C-181/19 Jobcenter Krefeld – Jobseeker status does not ‘trump’ Teixeira carer rights

C-181/19 Jobcenter Krefeld v JD [2020] EU:C:2020:794

It had previously been presumed that, where someone has two statuses – a jobseeker, but also a C‑480/08 Teixeira carer, the former status should not ‘trump’ the latter. A judgment from the CJEU in October 2020 has provided clarity to this question confirming that restrictions in the Directive 2004/38 (the Citizens Directive) do not extend to those with a right of residence outside of this directive.

Why is this important for advisers in the UK?

The EU Rights and Brexit Hub has seen evidence of benefits decision makers appearing to prioritise an EEA+ nationals’ right to reside as a jobseeker over an alternative qualifying right to reside, for example as a Teixeira carer (the primary carer of a former EEA workers’ child in education). While a Teixeira carer can rely on equal treatment rights to access means-tested welfare benefits, jobseekers face considerable restrictions. Where a decision makers opts to view job-seeking as an overriding status, EEA+ nationals can find themselves being punished for looking for work.

While these decisions could sometimes be successfully challenged - by reminding decision makers of the equal treatment rights associated with holding a different right to reside - this new CJEU judgment can be a useful tool for advisers as it spells out that such an approach is prohibited by EU law.

The CJEU Case

Jobcentre Krefeld concerned an attempt to apply the restrictions on equal treatment contained in Article 24(2) of the Citizens Directive, for those solely residing in a host Member State for the purpose of seeking employment, to EU citizens who have also have right of residence based on Article 10 Regulation 492/2011 as the primary carer of a former migrant worker’s child in education (a Teixeira carer).

What was the case about?

JD was a Polish national who had resided in Germany with his two daughters since late 2012/13, he had spent some time in employment and they had attended school. After having to leave employment due to ill health, JD received social security sickness benefit and then unemployment benefits. An application made to continue receiving benefits on the basis of Article 10 of Regulation 492/2011 (as a Teixeira carer) was rejected by Jobcentre Krefeld on the basis that JD had not retained the status of worker and he was residing in Germany solely in order to seek employment.

On appeal, the Social Court of Düsseldorf held that, while JD had not retained his worker status, he could rely on his right of residence as the primary carer of a child in education of a former migrant worker. Article 10 of Regulation 492/2011 provides an independent right of residence, without requiring individuals to satisfy the conditions in Directive 2004/38, for example having sufficient resources or comprehensive sickness insurance (C‑310/08 Ibrahim). The German court held that this right of residence was autonomous from those found in Directive 2004/38 and therefore the derogations in Article 24(2) of that Directive (which restricted equal treatment rights for those deemed to be jobseekers) did not apply.

The German Higher Social Court then referred the question to the Court of Justice of the European Union (CJEU), asking them to consider whether the exclusion of those with a right of residence under Article 10 of Regulation 492/2011 from receipt of social assistance was compatible with EU law.

What did the CJEU say?

The CJEU considered the wording of Article 24 of the Citizens Directive which contained the derogations from equal treatment. They identified its scope as those residing in a host Member State ‘on the basis of [that] directive’ [62], namely situations where the right of residence is based on that directive, and not in situations where that right has an independent basis in Article 10 of Regulation No 492/2011’ [65].

The Court recognised that while JD fell into the scope of Article 24(2) as he had a right of residence as a jobseeker based on Article 14(4)(b) of that directive, he also held an independent right of residence based on Article 10 Regulation 492/2011. The restrictions on the former could not negate the entitlements attached to the latter [69-70].

‘the fact that jobseekers have specific rights under that directive cannot, having regard to the independence of the bodies of rules established by that directive and by Regulation No 492/2011 respectively, entail a diminution in the rights that such persons can derive from that regulation’ [70].

The CJEU agreed with the Commission, that it would be “paradoxical” if an EU citizen fulfilling the criteria for another right of residence and enjoying equal treatment rights were to be stripped of those rights the moment they started job seeking [71].

The CJEU addressed the compatibility of their finding with the objectives of Article 24(2) of the Citizens Directive, which had been used to restrict EU citizens access to a host Member States welfare system (see C‑333/13 Dano and C‑299/14 García-Nieto) [67-68]. The Court highlighted that the case concerned those whose rights stem from previous economic activity, and that the protection was only temporary, lasting only for as long as the child is in education [75].

How does this judgment affect EEA nationals in the UK?

This judgment clarifies some important matters on the rights of EU citizens who may meet the requirements of multiple rights of residence, confirming that restrictions in Directive 2004/38 should be interpreted strictly and should not extend to those with a right of residence outside of the Directive. This has already proved influential in the litigation on the benefit entitlements attaching to the new right to reside, pre-settled status (Fratila & Anor v. SSWP [2020] EWCA Civ 1741, see our blog on this).

The judgment also recognises that where an individual fulfils the criteria of multiple categories of a right of residence, the restrictions relevant for one category cannot dilute the entitlements granted to a different category. It can therefore be a useful case for EEA+ nationals and their advisers to challenge a decision which opts to focus and prioritise the restrictions placed on jobseekers, where an alternative right to reside can be demonstrated.

Contact the clinic if you have any questions or for free second-tier advice and support on using this case to challenge a decision.