimant is genuinely seeking work. To be consistent with what has been said earlier, it must be legitimate for the national authorities to say that they are not able to satisfy themselves about the genuineness of a search for work until a proper search has continued for some period. A person may actually take steps to search for work on a particular day and actually have on that day an intention to continue to search diligently for suitable vacancies, but national authorities can legitimately say that they have not been satisfied that the search is genuine until they have seen that the search has been sustained, and in a sufficiently diligent and well-directed form, for some period. The condition of proportionality laid down by the final sentence of paragraph 72 is thus that a residence requirement, in principle appropriate, cannot be applied to deny entitlement to benefit beyond the date at which the relevant national authority has become satisfied of the genuineness of the claimant's search for work."
"35. Accordingly, Mr Drabble's first proposition in paragraph 21 above cannot stand. It is not the case that any claimant for income-based JSA who satisfies the conditions of availability for and actively seeking work on a day must be accepted as having satisfied the national authorities about a genuine link with the UK employment market and must (if within the protection of the EC principle of non-discrimination on the ground of nationality) be awarded benefit. The UK authorities may not as at that day be satisfied the claimant has a genuine or real link with the UK employment and, if so, can legitimately deny benefit if it is considered that the claimant is not habitually resident in the UK. On that basis, there is no difficulty in seeing why the ECJ did not itself express the conclusion that the use of the habitual residence test in income-based JSA could not be objectively justified and left that issue to the national tribunal."
"It would be extraordinary if the ECJ inCollins
had intended to indicate that a test involving criteria of a similar kind to those laid down in Swaddling would not meet the conditions of proportionality, for it not to have spelled out that conclusion in the clearest possible terms."
"44. I look at this first as a general proposition before considering the submissions about the application of the habitual residence test to the findings of fact already made in the present case. Here, there appeared to be a measure of agreement between Mr Drabble and Mrs Sharpston at the oral hearing, as noted in paragraph 22 above. However, the agreement was only on the surface. There was some agreement that factors relating particularly to links to the UK employment market had to be given primacy, but, in the light of my conclusions in paragraphs 32 to 34 above, that does not have the dramatic consequences argued for by Mr Drabble. He submitted that, as my findings of fact indicated that the claimant was genuinely seeking work at the date of claim, he had to be found to be habitually resident in the UK from that date. But that only follows from asking the wrong question. However, I prefer a slightly different approach.
45. In my judgment, the condition in the final sentence of paragraph 72 of the ECJ's judgment should not be given effect by taking certain factors out of the equation when operating either the domestic UK or the Community habitual residence test, on the ground that they are not relevant to the genuineness of a link to the UK employment market. First, I have some difficulty in working out exactly what factors would be excluded, when it is a link to a particular geographical employment market that is in issue. Second, and more important, it seems to me that there is a risk of making the test itself rather incoherent if too many versions of it are to be operated in different legal circumstances. I would prefer to operate the condition in a somewhat more literal way, in line with Advocate General Geelhoed's approach in his Opinion in Bidar (see paragraph 31 above). When he talks there of taking other factors into account in an assessment, in addition to a residence requirement, he is talking of the assessment of the result ultimately reached on the entitlements of the person concerned. In the present context, the appropriate habitual residence test should be applied in the ordinary way. But, if the result on any day is against the claimant, there should then be a check against the answer to the question "has the point been reached on that day that the relevant national authority has become satisfied of the genuineness of the claimant's search for work (as explained in paragraph 34 above)?" If the answer to that question is yes, then the result of the ordinary application of the habitual residence test cannot be applied against a claimant within the scope of the Community principle of non-discrimination on the ground of nationality. Similarly, if for some other reason such a claimant has a genuine or real link to the UK employment market, that result cannot be applied (although it is hard to envisage how such a link could exist if the claimant is not currently genuinely seeking work). If the answer is no, then the result can be applied.
46. I add as a small footnote that theSecretary
of State rightly did not seek to argue that the habitual test does not require a "period of residence", merely that a claimant's residence has attained the particular quality of habitualness. There is no doubt that the principle adopted by the ECJ in the final sentence of paragraph 72 of its judgment is to be applied to any rule that can in substance take into account of length of residence, of whatever quality, as a factor."
