Where now for the GPOW?

Carlos Hagi considers Upper Tribunal decisions on the application of the ‘genuine prospects of work’ test to EEA jobseekers

This article was originally published in the November/December 2016 issue of Adviser magazine and was correct at the date of publishing.

Although the GPOW has been law since 1st January 2014, the first decision, that of Judge Agnew(1), was published on 9 June this year and the second, that of Judge Ward(2), on 22 August. The response to Judge Ward’s decision has been muted, but advisers need to pay particular heed to this more detailed decision when now advising on or preparing challenges to the GPOW.

The GPOW test means that an EEA national claimant of JSA, after the prescribed period, will lose their right to reside as a jobseeker unless they can provide ‘compelling evidence’ that they are continuing to seek employment and that they have ‘a genuine chance of being engaged’. 2014 saw three amendments to the Immigration (EEA) Regulations 2006(3). Since the third amendment to the GPOW on 10th November 2014, the prescribed period has been a cumulative one of 91 days.

As will be seen, the requirement for EEA jobseekers to continue to seek employment and have a genuine chance of being engaged was not a new change to the law. What was new and undefined was the requirement to provide ‘compelling evidence’ of this, together with a testing of the evidence through a GPOW interview towards the end of the prescribed period. Another new development was the DWP programme of testing all EEA recipients of JSA from before 1st January 2014, which began in May 2015.

The DWP also issued guidance in June 2014 on the GPOW test(4). The restrictive nature of this guidance was commented on by Judge Ward in his decision. We understand that the Child Poverty Action Group (CPAG), who represented three of the claimants in that case, have now written to the DWP requesting that the guidance be changed.

As Judge Ward points out in paragraph 1 of his decision ‘The phrase ‘genuine prospects of work’ does not appear in legislation or caselaw. The relevant test is correctly expressed as ‘a genuine chance of being engaged’’. Whilst a jobseeker’s chances of being engaged have always been relevant to the definition of a ‘jobseeker’ under the 2006 Regulations, the point has arisen more prominently following the three amendments made to the 2006 Regulations in 2014. These also introduced the requirement for ‘compelling evidence’ to be provided. As Judge Ward notes ‘That expression is not defined.’

To consider the Upper Tribunal decisions in context, the rights of EEA jobseekers both in European and domestic law need to be considered.

The rights of jobseekers under European law

The best expression of the rights of jobseekers under European law is the decision of the European Court of Justice (ECJ) in Antonissen C-292/89.This was an immigration case from 1991 where the UK Government was seeking to deport Mr Antonissen, a Belgian national, under a UK immigration rule because after six months admission to the UK he had not yet found employment. A referral on the validity of the UK rule was made to the ECJ. The key part of the ruling is at paragraph 21;

‘In the absence of a Community provision prescribing the period during which Community nationals seeking employment in a Member State may stay there, a period of six months, such as that as laid down in the national legislation at issue in the main proceedings, does not appear in principle to be insufficient to enable the persons concerned to apprise themselves, in the host Member State, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged and, therefore, does not jeopardize the effectiveness of the principle of free movement. However, if after the expiry of that period the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged, he cannot be required to leave the territory of the host Member State.’

The key point about Antonissen, a case which was central to both of the Upper Tribunal decisions, is that European law (at that time) did not set a time limit on the rights of residence of jobseekers. It still does not as we shall see below. Therefore it was up to Member States to set their own time limits if they wished, provided that they gave a jobseeker a right to continue to stay if they were continuing to seek employment and had a genuine chance of being engaged. This is broadly the GPOW test without the requirement to provide compelling evidence or a time limit on any extension beyond the period.

This right is ultimately derived from what is now Article 45(3) of the Treaty on the Functioning of the European Union (the ‘Lisbon’ Treaty). In the Citizenship Directive 2004/38/EC, which came some years after the case of Antonissen, the rights of jobseekers are not explicitly stated. Under Article 14(4)(b)if the migrant entered the host Member State in order to seek employment they may not be expelled for as long as they can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged. This is the only direct reference to the case of Antonissen and to jobseekers in the whole of the Directive.

