EU Rights Clinic helps respected university professor to continue teaching in UK after being told to leave by Home Office

The EU Rights Clinic has successfully helped an award-winning senior associate professor in psychology to obtain a residence card despite the Home Office rejecting his first application and telling him he should make arrangements to leave the UK or face deportation.

The Home Office had refused our client Michael J Proulx’s first application for permanent residence on the basis that he had not proved that his EU wife was exercising free movement rights in the UK, despite having lived in the UK since 2008, during which time he conducted ground-breaking research at the University of Bath into sensory substitution that benefits the blind.

The Home Office did not accept that Michael’s wife was a worker even though she lectures part-time at the University of Bristol. One of the reasons cited for the refusal by the Home Office was that Michael and his wife did not have private healthcare insurance in place and were therefore considered “a burden on the UK’s social assistance system”.  This requirement was imposed despite the fact that our client and his wife have jointly contributed several tens of thousands of pounds in income tax and national insurance contributions during their working lives in the UK and have never claimed benefits. Michael had believed that, as a UK tax-payer, his family should be free to rely on the National Health Service (NHS) for their healthcare needs.

However, the Home Office’s current policy means that it does not accept reliance on the NHS as evidence of having comprehensive sickness insurance, which is a requirement that must be met by EU citizens who live but do not work in the UK. The UK authorities currently require EU citizens who do not work to have private healthcare insurance, even though they are entitled to free treatment on the NHS as a matter of UK law. Nor have the UK authorities put in place any process that would enable EU citizens to make voluntary healthcare surcharge contributions if they wanted to.

The UK is currently the subject of an investigation by the European Commission for breaching the EU rules on the free movement of persons as regards its restrictive policy on healthcare entitlements. Regrettably, the UK courts have so far sided with the Home Office on this issue and ruled the policy is justified.

Michael, who was a torchbearer at the 2012 London Paralympics, says:  “I still cannot quite believe what happened to us. The Home Office appear to have their priorities all mixed up. We are very grateful that the EU Rights Clinic was able to intervene on our behalf.”

Michael was assisted in this case by caseworkers Amelia Stoenescu and Ben Slaugh, students at the University of Kent, under the supervision of qualified lawyers. Anthony Valcke, solicitor for the EU Rights Clinic commented: “This case is a perfect example of the lunacy of the Home Office’s policy that requires non-working EU citizens to have private healthcare in place even if their working spouse contributes to the UK’s public finances. The policy is designed to prevent EU citizens from becoming an unreasonable burden on the UK’s finances. Yet when an EU citizen is supported by a working spouse who is not from the EU, the working spouse’s contributions to the Treasury are completely ignored.”

Unfortunately, despite having received a 5-year residence card for the UK, Michael is still facing problems whenever he returns from business trips abroad. He has been detained on three separate occasions at the UK border. It appears that the UK Border Force’s computers only flag up his first refusal without showing that his right to reside has now been recognised. The EU Rights Clinic will be writing to the Home Secretary to raise the matter.

New referrals to the EU Court of Justice on Directive 2004/38 from Austria, the Netherlands, Sweden and the UK

The Court of Justice has registered a number of requests for a preliminary ruling on the interpretation of Directive 2004/38 on the rights of EU citizens and their family members to reside in the EU.

  • Do Female Workers Lose Their Status as Workers When They Leave Work to Look After Their Children?

In Case C-507/12 Jessy St Prix (2013) OJ C 26/32, the UK Supreme Court has referred the issue of whether a woman who temporarily gives up work to take care of her new born child loses the status of “worker” under Article 7(3) of Directive 2004/38.

