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PRESS RELEASE: Jessy Saint Prix v Secretary of State for Work and Pensions

12 December 2013

AIRE intervention at the Court of Justice of the European Union

On 12 December 2013 Advocate General Wahl of the Court of Justice of the European Union (CJEU) delivered his Opinion in the case of Jessy Saint Prix [Case C-507/12], which concerns the position of EU citizens who temporarily stop working in the late stages of pregnancy, in order to have their baby. In particular, the issue for the Appellant in this case was whether she remained a ‘worker’ under EU law during that period and whether she should have been entitled to receive Income Support under the same general criteria that the UK authorities apply to pregnant British citizens in the same circumstances.

The AIRE Centre intervened in the case, providing written and oral submissions for the hearing on 14 November 2013, at which we noted the doubly discriminatory nature of the UK’s approach and reiterated that Article 7 of Directive 2004/38 cannot be interpreted so as to limit the effect of overarching EU legal principles, including under the Treaty on the Functioning of the European Union and the EU Charter. Jemima Stratford QC made expert submissions on behalf of the AIRE Centre, further highlighting that, whilst the possible routes to interpretation of the legal issues present the Court with a labyrinthine task, the ultimate answer should be that women in the position of the Appellant cannot be deemed to have lost their ‘right to reside’ when they temporarily stop working in the latter stages of pregnancy. 

Advocate General Wahl’s Opinion is that such women can properly be protected under Article 7(3) of Directive 2004/38, as opposed to simply remaining ‘workers’ under Article 7(1), or bypassing the Directive altogether. However, in taking this route through the labyrinth, the Advocate General essentially invites the Court to:

- categorically reject the approach of the UK authorities;

- confirm that the concept of a worker must be construed broadly, and that this is a matter of primary law that cannot be constrained by the Directive;

- invite the domestic courts to delimit the period during which a pregnant woman would be entitled to Income Support by reference to the period applicable to a UK national.

It is also notable that A-G Wahl strongly suggests in his Opinion that the UK’s current application of a domestic ‘right to reside’ test to pregnant women in the circumstances of the Appellant should not automatically be presumed to be proportionate in each individual case. Referring to the recent judgment of the CJEU in Brey, the Opinion reiterates that EU Member States cannot exercise their discretion to determine whether a national of another Member State who has recourse to social assistance fulfils the conditions for a right to reside in such a manner as to jeopardise the fundamental principle of freedom of movement.

The Advocate General is an officer of the Court whose Opinion is submitted to the Court’s judges to assist them in drafting the Court’s binding judgment.  The Court has not yet announced the date the judgment in this case will be delivered. 

The AIRE Centre remains particularly grateful to the Strategic Legal Fund for Vulnerable Young Migrants (formerly for Refugee Children and Young People) for funding the travel to the hearing in Luxembourg and related costs.  The AIRE Centre would not have been able to attend otherwise. We would also like to reiterate our sincere thanks to Jemima Stratford QC and the team at Freshfields Bruckhaus Deringer (led by Deba Das) for their central role in litigating the AIRE Centre’s intervention.

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