The Habitual Residence Test in UK Law: Impact on Pregnant Women and Domestic Violence Survivors Dublin 1 March 2012

Objectives of This Session 1. Identify challenges pregnant women and survivors of domestic violence often face when attempting to demonstrate that they have a ‘right to reside’ in the UK under EU law. 2. Identify possible solutions to these challenges based on EU law. 3. Increase awareness of the impact of facially-neutral provisions of EU law and national implementing legislation on women.

Topics We Will Cover The habitual residence test in UK law: What is it? How the habitual residence test affects domestic violence survivors Special challenges pregnant women face in showing that they have a ‘right to reside’ under EU law Legal strategies for helping pregnant women and domestic violence survivors facing problems related to the habitual residence test.

The Test Not a person from abroad ‘Actual’ habitual residence ‘Right to reside’ Not a person from abroad The problem will almost always be the right-to-reside test.

Domestic Violence and Pregnancy: Related Phenomena The British Journal of Obstetrics and Gynaecology estimates that one in six pregnant women suffers domestic violence. Approximately 30% of domestic violence in the UK begins or worsens during pregnancy. The AIRE Centre has observed a strong nexus between pregnancy, domestic violence and homelessness among clients who have sought our advice.

Domestic Violence

Domestic Violence: What Is It?

The Domestic Violence Cycle As benefits advisers, the AIRE Centre usually works with survivors who have already left their partners and therefore escaped this cycle. However, it is important for anyone working with domestic violence survivors to understand the pattern of abuse.

Talking to Clients About Domestic Violence For both cultural and psychological reasons, some clients may not realise that things an abuser has done constitute domestic violence. Examples of questions an adviser can ask to start a discussion about these things include: Has your spouse/partner ever done anything to you that made you uncomfortable or put you in pain? (E.g. pushing, pulling hair, burning, hitting, twisting arm, exposure to hot/cold temperatures) Has your spouse/partner ever made you do anything sexually that you didn’t want to do? Has your spouse/partner ever threatened you? Have they ever done anything to intimidate you, e.g. smashing or throwing things? Does your spouse/partner say things that embarrass you or make you feel bad about yourself? Does your spouse/partner let you have your own money? Does your spouse/partner let you visit and talk to your family and friends? Does your spouse/partner follow you or monitor what you do? Does your spouse/partner hurt or threaten to hurt your children, or threaten to take them away? Does your spouse/partner mistreat children, family members or animals in order to frighten you or make you feel bad?

Domestic Violence and EU Free Movement Law: The Myths Abusive EEA nationals often lead victims to believe that: The victim’s right to reside in the UK is dependent on maintaining the relationship with the abusive partner. No other family relationships count. If the abusive partner leaves the UK, the victim will lose her right to live here and will be removed. If the victim divorces the abusive partner or terminates the civil partnership, she will automatically lose her right to live and work here. Photo: Salil Biswas http://www.treklens.com/gallery/Asia/India/photo90395.htm

Facts: Non-EEA Family Members of EEA Nationals Under Directive 2004/38, non-EEA national family members of EEA nationals are entitled to live, work and claim benefits in the host Member State as long as the EEA national is exercising treaty rights there. Family members include spouses, civil partners, children and stepchildren under 21, older children and stepchildren who are dependent, and dependent relatives in the ascending line. Under ECJ case law, a marriage lasts until there is a final divorce decree. A civil partnership lasts until it is legally terminated. In certain circumstances, non-EEA family members can retain their residence rights after divorce or the end of the civil partnership. After five years, non-EEA family members can acquire permanent residence.

Article 12(1) of Directive 2004/38 Facts: Retaining a Right of Residence If the EEA Citizen Leaves the Host Member State: EEA Nationals Article 12(1) of Directive 2004/38 ‘The Union citizen's death or departure from the host Member State shall not affect the right of residence of his/her family members who are nationals of a Member State.’ This means that an EEA national family member will have his/her own right to reside if s/he begins to exercise treaty rights, e.g. by working or becoming self-employed. Problems frequently arise, however, for domestic violence survivors with childcare responsibilities, a lack of economic resources or housing, or medical or psychological problems resulting from the abuse (e.g. drug abuse problems). Additionally, abusers will often deliberately undermine a survivor’s efforts to find or keep employment (e.g. by calling the workplace frequently).

