Brian Francis Collins v Secretary of State for Work and Pensions.

• Jurisdiction: European Union
• Celex Number: 62002CC0138
• ECLI: ECLI:EU:C:2003:409
• Docket Number: C-138/02
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 10 July 2003

OPINION OF ADVOCATE GENERAL
RUIZ-JARABO COLOMER
delivered on 10 July 2003(1)


Case C-138/02

Brian Francis Collins
v
Secretary of State for Work and Pensions


(Reference for a preliminary ruling from the Social Security Commissioner)

(Freedom of movement for persons – Workers – Jobseeker's allowance – Residence condition – Citizenship of the Union)

1. One of the United Kingdom Social Security Commissioners has referred to the Court of Justice, under Article 234 EC, three questions seeking the interpretation of Regulation (EEC) No 1612/68 (2) and Directive 68/360. (3) Essentially, in issue is whether a citizen of the Union, where he is not considered to be a ‘worker’ within the meaning of Regulation No 1612/68 and does not have a right, pursuant to Directive No 68/360/EEC, to reside in the Member State in which he is seeking work, may rely on any other provision of Community law in order to obtain the income-based jobseeker’s allowance, the granting of which is subject to a condition of habitual residence in the State. I – United Kingdom legislation 2. The jobseeker’s allowance is a social security benefit provided under the Jobseekers Act 1995 (‘the 1995 Act’), which became operative from 7 October 1996. It replaced two previous forms of benefit for unemployed persons: unemployment benefit (a contributory benefit) and income support (a means-tested benefit). There are two routes to entitlement to it: through contribution-based conditions and through income-based conditions. 3. In order to qualify for the benefit, the claimant, in addition to being available for and actively seeking employment, having entered into a jobseeker’s agreement and not engaging in remunerative work, must not have earnings in excess of the applicable amount and his capital must not exceed a specified amount. According to section 4(3) of the 1995 Act, the benefit payable consists of a fixed amount, (4) if the claimant has no income, or otherwise the amount by which that amount exceeds the claimant’s income. Under section l(2)(i), the only condition relating to residence is that the claimant ‘is in Great Britain’. 4. Section 4(5) of the 1995 Act provides for regulations to prescribe how applicable amounts are to be determined. According to the Jobseeker’s Allowance Regulations 1996, the applicable amount for a person from abroad who is a single claimant is nil. The definition for ‘person from abroad’ set out in Regulation 85(4), applicable in the main proceedings, is as follows: ‘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 (5) or a person with a right to reside in the United Kingdom pursuant to Council Directive 68/360/EEC or 73/148/EEC; (6)

...’. II – Facts 5. Mr Collins was born in the United States of America and holds American nationality. He was brought up and studied there, graduating from university in 1980. As part of his studies, he spent one semester in the United Kingdom in 1978. Between 1980 and 1981, during which time he also acquired Irish nationality, he spent approximately 10 months in London doing casual and part-time work. Although it seems he would have preferred remaining longer in the United Kingdom, he returned to his country of origin in 1981 because he was unemployed, had to claim benefits and the economic downturn made it more difficult for him to find work. 6. He stayed in the United States until 1985, in employment. Then he joined the Peace Corps as an aid worker in central Africa for two years. He returned to his native country for six months in 1987 and in 1988 moved to South Africa, where he studied history and worked as a teacher. Upon being refused the right of permanent residence in South Africa, he returned to the United States of America, where he worked for six months part-time in sales and for six months as a history teacher. He then decided to settle in the United Kingdom. In February 1998 he obtained a new Irish passport. 7. He arrived in the United Kingdom on 31 May 1998 travelling on a return air ticket as it was cheaper than a single ticket, bringing his personal possessions with him, with the intention of finding work in the social services sector. On 8 June he claimed jobseeker’s allowance on the ground that he lacked financial resources. Following investigations, including an interview with the claimant on 1 July 1998, the competent authorities refused to grant him the allowance because he was not habitually resident in the United Kingdom. 8. The appeal which he brought before the Leeds social security appeal tribunal was dismissed on the same ground since, in order for habitual residence to be established, residence needs to have continued for an appreciable time. (7) III – The questions referred for a preliminary ruling 9. Mr Collins appealed to the Social Security Commissioner who, before making a decision on the substance of the case, decided to refer the following questions to the Court of Justice for a preliminary ruling:

‘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 68/360/EEC ...?

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 jobseeker’s allowance to a person in the circumstances of the claimant in the present case?’

IV – Community legislation 10. The Social Security Commissioner in the United Kingdom has framed the questions in a general manner and does not seek the interpretation of any specific provision of Community law. In my view, in order to provide an answer, the Court must examine, in particular, the following provisions: Article 10a of Regulation No 1408/71 8 –Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6). Article 10a was introduced by Council Regulation (EEC) No 1247/92 of 30 April 1992 (OJ 1992 L 136, p. 1).

‘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.

...’ Article 7 of Regulation No 1612/68

‘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 he become unemployed, reinstatement or re-employment;

2.

He shall enjoy the same social and tax advantages as national workers.

...’ Article 18 EC

‘1.

Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

...’ V – Procedure before the Court of Justice 11. Written observations were submitted in these proceedings, within the period prescribed by Article 20 of the EC Statute of the Court of Justice, by the claimant in the main proceedings, the German Government, the United Kingdom and the Commission. At the hearing on 17 June 2003, Mr Collins’ representative and the Agents for the United Kingdom and the Commission presented their oral submissions. VI – Arguments put forward 12. Mr Collins claims that, as a person actively seeking employment, he is a ‘worker’ within the scope of Regulation No 1612/68 and he has the right to stay in the United Kingdom pursuant to Directive 68/360. He is also resident in the United Kingdom for the purposes of Regulation No 1408/71, so that the requirement as to residence for a lengthy period in that State in order to be eligible for the abovementioned allowance constitutes discrimination based on nationality, prohibited by Article 39 EC. He also takes the view that Articles 12 EC and 17 EC preclude making it a condition for persons who do not have British nationality, but who are nationals of another Member State and intend to re-establish their links with the United Kingdom, that they be resident for a certain period before becoming eligible to receive a non-contributory benefit such as the jobseeker’s allowance. 13. With regard to the first question, the German Government, the United Kingdom and the Commission acknowledge the claimant’s right, under Article 39 EC, to stay in the United Kingdom for at least six months as a national of a Member State seeking employment. So far as concerns Regulation No 1612/68, a jobseeker falls within the ambit of Part I of Title I rather than Title II, which exclusively concerns persons who are already in...