Jessy St Prix is a 27 year old French teacher. She came to the UK in 2006 and worked for eleven months as a teaching assistant. She then enrolled on a postgraduate teacher’s course in September 2007. After starting the course, she became pregnant. Her child’s birth was expected in early June 2008. She withdrew from her postgraduate course in February 2008 and started working for an employment agency working in nursery schools. In March 2008, when she was almost six months pregnant, the work became too strenuous for her so she stopped this work and looked for part-time work. As none was available, she sought assistance from the state and lodged a claim for income support from the UK authorities. This was refused on the basis that she did not have a right to reside because she was no longer working and she did not retain the status of “worker” since she voluntarily chose to leave the jobs market in the late stages of her pregnancy. Her child was born prematurely a few months later and, as she had no income, she resumed full-time work three months after giving birth. She appealed against the UK’s decision to refuse her claim for social welfare benefits before the UK courts in late 2008. The case has since progressed all the way to the UK Supreme Court which in October 2012 asked the EU Court of Justice in Luxembourg for a preliminary ruling on the interpretation of the concept of “worker” under EU law.

If the Court of Justice follows it previous case law that has given a wide meaning to the concept of “worker” under Article 45 TFEU (see for example Case C-413/01 Ninni-Orasche), we should expect the Court to extend the notion of worker to female workers who – like Jessy St Prix – voluntarily leave the job market to take care of their new born children.

The original reference from the Supreme Court in Jessy Saint Prix v Secretary of State for Work and Pensions [2012] UKSC 49 is available here.

  • Does the Right to Return Home under the Singh and Eind Cases Extend to Recipients of Services?

The Dutch Raad van State has referred two cases on the interpretation of the right of EU citizens to live with their family members in their home country on the basis of having exercised free movement rights in another EU country.

In Case C-457/12 Minister voor Immigratie, Integratie en Asiel and O & B(2013) OJ C 26/19, the applicants are non-EU family members of EU citizens who have returned to the Netherlands after spending time in Belgium. However, they did not spend a continuous period of time working in another EU country as was the case in Cases C-370/90 Singh and C-291/05 Eind. Instead, applicant B only made regular visits over a period of 16 months to stay with his Dutch partner in Belgium, staying at week-ends and sometimes until the Monday morning. His Dutch partner did not work in Belgium and was only the recipient of services provided in that member state. The Dutch authorities refused B’s application for a residence card as the family member of an EU citizen. The Dutch Ministry of the Interior considered that there was no effective exercise of the right to free movement, since only a continuous period of residence lasting over three months qualifies. Moreover between the time that the Dutch partner returned to the Netherlands and he joined her there, applicant B went to stay for over two years in his native Morocco, during which time the partners married. The Dutch authorities therefore also considered that he has lost any right he might have had to return with his Dutch partner (now wife) to Belgium.

For his part, applicant O claims a right to return home after spending holidays in Spain with his Dutch wife. Although he was issued a residence card by the Spanish authorities, the Dutch courts found that couple were unable to provide evidence of longer stays in Spain. Nonetheless, the referring Court does indicate that O’s wife was only the recipient of services during her holidays in Spain. Again, the Dutch authorities refused to issue O a residence card and considered that there was no effective exercise of the right to free movement, since holidays are not sufficient for this purpose.

It will be interesting to see how the Court answers this tricky reference as it could go either way. On the one hand, the Court is unlikely to hold that a stay of less than three months in another EU country does not consist in the exercise of free movement since it is specifically foreseen by Article 6 of Directive 2004/38. On the other hand, the Court could consider that the right of an EU citizen to return home with his family members only relates to “residence” of over three months rather than a “stay” of less than three months, although no such distinction is made in the Directive. It should be recalled that the rationale behind Singh and Eind was that an EU citizen would  be dissuaded from moving to another EU member state in the first place if he did not have the certainty of knowing that his closest family members would have a right to return with him to his home country and reside there under the same conditions as those that apply to his family when they reside with him in another EU member state. The Court may consider that this dissuasive effect of refusing a right of residence to family members is significantly stronger in respect of residence of over three months rather than short stays of less than three months. In B’s case it is also possible that the Luxembourg judges may choose to side-step the issue altogether by applying Article 16(4) of the Directive by analogy, according to which the right to permanent residence in another EU country is lost after any absence exceeding two years.

With the specific reference to the applicants being recipients of services, the Dutch Court also appears to be inviting the Court of Justice to draw an analogy with Case C-60/00 Carpenter, in which where the Court ruled that EU law granted the right to the Philippine wife of a British provider of cross-border services to live with her husband in the UK.  However, contrary to Mr Carpenter, the applicants in these cases are merely the family members of recipients of services.