Facts: Retaining a Right of Residence If the EEA Citizen Leaves the Host Member State: Non-EEA Nationals Article 12(3) of Directive 2004/38: ‘The Union citizen's departure from the host Member State or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies.’ Ibrahim (European citizenship) (ECJ 2010): ‘The children of a national of a Member State who works or has worked in the host Member State and the parent who is their primary carer can claim a right of residence in the latter State.’ A non-EEA Ibrahim parent is not required to have comprehensive sickness insurance or sufficient resources to prevent them from becoming a burden on the UK social assistance system.

Facts: Retaining a Right of Residence After a Divorce Article 13 of Directive 2004/38 provides that the spouse of an EEA national exercising treaty rights can retain a right to reside in the UK following a divorce, annulment or termination of civil a partnership if…

… The spouse/partner is an EEA national and is exercising her own treaty rights, or begins to do so. … Prior to the initiation of the divorce or annulment proceedings or the termination of the civil partnership, the marriage or partnership has lasted at least three years, including at least one year in the host Member State. … The spouses/partners agree, or the court orders, that the non-EEA parent will have custody of the couple’s children. … The retention of residence rights is ‘warranted by particularly difficult circumstances’, including domestic violence that occurred during the marriage/partnership. … Under some circumstances, when the non-EEA spouse/partner has a right of access to a minor child. Non-EEA nationals fulfil the conditions for qualifying as a worker, self-employed person or self-sufficient person. This can be problematic for domestic violence survivors.

Challenge: When the Abuser is the Only Source of EU Rights Case Study #1 Marie is a Senegalese national who married a French national in 2010. In May 2011, her husband came to the UK to work, and she joined him in June. Since her arrival, she has been self-employed part-time as a cleaner. In December, she fled the marital household due to severe physical abuse. She and her husband are now separated but not divorced. They have no children. Her husband has refused to provide her with any of his payslips or other documentation that would show he is working, and has threatened to harm her if she contacts his employer. She has no other family members in the UK, and her husband kept all of the money she earned through her self-employment. She is now homeless and would like to claim benefits.

Challenge: Abusive Partners in Prison Case Study #2 Anna is a Thai national married to a German national. The couple came to the UK in June 2011, and the husband began working. Throughout the marriage, the husband committed violent acts against Anna. In late 2011, the husband beat Anna with an iron bar, was arrested and was ultimately sentenced to a prison term. While he is in prison in the UK, does Anna have a right to reside there? This issue remains unsettled. UK tribunal jurisprudence suggests, without establishing, that the answer is no. Meanwhile, CJEU jurisprudence concerning Turkish nationals suggests that the answer may be yes.

Challenge: Primary Carers of Young Children Abusive partners often refuse to allow their victims to have any money or other resources. This means many domestic violence survivors with young children feel compelled to stay with their abusers because they cannot pay for childcare if they leave and try to take up work. In the UK, local authorities may then threaten to take the child away from the home where the abuse is occurring, or they may threaten to take the child away from an EEA victim who leaves the home but cannot become economically active.

Challenge: Chen Parents Under the ECJ’s ruling in Zhu and Chen, self-sufficient EEA national children are entitled to be joined by their primary carers. If a domestic violence survivor has a child who is an EEA national but is too young to be enrolled in compulsory education, she will not qualify as an Ibrahim parent, but she may still have a right to live in the host Member State as a Chen parent if the child is self-sufficient. In the UK, Chen parents do not have a right to work.

Pregnancy

Why are we talking about pregnancy today: On-going litigation in the JS case decided by the Court of Appeal in July 2011. AIRE Centre experience with pregnant EEA nationals/non EEA partners of EEA nationals who encounter difficulties in receiving social security benefits. The main difficulty is to meet the requirements of the ‘right to reside test’ when they apply for social security benefits during or right after pregnancy.

