Legal arguments that the “GPOW” test is

unlawful

Mike Spencer
With thanks to Martin Williams
…to the GPOW!
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What is the “GPOW”?
• The genuine prospect of work test applies to:
– EEA nationals who have had a right of residence only as
a jobseeker for longer than 91 days
– EEA nationals who wish to retain status as worker when
unemployed for longer than 6 months having worked for
over a year.
• Effect is a right of residence as jobseeker/retained worker
only exists if can provide “compelling evidence” of:
– a genuine chance of being engaged.
– that they are continuing to seek employment
• (Note- for those worked less than a year then retention is six months only unless period of
absence in which case may have right to reside as jobseeker provided compelling evidence
provided from Day 1)
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DWP Guidance
• Decision Maker’s Guide at 073099 to 073100 describes
what can count as compelling evidence:
“1.[…] reliable evidence that they have a genuine offer of a
specific job which will be genuine and effective work […]
provided that job is due to start within 3 months starting
from the relevant period plus 1 day point. […] or
2.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.

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Guidance and EU law
• A person with an offer of a job is in any event a worker and
not a jobseeker- SSWP v RR (IS) [2013] UKUT 21 (AAC)
• A further 2 month extension as a maximum begins to look like
an absolute rule- arguably that is prohibited- Case C-344/95
Commission of the European Communities v Kingdom of
Belgium:
• 17 In the absence of Community provisions prescribing a
period during which Community nationals who are seeking
employment may stay in their territory, the Member States
are entitled to lay down a reasonable period for this
purpose. However, if after 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 5
Guidance and the UK law
• Law says (effectively):
− “Compelling evidence of a genuine chance”
• Arguable guidance requires:
− “Evidence of a compelling chance”

• Similar to requiring “compelling evidence of being tall”

and then turning away people who are under 6’6’’.
• Even if that is not a good argument there may well be
room for arguing the guidance is tougher than the test in
UK law.
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When must evidence be given?
• DWP argue that the evidence cannot be
provided after date of decision.
• In CH/3314/2005 (decided before UK law
provided for a right to reside for jobseekers)
it was held evidence could be provided at
tribunal hearing.

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GPOW effects on HB
• EEA claimants on JSA continuously since prior to
01/04/2014 may well be getting housing benefit
and are not effected by the rule change from that
date that mean receipt ib-JSA not a passport
through R2R test.
• If JSA ends following GPOW test so too does HB.
• DWP started testing existing claimants under
GPOW from 09/02/2015
• They expected 8,800 claimants to be tested.

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Retaining worker status: work over 1 year
• Article 7(3)(b) Directive 2004/38 has no time limitation at
which point evidence is needed.
• Article 7(3)(b) also has no requirement for evidence at all.
• SSWP v MM (IS) [2015] UKUT 0128 (AAC) paras 53-54 held:
– The period of residence is “open ended but not for ever
more”; and
– retained worker status will continue indefinitely “in the
absence of some intervening event which indicates that
the person has withdrawn from the labour market
entirely”
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Retained worker status: less than 1 year
work
• Article 7(3)(c) says “no less than six months”
• AG in Alimanovic suggests it is permissible to
interpret that as meaning only 6 months
• Arguably thereafter then simply need to meet
Antonissen test to at least have a right to reside as a
jobseeker
• BUT: UK rules insist on a period of absence after the
six months and then apply the compelling evidence
requirement from day 1 unless that absence is over
12 months 10
EU law - Antonissen
• Case C-292/89 Antonissen involved UK law providing for expulsion
of EEA migrant jobseekers after six months.
• ECJ held:
• 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.
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DWP view as to lawfulness GPOW
• 1) Antonissen held genuine chance of work did
not apply until 6 month point;
• 2) BUT Article 14(4)(b) Directive 2004/38 says
can require evidence of genuine chance of work
from day 1.
• 3) Putting (1) and (2) together this must mean a
higher standard of evidence can be required at
the six month point.
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Why the DWP may be wrong
• Antonissen did not hold no need for evidence during first six
months:
– “In the absence of a Community provision prescribing the
period during which Community nationals seeking
employment in a Member State may stay there”
• So therefore no difference between pre and post Directive can
be asserted- Art 14(4)(b) Directive position has always been EU
law position
• Also Recital 3 of Directive- its about strengthening rights
(Metock)
• Also right of jobseekers is direct from TFEU – cannot be cut
down by secondary legislation 13
JSA Rules
• S.1(2)(a) Jobseekers Act 1995 requires claimant to be available
for work.
• S(6)(1) defines availability for work as available for all work.
• Claimants can (and most do) restrict availability for work
under easements in the JSA Regulations (SI 1996 No. 207):
– Pattern of availability over which can do 40 hours (reg 7).
– Type of work, location, terms and conditions etc (reg 8
– Hours to less than 40 if have caring responsibilities (reg
13(4).
• To restrict availability must have “reasonable prospects of
securing employment” (defined further in reg 10)
• Claimant has to show this and does so when signs on (reg 23-
24)
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Spot the difference:
• “Genuine chance of being engaged [in
employment]” – Antonissen test
• “Reasonable prospects of securing
employment” – JSA test most claimants
regarded as meeting

