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Collins v Secretary of State for Work and Pensions 2004

The decision, Collins v Secretary of State for Work and Pensions 2004, states that the habitual residence test cannot be used to restrict European Union national's access to income-based jobseeker's allowance unless the Government can show that a period residence of itself is necessary to show that the person is genuinely active in the labour market.

Mr Collins is a US/Irish national who had done casual work in the UK during a 10 month stay in 1980-81. In 1998 he returned to the UK to look for work and claimed JSA. He was refused on the basis he was not habitually resident. The European court found the following:

• Mr Collins was not a worker for the purposes of Article 7(2) Regulation 1612/68 because there was no link between his current search for work and the work he had done in 1980-81
• JSA falls within the scope of Article 48(2) of the Treaty as a benefit of a financial nature intended to facilitate access to employment in the labour market.
• There is some doubt about the legality of the habitual residence test for JSA because that test places non-UK EU nationals at a disadvantage.

Following that decision the case was referred back to commissioners as CJSA/4065/1999. Commissioner Mesher interpreted the judgment as saying that the claimant must demonstrate that he has been genuinely seeking work for a period of time. The function of the habitual residence test is to establish this.

The appeal failed. Leave to appeal to the Court of Appeal has been granted.

More information

• back to the frequently asked questions on benefits law page
• child poverty action group press release
• european court judgment
• rightsnet article

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