"47. The result of my rejection of Mr Drabble's propositions (1) and (2) is that I hold that the application of the residence requirement embodied in the habitual residence test in the JSA legislation and in Article 10a of Regulation 1408/71 is, subject to the proviso mentioned below, justified by objective considerations independent of the nationality of the claimant and proportionate to the legitimate aim in the making of the JSA legislation. The requirement meets the conditions as to proportionality set out in paragraph 72 of the ECJ's judgment in relation to the legitimate aim of establishing that a real or genuine link exists between a claimant and the UK employment market, such as by being satisfied of the genuineness of the claimant's search for work in that employment market. The proviso is that for the application of the requirement for any day to be proportionate in any particular case, the question mentioned at the end of paragraph 45 above must be answered in the negative."
MR COLLINS
' GROUNDS OF APPEAL
THE RESPONDENT'S NOTICE
THE ARGUMENTS ON THIS APPEAL
The arguments on behalf of Mr Collins
The arguments on behalf of the Secretary
of State
"54. Such a difference in treatment can be justified only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the legitimate aim of the national provisions (see Criminal proceedings against Bickel (Case C-274/96; [1998] ECR I-7637, 7658, para 27, [D'Hoop], para 36, and Garcia Avellov
. Belgian State (Case C-148/02; [2003] ECR I-11613,11646, para 31).
55. According to the United Kingdom Government, it is legitimate for a member state to ensure that the contribution made by parents or students through taxation is or will be sufficient to justify the provision of subsidised loans. It is also legitimate to require a genuine link between the student claiming assistance to cover his maintenance costs and the employment market of the host member state.
56. On this point, it must be observed that, although the member states must, in the organisation and application of their social assistance systems, show a certain degree of financial solidarity with nationals of other member states (see [Grzelczyk], para 44), it is permissible for a member state to ensure that the grant of assistance to cover the maintenance costs of students from other member states does not become an unreasonable burden which could have consequences for the overall level of assistance which may be granted by that state.
57. In the case of assistance covering the maintenance costs of students, it is thus legitimate for a member state to grant such assistance only to students who have demonstrated a certain degree of integration into the society of that state.
58. In this context, a member state cannot, however, require the students concerned to establish a link with its employment market. Since the knowledge acquired by a student in the course of his higher education does not in general assign him to a particular geographical employment market, the situation of a student who applies for assistance to cover his maintenance costs is not comparable to that of an applicant for a tideover allowance granted to young persons seeking their first job or for a jobseeker's allowance: see, in that regard, D'Hoop, paragraph 38, andCollins v
.
Secretary
of State for Work and Pensions (Case C-138/02); [2005] 1 QB 145, 181, paragraph 67, respectively.
59. On the other hand, the existence of a certain degree of integration may be regarded as established by a finding that the student in question has resided in the host member state for a certain length of time."
CONCLUSIONS
The 'genuine link' requirement
"The tideover allowance provided for by Belgian legislation aims to facilitate for young people the transition from education to the employment market. In such a context it is legitimate for the national legislature to wish to ensure that there is a real link between the applicant for that allowance and the geographic employment market concerned."
"However, a single condition concerning the place where the diploma of completion of secondary education was obtained is too general and exclusive in nature. It unduly favours an element which is not necessarily representative of the real and effective degree of connection between the applicant for the tideover allowance and the geographic employment market, to the exclusion of all other representative elements. It therefore goes beyond what is necessary to attain the objective pursued."
" may be regarded as established by a finding that the student in question has resided in the host member state for a certain length of time".
'habitually resident'
"It is a question of fact to be decided on the date [when] the determination has to be made on the circumstances of each case whether and when that habitual residence has been established. Bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, seeking to bring family, 'durable ties' with the country of residence or intended residence, and many other factors have to be taken into account.
The requisite period is not a fixed period. It may be longer where there are doubts. It may be short There may indeed be special cases where the person concerned is not coming here for the first time, but is resuming an habitual residence previously had ."
The Commissioner's proviso
RESULT
Lord Justice Maurice Kay:
Lord Justice Brooke Vice President of the Court of Appeal (Civil Division):