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R(IS)8/08 – slide 1
“some people may be available for work and be actively
seeking employment but not have a genuine chance of
being engaged because, for instance, they have an
insufficient command of English or Welsh for the type of
job they are seeking or, perhaps, they have settled in an
area where there is a particularly high level of
unemployment and a dearth of jobs, so that the
requirement to have a genuine chance of being
engaged can be an additional hurdle.”
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R(IS)8/08 – slide 2
• However, that additional hurdle will not often be significant and I
suggest that the proportion of cases in which it will be right to reject
a claim for jobseeker’s allowance on the ground that the claimant
does not have a right of residence rather than on the ground that
the claimant does not satisfy one or more of the conditions in
section 1(2) of the Jobseekers Act 1995 – because, for instance, he
or she is not genuinely available for, or is not actively seeking,
employment – may be relatively small. It is true that a person who is
not genuinely available for, or is not actively seeking, employment
may not have a right of residence, but, in such a case, it is not
helpful to reject the claim solely on the ground of the lack of a right
of residence without reference to the underlying ground that would
apply to British citizens as well as other EEA nationals.”
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UK Tribunal and the GPOW
• Tribunals who accept the UK Rules are harsher than the
Antonissen test should ignore them -Case 106/77
Simmenthal:
“A national court which is called upon, within the limits of
its jurisdiction, to apply provisions of Community law is
under a duty to give full effect to those provisions, if
necessary refusing of its own motion to apply any
conflicting provision of national legislation, even if adopted
subsequently, and it is not necessary for the court to
request or await the prior setting aside of such provisions
by legislative or other constitutional means.”
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Alimanovic, Dano and the rest
• This line of cases now shows:
– That the UK are required to grant access to “benefits of a
financial nature intended to facilitate access to the labour-
market”.
– Collins held that JSA was such a benefit.
• Court of Justice decided the German ALG II was not such a
benefit:
• The UK attempt to redefine EU law concept of who has a right
of residence as a jobseeker is likely to be less successful in
impoverishing EU migrants than redesigning its own benefit
system

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 CPAG Strategic Law Fund
Genuine Prospect of Work Project
Referring cases: which cases?
• Refer at stage case:
– before UT or awaiting permission from FtT or UT;
– refused by FtT on the basis that the claimant did
not have “compelling evidence”;
– allowed by FtT on the basis that the GPOW test is
unlawful and DWP challenging; or
– allowed by FtT, but the DWP have only awarded
benefit for a time-limited period e.g. of 2 months
from the date of the original decision.
Referring cases: how to do it?
• More information:
– www.cpag.org.uk/gpow-referrals

• Email to: testcases@cpag.org.uk with:

– a brief description of the case
(300 words or so)
– copy of the FtT decision notice; and
– a copy of the FtT statement of reasons (if
available).