Personal Immigration

Pregnant women retain ‘worker’ status for 12 months under EU law

In SSWP v SSF and others [2015] UKUT 0502 (AAC) (10 September 2015) the Administrative Appeals Chamber of the Upper Tribunal gave effect to the decision of the Court of Justice of the European Union in Saint Prix v Secretary of State for Work and Pensions [2015] 1 CMLR 5.

The Upper Tribunal held that the ‘reasonable period’ for retaining worker status for women in the UK who give up work or looking for work as a result of the of the physical constraints of the late stages of pregnancy and the aftermath of childbirth is 12 months.

Decision in Saint Prix

Ms Saint Prix was employed in the UK before giving up work less than three months before the birth of her child because of the physical constraints of the late stages of pregnancy and the immediate aftermath of childbirth.  She remained in the UK and went back to work 3 months after giving birth.

The Court held that the fact that she was not available for work during those few months did not mean that she lost her status of being a ‘worker’ within the meaning of Article 45 TFEU, provided she returned to work or finds another job within a reasonable period after childbirth.

The Court of Justice noted that a Union citizen would otherwise be deterred from exercising her free movement rights with the EEA if as a result of pregnancy she lost her status as a worker by giving up work for a short period.

In addition, this was consistent with the provision in Article 16(3) of Directive 2004/38 which states for the purposes of calculating 5 years continuous residence for permanent residence, continuity of residence was not affected by an absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth.

In relation to determining the ‘reasonable period’ it was held that the national court should take into account all the circumstances of a case and the applicable rules on the duration of maternity leave in accordance with Article 8 of Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding.

Issues considered by the Upper Tribunal

The Upper Tribunal considered the following issues:

  1. The nature of the Saint Prix right: in particular is it a right to be assessed prospectively or retrospectively
  2. To whom are Saint Prix rights available
  3. When does a Saint Prix right start
  4. How long does the “reasonable period” last
  5. Whether a woman has to return to work (or find another job) or will a return to seeking work suffice
  6. Can a Saint Prix right contribute to the period of time necessary to acquire the right of permanent residence under Article 16 of Directive 2004/38

Conclusions reached by the Upper Tribunal

The nature of the Saint Prix right: in particular is it a right to be assessed prospectively or retrospectively?

The Tribunal held that a worker will retain worker status until there is reason to suppose otherwise stating that where a person faces an avoidable break in circumstances which are recognised by EU law, the question is whether there is something which “in any way call[s] into question [a person’s] subsequent participation in working life. The reasonable period gives the person a fair opportunity to demonstrate that there is no such thing”. A St Prix right must be assessed prospectively and retrospectively. Therefore a woman applying for a social welfare benefit at the beginning of this period will be able to do so if she has an intention to return to work or look for work at the end of that period.

To whom are Saint Prix rights available?

The Tribunal held that the rights are available to those who have exercised the right of freedom of movement for workers and have been employed in the host member state.  The Saint Prix rights are also conferred on those who have retained worker status pursuant to Article 7(3).

When does a Saint Prix right start?

The Tribunal concluded that a Saint Prix right begins when the reason for giving up work or seeking work is the physical constraints of the late stages of pregnancy and the aftermath [or immediate aftermath] of childbirth – although this will be fact specific, depending on the woman and unborn child and the job that the woman was doing.  Ordinarily this would be 11 weeks prior to the expected date of birth.

How long does the “reasonable period” last?

The Upper Tribunal determined that the “reasonable period” for the purposes of a Saint Prix right is to be determined taking account of the 52 week period of OML (Ordinary Maternity Leave) and AML (Additional Maternity Leave) and of the circumstances of the particular case. As a matter of practice, it was held that this would therefore be 12 months.

Whether a woman has to return to work (or find another job) or will a return to seeking work suffice?

The Tribunal held that ‘returns to work or finds another job’ extends to a situation where a person retained work status under Article 7(3)(b) or (c) of the Directive at the start of the period and returned to work-seeking within the meaning of those provisions.

Can a Saint Prix right contribute to the period of time necessary to acquire the right of permanent residence under Article 16 of Directive 2004/38?

A Saint Prix right can contribute to the period of time required to acquire permanent residence under Article 16.

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