As Judge Ward says in his decision;

‘It is clear from the legislative history…that the Directive intended to implement the Court’s decision in Antonissen. The way in which it was done, however, was not by adding jobseekers to the list of other categories of people who enjoy a right to reside beyond three months (which can be found in Article 7) but by the somewhat haphazard-seeming series of carve-outs set out above.’ (paragraph 20).

The rights of jobseekers under domestic law prior to 1st January 2014

The UK implemented the Citizenship Directive in the Immigration (EEA) Regulations 2006, in which a more direct approach was adopted to the rights of jobseekers. Regulation 6(1)(a) includes a jobseeker as a ‘qualified person’ who thus has a right to reside. Moreover Regulation 6(4) directly adopts what can be called the Antonissen definition of a jobseeker as ‘a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged.’

Prior to 2014 it was possible for an EEA jobseeker to stay on JSA for an unlimited period, provided they continued to satisfy their jobseeker’s agreement. The UK Government took the view that this was sufficient to meet the requirements of Regulation 6(4). Guidance was issued to confirm that five years as a jobseeker would achieve a permanent right of residence(5).

Referring to Regulation 6(4), Judge Ward says;

‘It is not in dispute that, in this form, regulation 6(4) was consistent with Antonissen. It is convenient to note here that the United Kingdom has taken the view that regulation 6(4) applies just as much to those who, while being in the UK, have become unemployed after working and to certain other categories of jobseeker who have previously enjoyed a right to reside on a different basis as it does to those who have entered the UK to seek work but have not yet found it. The position is a considered one: (see Shabani v SSHD [2013] UKUT 315 at [10]) and has since been reflected in the GPOW Regulations, thus no point is taken in the present cases based on whether any of the claimants had or had not been previously employed in the UK.’

Thus, former workers who had been employed for more than a year were to be treated the same as first-time jobseekers or those who had previously had a right to reside other than as a jobseeker, in terms of being subject to a GPOW. This was the effect of the changes to domestic law outlined below. The only difference between the two groups is the timing of when the GPOW applies.

The cumulative effect of the changes in 2014

Following the last amendment on 10th November 2014, newly arrived EEA jobseekers are not entitled to JSA for the first three months. Thereafter an EEA jobseeker is only entitled for a cumulative period of 91 days and then subject to the GPOW test of providing ‘compelling evidence’ that they are continuing to seek employment and have a ‘genuine chance’ of being engaged. This also applies to EEA jobseekers who may have been in the UK for many years but have lost a previous right to reside - for example a former worker who becomes a student then re-enters the labour market at the end of their studies. Or a young adult first-time jobseeker who has been here for many years with her parents who cannot derive a right to reside through them. The latter was the case for the appellant ‘AM’ in Judge Ward’s decision who came to the UK in 2007 with her parents. Indeed, all of the other appellants had been in the UK from before 2014. Right to reside is a fluid concept - it can be gained and lost, apart in general from a permanent right to reside.

The DWP also issued guidance in June 2014 on the GPOW test in Memo DMG 15/14. This requires reliable evidence that a claimant has a genuine offer of a specific job which will be genuine and effective work provided that the job is due to start within 3 months; or where the claimant can provide proof during the relevant period that a change of circumstance has given them genuine prospects of employment and as a result they are awaiting the outcome of job interviews, in which case JSA entitlement is extended for two months. It is hardly surprising, given the above, that only 10% of GPOW interviews lead to an extension of a JSA award(6).

It is against this background that the new Upper Tribunal decisions need to be considered.