Article 7 (3) Directive 2004/38/EC Article 7 (3) allows EEA nationals who are workers or self-employed to retain the status of ‘worker’ if they are temporarily unable to work as result of illness or accident, or involuntarily unemployed and duly recorded as a jobseekers. This is because they retain a relevant link to the job market. Article 16 (3) allows breaks in residence of up to six months in any year or up to twelve months for serious reasons such as pregnancy without interrupting continuity of residence for the purpose of acquiring permanent residence. Dias C-325/09 paragraph 20: The ‘right to reside’ which entitles the holder to claim income support is not expressly defined. Since May 2004, national law had sought to restrict payment of that benefit in order to ensure that certain person do not become an unreasonable burden on the social assistance system.

Article 7(4) Directive 2004/38/EC Article 7(4) states that only the spouse/registered partner and dependent children shall have the right of residence as family members of a Union citizen who retains the status of worker under Article 7 (3) (b) and (c) (involuntary duly recorded unemployment and genuinely seeking jobs). Unmarried pregnant partners don’t qualify.

Challenge for pregnant women A pregnant woman who ceases to work temporarily due to pregnancy, who is not on maternity leave and does not fall in one of the categories listed in article 7(3) does not retain the right to reside and cannot access those benefits subject to the right to reside test, such as Income Support, Housing Benefits, Council Tax Benefits. The real problem is for cases that fall under Article 7 (3) (a) only: the JS scenario.

JS v Secretary of State for Work and Pensions [2011] EWCA Civ 806 The claimant is a French national who came in the UK in 2006 and worked for more than a year. Then she enrolled in a Post-Graduate Certificate in Education course for modern languages at the Institute of Education, University of London. Her tuition fees were funded by a student loan and she was supported by a bursary. She became pregnant,  the  expected date of confinement being 2 June 2008. Realising that she would have given birth prior to  the  end of her course she withdrew from her studies as of 1 February 2008. Her bursary payments ceased. She undertook agency work from 22 January 2008, hoping to find teaching assistant positions in secondary schools. None was available so she took agency positions working in nursery schools. By 12 March 2008  the  demands of caring for nursery school children while some 6 months pregnant were proving too much and she stopped such work. The  claimant looked unsuccessfully for lighter work  for a few days before giving up doing so and on 18 March 2008 claiming income support, which was refused. Her baby was born on 21 May 2008. Some three months later,  the  claimant resumed employment. Sadly, in My 2009,  the  baby died from a heart condition.

AIRE Centre has given advice in cases where pregnant women were: EEA national forced to quit work by abusive partner who was a British citizen; Non EEA national unmarried partners of an EEA national; EEA national left by partner; EEA national forced to leave home following break down of relationships (due to pregnancy) between family members they were depending on; Jobseeker who stops seeking job right after giving birth; Self-employed person who quits job due to pregnancy; NB: Often the woman was working or studying in the UK for a year or more before pregnancy.

Other possible cases: EEA national self-employed person who is single mother; EEA student who withdraw from the course due to pregnancy.

We observed that The circumstances in which a woman finds herself right before or after giving birth are often such to prevent her from seeking jobs or working either as an employee or a self-employed person.

We think that The absence of a provision stating that a woman may retain her right to reside constitutes an inequality which affects women’s enjoyment of the right of free movement under EU law.

What is at issue in JS case? Interpretation of Article 7(3) Directive 2004/38/EC - Argument #1: Article 7(3) is not comprehensive: it confers a right to reside to women who, having become pregnant, ceased work temporarily. - Argument #2: Article 7(3) is comprehensive: unfair discrimination against pregnant women who, as a result of pregnancy, cannot work.

