The recent immigration decision of Upper Tribunal Judge Ward in SSWP v SSF and others  UKUT 0502 concluded that EEA citizens may keep their ‘worker’ status for 52 weeks when they are not working due to pregnancy/maternity-related reasons. The case will be important in immigration cases in applications for a right of residence in the UK under the Immigration (European Economic Area) Regulations 2006.
Judge Ward in this decision reaffirmed and extended the notion of the Court of Justice of the European Union (CJEU) case C-507/12 St Prix v Secretary of State for the Work and Pensions  1 CMLR 5.
The St Prix facts
Ms Saint Prix was an EEA (European Economic Area) national employed in the UK she stopped working less than three months before the birth of her child. The physical constraints of pregnancy and the immediate aftermath of childbirth prevented her from continuing with her work. She returned to work three months after giving birth. She did not leave the UK at any point in this period of absence from work.
The St Prix decision
The Court of Justice of the European Union (CJEU) held: ‘Article 45 TFEU [providing for free movement of EEA citizen workers] must be interpreted as meaning that a woman who gives up work or seeking work, because of the physical constraints of…pregnancy and the aftermath of childbirth retains the status of ‘worker’, within the meaning of that article, provided she returns to work or finds another job within ‘a reasonable period’ after the birth of her child.’
How this affects EEA nationals and their right to permanent residence
- When do the St Prix rights apply?
The St Prix right as a general rule begins 11 weeks prior to the expected date of birth but this period may differ in unusual circumstances and can therefore be case specific.
- Can a St Prixright may be established prospectively as well as retrospectively?
This means that an EEA national who takes an unavoidable break from work due to maternity related reasons does not need to demonstrate that she will, or that she did return to work (within ‘the reasonable period’) after giving birth. The primary requirement to be demonstrated by an EEA national is simply an ‘intention to return’ to work.
To prevent abuse, this right to retain the ‘worker’ status can be revoked at a later stage where an EEA national is deemed to have breached the ‘reasonable period’ as per the St Prix case. For example where an EEA national has applied for social welfare demonstrating an intention to return to work but has not returned to work after what was deemed to be the ‘reasonable period’ in her circumstances.
- The Reasonable Period
The ‘reasonable period’ to qualify under the St Prix right is, is ordinarily 52 weeks (1 year). The Home Office argued for half of this period but again this is a period which may differ under unusual circumstances and may be extended further than a year.
- Does a woman have to return to work or will a return to ‘job seeking’ suffice
A woman who had exercised treaty rights as a ‘job-seeker’ before she became pregnant may use the ‘St Prix right’ during her maternity period before becoming a ‘job-seeker’ once more after her pregnancy (instead of returning to work or finding another job).
- How this affects permanent residence applications
Judge Ward reaffirmed the St Prix decision that where ‘someone is not available for work during their pregnancy or a reasonable time does not mean that they cease to belong to a market of a host Member State’. The thought behind this is that pregnancy must be accommodated in line with the objective to ensure that EEA workers are able to move freely within the EEA and remain in a host member state for employment.
The ‘reasonable period’ of 52 weeks is also directly in line with the EEA guidance on permanent rights of residence. The EEA guidance allows for an absence of 12 consecutive months for important reasons; (such as pregnancy and childbirth) when accumulating a continuous period of five years of residence in the UK to allow migrants to obtain a right of permanent residence.
UK Immigration Advice for EEA rights of residence
Our team of experienced and professionally qualified immigration solicitors and barristers will be able to guide sponsors and applicants looking to settle in the UK through the complex legal requirements, whether you are looking to take up employment study or join family and partners that are already UK.
We also undertake a great deal of appeal work before the Immigration and Asylum Tribunal and have a successful track record of successful results for our clients. We have the experience and the knowledge required to take your case forward successfully. If you are a EEA (European Economic Area) national or if you have had a residence application refused, contact us to discuss your case so that we can provide you with a case assessment.