The decision of Judge Agnew

The first decision in KS v SSWP is a decision without oral argument. The background facts are vague - the appellant KS was clearly not a newly arrived EEA job seeker as one of the grounds of appeal was that he had a permanent right to reside. The Judge when considering the GPOW test confined himself to whether the requirement for ‘compelling evidence’ in the GPOW test was compatible with European law, whether that applied to a worker or a jobseeker. He did not deal with the issue of a genuine chance of being engaged, as did Judge Ward. Judge Agnew states;

‘I interpret ‘compelling evidence’ to be no more than the requirement for evidence to establish on a balance of probabilities that the claimant is continuing to seek employment and that he has genuine chances of being engaged. I read ‘compelling’ to mean no more than in the context of the circumstances that have arisen i.e. that the claimant has not been able to obtain employment during the relevant period that the onus is on the claimant and having regard to the circumstances of the case the judge considering the matter is entitled to decide the weight and quality of evidence required to establish that the claimant is continuing to seek employment and has genuine chances of being engaged.’

In the Judge’s opinion this was consistent with Antonissen and Article 14(4)(b) of the Citizenship Directive. Moreover if ‘compelling evidence’ meant a higher standard of proof may be set by a Member State then this was wrong. If the intention of using ‘compelling evidence’ was to apply a higher or different standard of proof after six months, then this was contrary to European law as set out in the Directive and Antonissen, and the Judge rejected it. The appeal was therefore allowed and remitted for rehearing as the Judge was not satisfied that the First-tier Tribunal did not apply a higher standard of evidence, as suggested by the DWP’s submission.

The decision of Judge Ward

SSWP v MB is a decision involving four appellants. The Judge heard oral argument from CPAG for three of the appellants (MB, AM and VA) and from Bolton CAB for AB. Judge Agnew’s decision was heard without specialist representation. Judge Ward’s decision runs to 38 pages, compared to 5 for that of Judge Agnew. Judge Ward also noted that his case was a lead case, behind which a significant number of others were stayed. It is fair to say that Judge Ward’s decision is more considered than that of Judge Agnew. Also the latter did not rule on the meaning of ‘a genuine chance of being engaged’ whereas Judge Ward discusses the issue in depth.

Judge Ward reviews the rights of jobseekers under EU law, particularly the case of Antonissen. He resists the DWP’s submission to provide a context to the GPOW about the right of free movement being not unconditional, in that the exercise of the right of residence for citizens of the Union can be subordinated to the legitimate interests of the Member States, including the ‘protection of the public finances’. He also makes it clear that he is considering the application of the GPOW test to ‘Antonissen jobseekers’, rather than those with retained worker status as the latter issue is not raised in these appeals.

A genuine chance of being engaged?

Judge Ward deals first with the requirement to have a genuine chance of being engaged. One proves a chance by proving the facts from which it may be inferred or demonstrated that a chance exists. What constitutes a ‘genuine’ chance in this context has never been the subject of a ruling. Having noted that the responsibility of a Member State for jobseekers from other Member States is clearly not intended to be open-ended, this leads to a key part of the ruling at paragraph 42;

‘It seems to me that what is contemplated are chances that, as well as being founded on something objective, offer real prospects of success in obtaining work…It is a significantly higher level than the ‘not hopeless’ suggested by the skeleton arguments for the claimants.’

The chance has to be more than marginal and has to be a chance of being engaged in work that is ‘genuine and effective’. The latter is of course the general European test for achieving worker status. A ‘genuine chance of being engaged’ is not something that can only be satisfied if one can point to a particular job (paragraph 45). This appears to be a reference to the restrictive DWP guidance, on which the Judge comments later.

Also, the Judge rejects the submission of the DWP that whether the test is fulfilled has to be looked at strictly by reference to a person’s qualifications and experience at the date when the question is being assessed by the DWP. This would operate as a barrier to free movement - one obvious example being the worker from abroad who, though otherwise readily employable, lacks sufficient competence in the language of the host Member State and takes steps following arrival to obtain a qualification in it. What is being looked at for the GPOW is a ‘chance’, something which by its nature necessitates a degree of looking forward (paragraph 47).