For those wanting to read the original reference from the Raad van State in Minister voor Immigratie, Integratie en Asiel and O & B, it is available here.

  •  Does Carpenter Extend to Cross-Border Employees?

In Case C-456/12 Minister voor Immigratie, Integratie en Asiel and S& G (2013) OJ C 26/19, the applicants are non-EU family members of Dutch citizens claiming a right to live in the Netherlands on the basis that their EU relative works in another country as a cross-border worker. Applicant G is the non-EU wife of a Dutch national who works for a Belgian company. He commutes between the Netherlands and Belgium everyday (also known as a “frontier worker”). Applicant S is the mother of a Dutch citizen who works as an employee  for a Dutch company. His work is undertaken mostly in the Netherlands but he also undertakes work in other neighbouring countries at least one day of every working week. In both cases, the Dutch authorities refused to issue a residence card to the applicants on the basis that they were not the family member of an EU citizen who provided cross-border services falling within the scope of the court’s ruling in Case C-60/00 Carpenter, since their EU relatives did not work as self-employed persons but instead worked as employees.

These two cases bear a stronger resemblance to Case C-60/00 Carpenter. In that case the Court had ruled that the EU rules on freedom of establishment provide a right of residence in the UK to the spouse of a British provider of cross-border services.  However, contrary to Mr Carpenter, the EU relatives of the applicants in these cases are employees of companies, not self-employed persons.

The original reference from the Raad van State in  Minister voor Immigratie, Integratie en Asiel and S & G can be found here.

  • Does a special non-contributory benefit under Regulation 883/2004 consist in social assistance within the meaning of Directive 2004/38?

The  Austrian Supreme Court has asked the Luxembourg Court has been asked to explain the concept of “social assistance” under Directive 2004/38. In Case C-140/12 Peter Brey (2012) OJ C 165/12, the CJEU has been asked to confirm whether “Ausgleichszulage” (compensation supplement) is a benefit that falls within the concept of social assistance under Directive 2004/38. In this case, Mr and Mrs Brey who are German nationals decided to permanently relocate to Austria in 2011 because they felt marginalized and mistreated in Germany as a result of their Russian ancestry. Following his move to Austria, Mr Brey continued to receive an invalidity pension of € 862.74 and care allowance of € 225 from the German social security institutions. However, his wife’s income guarantee was withdrawn on account of having moved to Austria. As a result of a reduction in the couple’s income, Mr Brey sought to claim Austrian compensation supplement, which provides a minimum income guarantee to recipients of an old-age pension on a low income. This claim was rejected on the basis that Mr Brey did not benefit from a right of residence in Austria because his income was below the amount needed to be considered as sufficient resources under Article 7(1)(b) of Directive 2004/38.   However, Mr Brey considers that the  payment of Austrian compensation supplement cannot be made conditional upon having a right to reside in Austria. He argues that the supplement is a special non-contributory benefit listed in Annex X of EU Regulation 883/2004 on the coordination of social security and that it is therefore payable to all persons who are “habitually resident” in Austria pursuant to Article 70 of the Regulation.

This case provide a good illustration of a catch 22 situation in which many pensioners of meagre resources who live abroad and depend on support from their country of residence are now finding themselves. Thus Mr Brey cannot claim the Austrian compensatory supplement unless he can demonstrate he has a right to reside; but Mr Brey can only demonstrate a right of residence in Austria if he can show he has sufficient resources, which he would only be able to do if he is granted this compensatory supplement…

The original referral from the Austrian Oberste Gerichtshof can be found here.

*Update* The Advocate General has now issued his opinion in the case.

  • Can Member States require that children over 21 years old demonstrate they have taken all necessary measures not to remain dependent on their EU parents? 