The reasoning in JS decision 1. The circumstance of a woman who decides not to return to work following the expiration of maternity leave or who gives up employment to care for a child but anticipates a return after some yet unknown time are very common and are not analogous to those in art 7 (3) (a). 2. This does not constitute indirect discrimination: a national who gives up work to care for children may be of either gender as well as a person who gives up work to care for an elderly relative. 3. Extending the meaning of article 7 (3) (a) to include ‘pregnancy’ would be illegitimate judicial legislation. 4. The effect of this insertion would be uncertain: for how long before and after the expected date of delivery would the status of worker be retained? 5. The text of Article 7 was intended to be complete and comprehensive. 6. Pregnancy was deliberately excluded from art 7 and included in article 16 (permanent residence).

How we can attack this reasoning? Arguing a discrimination on the grounds of sex: Article 7 (3) constitutes an unlawful discrimination on the grounds of sex contrary to general principles of EU law where it does not provide that pregnant women retain the status of worker at least for a specified period before and after the birth of the child. There are other pieces of EU legislation that prohibit sex discrimination (both direct and indirect) in the granting of social assistance and social security benefits.

Most relevant EU legislation Articles 20, 21 and 23 of the Charter of Fundamental Rights of the European Union. Directive 79/7/EC on the progressive implementation of the principle of equal treatment for men and women in matters of social security. Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions as amended by Directive 2002/73/EC. 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.

General principles of EU law: respect for fundamental human rights. Equal treatment and non discrimination of men and women is a basic principle of EU law Case 43/75 Defrenne. Article 3 of the Treaty establishing the European Community provides that promoting equality between men and women is one of the Community’s essential tasks. Article 3 (2) of the same Treaty requires the Community to aim at eliminating inequalities and promoting equality between men and women in all its activities.

Substantive equality EU law is concerned with substantive equality rather than formal equality of pregnant women and women on maternity leave by reducing de facto inequalities which may arise in society and, preventing or compensating for disadvantages in the professional career of the relevant person (see Alvarez v Sesa Start Espana ETT SA)

Substantive equality Achieving substantive equality often involves more favourable treatment of women. Case C-394/96 1998 Brown v Rentokil Ltd: more favourable treatment of women is necessary in order to remove the disadvantages associated with pregnancy and absence on maternity leave.

Pregnancy as ‘special situation’ – EU law Case C-342/93 Gillespie and others: women taking maternity leave find themselves in a situation which cannot be equated to that of a man nor with that of a woman actually at work. This special situation requires special protection. In the legal systems of some Member States, statutory maternity leave takes the form of a prohibition of work and thus constitutes, for the woman concerned, a status she cannot waive. (...) However, this does not prevent periods of absence taken in connection with maternity leave from being considered as periods of employment, for the purposes, at any rate, of social security. Paragraph 41, Opinion of Advocate General Alber in Case C-218/98 Oumar Dabo Abdoulaye and Others.

Other remarks Purely financial considerations do not in any event constitute a material reason which would make discrimination on the grounds of sex permissible. Also, unequal treatment on the grounds of sex cannot be justified by referring to budgetary considerations (C-356/09 Kleist; C-343/92 Roks and Others; C-4/02 Schönheit and Becker; C-5/02; Steinke; C-196/02 Nikoloudi).

Other remarks Men do not get pregnant and therefore they will never lose their worker status for this reason. Family members of a qualified male EEA national never face the risk of losing the benefits that they are entitled to in that position by virtue of the man becoming pregnant. However, a woman does face the risk of losing her right to reside when she becomes pregnant. If she is no longer a qualified person once she loses the worker status due to pregnancy, then her family members who were dependent on her status as a qualified person are no longer eligible for benefits. This supports the AIRE Centre’s opinion that the treatment of pregnant women as regards their exclusion from Article 7 (3) of Directive 2004/38/EC constitutes a discrimination which is not legally justified under EU law.

Summary In our opinion Article 7 (3) Directive 2004/38/EC works against the achievement of the objective of equal treatment of men and women, which is a basic principle of EU law, by discriminating against pregnant women. Also, it works against the achievement of freedom of movement of EU citizens, which is the objective of Directive 2004/38/EC.

Discussion