The issue of qualifications leads to another key part of Judge Ward’s ruling at paragraph 48, which refers to the remitted decision in Antonissen and the observation by Popplewell J that the ‘genuine chance’ has to be of something coming to fruition within a reasonable period of time. What is a ‘reasonable time’ will fall to be determined bearing in mind the observation of the Court of Justice (in Antonissen) that ‘a period of six months, such as that laid down in the national legislation at issue in the main proceedings, does not appear in principle to be insufficient to enable the persons concerned to apprise themselves, in the host Member State, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged.’ Given that the test was applied at six months (the Judge was considering the situation prior to the amendments on 10th November 2014), Judge Ward says ‘while a ‘reasonable period’ may vary from case to case, it is unlikely that it will extend to a prolonged period for further qualifications to be obtained, bearing in mind that the person will have already had 6 months in which to pursue their job search.’ (paragraph 48)

Although the Judge agrees (as he is bound to) that there is no time limit as such on the rights of an Antonissen jobseeker, this leads to what is perhaps the crucial part of his decision at paragraph 51;

‘If the Court says, as it does, that ‘a period of six months does not appear in principle to be insufficient’ to carry out the steps which the Court saw as comprised within the job search which Article 45 requires, that is in my view something which a national court or tribunal has to take into account. It is not a trump card given the qualified terms in which the Court expressed itself, but it is in my view certainly a material consideration. It is one which invites, indeed in my view requires, the enquiry of a claimant:

‘Given that you have had six months of unsuccessful job seeking, a period appearing to the Court of Justice to be in principle not insufficient to take the steps which Article 45 requires you to be allowed to take, on what basis do you say you nevertheless have a genuine chance of being engaged?’

For these reasons a tribunal will need to take a period of 6 months (or indeed longer) of unsuccessful jobseeking into account, along with other factors, in assessing whether a person did indeed have ‘genuine chances’ as at the date that it required to be looked at and a failure to do so will in my view amount to an error of law.’

The requirement to provide compelling evidence

Judge Ward rejects the argument that the requirement is contrary to European law. Genuine chances of being engaged falls to be decided under the civil standard of proof. The GPOW cannot raise the bar for what constitutes a genuine chance (or chances) of being engaged higher than it falls to be set in accordance with Antonissen. In the Judge’s ruling this is ‘chances that are founded on something objective and offer real prospects of success in obtaining genuine and effective work within a reasonable period.’ (paragraph 57).

This conclusion is, ‘at least broadly, consistent’ with that of Judge Agnew. However Judge Ward adds that complying with a jobseeker’s agreement or claimant commitment cannot be relied upon alone to establish the genuine chances of being engaged test (paragraph 113), though it may establish that the claimant is continuing to seek employment.

Applying his analysis of the law to the individual cases, Judge Ward allowed the DWP’s appeals against the First-tier Tribunals’ rulings that MB, AB and AM satisfied the GPOW. He remade the decisions in MB and AB such that they failed the GPOW and remitted AM for rehearing. The Judge allowed VA’s appeal against the First-tier Tribunal’s ruling that he failed the GPOW and remitted that for rehearing. It is recommended that advisers read his consideration of the evidence in these cases.

DWP Guidance

Judge Ward noted that he was not being required to undertake a judicial review of the Guidance. However, the following comments were made;

‘When deciding an appeal, the First-tier Tribunal should bear in mind that the Guidance to decision-makers is no less and no more than that. In particular, tribunals should be alive to the risk that, because the Guidance is framed in the limited way in which it is, GPOW interviews may have been conducted, and/or the Secretary of State’s submissions to the tribunal written, by reference to a restricted palette of issues.’ (paragraph 61)

Applying the GPOW after the rulings

Advisors should now bear in mind the following when advising or considering challenges to the GPOW test:

