CBTM10081 - Entitlement: Residence and immigration - Right to reside: Retaining a right to reside following giving up work or self-employment during the latter stages of pregnancy
Retaining a right to reside following giving up work or self-employment during the latter stages of pregnancy
The Court of Justice of the European Union (CJEU) [formerly European Court of Justice (ECJ)] - Case: Saint Prix and Dakneviciute
In June 2014 the CJEU gave judgement on a case (Saint Prix vs DWP - Case C-507/12).
In September 2023 the CJEU gave judgement on a case (Dakneviciute - Case C-554/18). This judgement gave a self-employed woman the same rights as an employed woman.
The judgements mean that EEA national claimants who;
- give up work or self-employment, or
- give up seeking work, or
- give up looking for work and have retained their status as a worker,
in the ‘latter stages of pregnancy’ and who intend to return to work or self-employment after 'a reasonable period' following child birth, can retain a right to reside in the UK. As such, they would not be excluded from entitlement to ChB and/or CTC.
As a guide, the ‘latter stages of pregnancy’ is currently 11 weeks before the estimated date of delivery. However, consideration should be given to the facts and circumstances of each individual case. When considering extending the period of the latter stages of pregnancy to more than 11 weeks, the customer should provide evidence of why this extension is necessary. For example:
- Has the mother undergone complications during her pregnancy, or
- Has the type of job the mother had been doing, required her to leave work at an earlier stage of her pregnancy.
The 'reasonable period' set out in the Saint-Prix judgement has been defined as 52 weeks, however includes a fact sensitive element. Therefore in certain exceptional circumstances it would be reasonable for the period to exceed 52 weeks. For example; Due to serious illness or, disability of the child, there is a need for continued parental care.
The list of examples that will be given in order to satisfy the ‘reasonable period’, is inexhaustive. This means that consideration will need to be given to the individual circumstances of each case, before a decision is made to extend the ‘reasonable period’.
An intention to return to work/self-employment or, return to job-seeking within a reasonable period, should be accepted in all cases unless the claimant expressly states that she has absolutely no intention of returning to work or self-employment. Where an intention to return to work or self-emploiyment is accepted, the claimant’s Saint-Prix/Dakneviciute rights will continue up to the point where either, the claimant expressly states that she does not intend to return to work/self-employment or, the end of the reasonable period is reached, whichever occurs first.
On expiry of the 52 weeks reasonable period, a customer will need to show they have returned to work/self-employment, or have resumed looking for work, in order to continue satisfying right to reside conditions. If they are unable to do this, for their entitlement to continue, they will need to show they have a right to reside in another way.
Where a customer returns to seeking employment after the reasonable period, they will only have a right to reside as a jobseeker for a maximum period of 91 days. For entitlement to continue they will have to show they have a right to reside in another way. If they were looking for work prior to the latter stages of pregnancy, the number of days they spent looking for work, should be subtracted from the 91 days following their return to job seeking, if they start seeking work within 12 months of last doing so.