The September 2015 Upper Tribunal judgment in SSWP v SFF has established that female EU citizens retain 'worker' status for 52 weeks when temporarily unable to work for pregnancy and maternity-related reasons if they have exercised their free movement rights to migrate to the United Kingdom.

The case involved three linked appeals relating to claims for income support, housing benefit and council tax benefit by female EU nationals who stopped working due to 'maternity leave'. Interestingly, the women were not taking maternity leave from employment with a specific employer, but had simply stopped working due to their maternity status. By virtue of this decision, they continue to be lawfully resident in the United Kingdom for up to 52 weeks and will be able to access the full range of social security benefits, including income support and housing benefit.

The free movement of workers is a fundamental principle of EU law, as is the right of women to equal treatment in the labour market. SSWP analysed and applied the earlier case of Jessy-St Prix v Secretary of State for Work and Pensions, in which the European Court of Justice held that the right to free movement must be interpreted as meaning that a woman who gives up work or gives up seeking work because of the later stages of pregnancy and childbirth retains her worker status, provided that she returns to work or finds another job within a reasonable period. This retained worker status is the so-called 'St Prix right'.

SSWP is interesting on a number of levels. It not only extends the St Prix right and clarifies existing free movement of worker principles, but also establishes the following points:

  • In St Prix the 'reasonable period' within which the woman must return to work or find another job was held to be 26 weeks. SSWP extended this to 52 weeks, subject to individual circumstances. This will have significant ramifications when deployed in immigration cases by applicants and their families wishing to maintain a legal right of residence under the Immigration (European Economic Area) Regulations 2006.
  • The nature of the St Prix right can be prospective as well as retrospective. Therefore, a woman applying for a social welfare benefit at the outset need not prove that she will – or that she did – return to work or find another job within a reasonable period after the birth of the child. It is enough for her to have the intention to do so.
  • A woman who had already retained worker status (as a former worker who was job seeking) before she became pregnant may use the St Prix right and go on to become a jobseeker who retains worker status once more.
  • The St Prix period counts towards the five years of residence needed to acquire a permanent right of residence.

For further information on this topic please contact Ben Sheldrick at Magrath LLP by telephone (+44 20 7495 3003) or email (ben.sheldrick@magrath.co.uk). The Magrath LLP website can be accessed at www.magrath.co.uk.

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