• What is a genuine chance of being employed should be interpreted as per Judge Ward’s findings at paragraph 57 - ’chances that are founded on something objective and offer real prospects of success in obtaining genuine and effective work within a reasonable period.’
• A previous period of unsuccessful job seeking should be taken into account when assessing the above, along with other factors. Newly arrived jobseekers will have the full six month period, albeit the first three months will be without JSA. For others there may be scope to argue that three months unsuccessful jobseeking should not be given as much weight as other factors as Judge Ward’s decision was based on six months.
• Whether training or taking qualifications could count as a genuine chance of being employed depends on a reasonable period of time to do so. Given that the Judge was dealing with a six month period, there may be scope for arguing that three months is too short to obtain new qualifications or to take action to improve ‘real prospects of success’.
• The requirement to provide ‘compelling evidence’ of continuing to seek employment is incompatible with European Law, if it implies a ‘step change’ in the evidence that needs to be provided when the GPOW is applied. There is no requirement to apply a higher or different standard of proof to the evidence in a GPOW.
• Complying with a jobseeker’s agreement or claimant commitment on its own will not satisfy the GPOW.
• Satisfying the test will require a frank appraisal of why efforts so far have failed as well as asking what steps could the claimant now take, or is taking, that could offer real prospects of success in the near future. It involves both looking back and looking forward.
• DWP guidance on compelling evidence is not an accurate statement of the law.
• None of the rulings deal with the issue of former workers. Under Article 7(3)(b) of Directive 2004/38 someone who has worked for more than a year retains worker status without any time limit provided they are registered as a jobseeker. In SSWP v MM (IS) [2015] UKUT 128 (AAC) Judge White said this is ‘open-ended though not forever more.’ Under Article 7(3)© someone who has worked for less than a year retains worker status for ‘no less than six months’. The GPOW amendments change this to ‘a maximum of six months’.

Perhaps the last word should go to the appellant representatives. Mary Shone of Bolton CAB, who represented AB;

‘It is a step in the right direction. It doesn’t require that an individual has a job offer but is a real assessment of the likelihood that they will find work within a reasonable time frame, based on all the facts of their case. There may still be disagreements between claimants and the DWP both at decision level and in the tribunals as to quite what constitutes this ‘chance’ given the analysis required of an unknown future.’

Martin Williams of CPAG;

‘Whilst SSWP v MB does not go as far as CPAG would have liked in explicitly declaring that the residence regulations contravene EU law in requiring compelling evidence of a genuine chance of obtaining work after a fixed period, the judgment should still be of assistance to EEA migrant jobseekers. Tribunals will have to look not just at chances on the day of the decision under appeal but also about how those chances might change within a reasonable time of the decision (opening the way for them to take account of cases where claimants actually got work before the appeal hearing).’

Postscript

The DWP has amended guidance on the GPOW following SSWP v MB (JSA) (and linked cases) [2016] UKUT 0372 (AAC). The updated guidance is at DMG Vol.2 Chapter 7 Part 3 Paragraphs 073096 to 073100; https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/626637/dmgch0703.pdf

In a subsequent decision (7) dated 9th March 2017 Judge Ward decided that the fact that a claimant obtained a job after a negative GPOW decision did not preclude a Tribunal from taking it into account when looking again at the decision. Inferences can be drawn from events that occur after a decision about circumstances obtaining up to the date of the decision ( see R(DLA) 2/01 and 3/01 ).

Judge Ward said at Para.11;

‘In conclusion, I observe that the principle that subsequent job search outcomes may be relevant to whether, as at the decision date, there was a genuine chance of being engaged cuts both ways. A tribunal would in general equally be able to take into account, with other factors, a period of post-decision lack of success.’

Carlos Hagi works for the Citizens Advice Welfare Expert Advice Team.

End notes

• (1) KS v SSWP [2016] UKUT 0269 (AAC)
• (2) SSWP v MB (JSA) (and linked cases) [2016] UKUT 0372 (AAC)
• (3) Immigration(European Economic Area)(Amendment)(№2) Regulations 2013(SI.2013/3032):Immigration(European Economic Area)(Amendment)Regulations2014(SI.2014/1451)and Immigration (European Economic Area)(Amendment)(№3) Regulations 2014 (SI.2014/2761)
• (4) Memo DMG 15/14
• (5) DMG Memo 16/15 now in DMG Vol 2 Ch 7 Part 3 Para 073427
• (6) Analysis of EEA migrants’ access to income-related benefits measures https://www.gov.uk/government/statistics/analysis-of-eea-migrants-access-to-income-related-benefits-measures
• (7) OS v SSWP (JSA) [2017] UKUT 107 (AAC)

This article was updated on 24 July 2017