In Case C-423/12 Flora May Reyes (2012) OJ C 355/11, the Court of Justice has again been asked for clarification on the concept of dependence. As in the earlier case dealing with dependence (Case C-1/05 Jia) the reference comes from the Swedish courts. This time the Court is being asked whether an adult child of an EU citizen is required to demonstrate that he has tried to obtain employment or has tried to apply for assistance from his country of origin in order to be considered as the dependent child of an EU citizen having a right to reside under Article 2(2)(c) of the Directive.

New referrals to the EU Court of Justice on Directive 2004/38 from Austria, the Netherlands, Sweden and the UK first appeared on the EU Rights Clinic blog.

Belgium adopts measures to combat abuse of EU social security rules

On 27 December 2012 the Belgian Parliament passed a budgetary law that contains provisions allowing the Belgian authorities to take action to combat abuse of the rules on applicable law under EU Regulation 883/2004 and related measures on the coordination of social security (Articles 22 -25 of the Framework Law of 27 December 2012, Belgian State Gazette 31.12.12, p. 88860).

Article 23 defines such abuse as consisting in “the application of the European coordinating regulations to the situation of an employed or self-employed worker where the conditions laid down by the regulations and as further specified in the Practical Guide [on the posting of workers] or in the decisions of the Administrative Commission are not fulfilled, in order to circumvent Belgian social security law that should have applied to such a situation had the provisions of the regulations and administrative been correctly observed”.

Article 24 provides that, in the event that a court, social security institution or labour inspector makes a finding of abuse, Belgian social security law will apply to the employed or self-employed worker concerned if Belgian law should have been applicable in accordance with the EU regulations.  Belgian law will apply retrospectively from the first day on which the conditions for its application were met subject to the limitations periods contained in Article 42(1) of the law of 27 June 1969 amending the Decree Law of 28 December 1944 relating to social security of employees and Article 16 of Royal Decree No 38 of 27 July 1967 relating to social security of the self-employed. Article 25 provides that the burden of proving abuse rests on the social security institution or labour inspector making the allegation.

It appears that this law is a reaction to several interconnected issues highlighted in a recent video produced by the European Parliament. Firstly, the Belgian authorities feel that there is too much undetected abuse of the EU rules on applicable law, as highlighted by the CJEU’s recent ruling in case C-115/11 Format. In that case, the Court ruled against the “abuse” of the EU rules on applicable law by a Polish construction company. Such practices are reportedly widespread in the construction industry. Secondly, the Belgian authorities consider that they are not obtaining the level of active cooperation which is required for the effective fight against abuse. They feel that some national authorities turn a blind eye to such “abuses” and are just content to receive social security contributions from the workers concerned. Thirdly, the Belgian authorities also feel that the mechanisms contained in the EU rules on coordination are too slow and cumbersome. Indeed, the Belgian authorities complain that by the time they do receive a response to their request for assistance from other national institutions, it may already be too late to take action against the “abuse”. For example, in the case of the posting of workers, a request for assistance may take several months to be processed, by which time the work has already been completed and the concerned workers have already left Belgium.

Although the point of view of the Belgian authorities may be understandable, it is questionable whether this law is compatible with the EU rules on the coordination of social security. The law makes no reference to the mechanisms for cooperation and the exchange of information between the national social security institutions under Article 76 of Regulation 883/2004 or Decision H5 of the Administrative Commission which is designed to enhance cooperation to combat fraud (2010) OJ C 149/5. It also undermines the procedures for resolving disagreements between institutions relating to the applicable law under Article 11 of Regulation 987/2009 or those relating to doubts over the validity or accuracy of social security forms issued by institutions under Article 5 of the same regulation.  The Court has previously confirmed that Form E101 (replaced by Form A1) is binding on the institution which receives it until such a time as it is revoked by the issuing institution (Case C-178/97 Banks and Case C-2/05 Herbosch Kiere). Where there is doubt as to the accuracy of social security forms, the issuing institution is under a duty to investigate and, if the conditions for its issue are no longer met, under an obligation to revoke the form (Case C-202/97 Fitzwilliam).

As a result, in the event the Belgian law is the subject of a legal challenge and the issue if referred to Luxembourg, it is unlikely that the law will withstand scrutiny by the EU Court of Justice.