European Union law – free movement of workers – application of Genuine Prospects of Work test – compelling evidence requirement
The Secretary of State decided, following Genuine Prospects of Work (GPOW) interviews, that all four claimants were no longer entitled to jobseeker’s allowance (JSA) as they had failed to provide compelling evidence that they had a genuine chance of obtaining employment. The Secretary of State was the appellant in three cases where the First-tier Tribunal (F-tT) had upheld the claimant’s appeals and a claimant the appellant in the remaining case. The main issue before the Upper Tribunal was whether the claimants had provided compelling evidence of a genuine chance of being engaged in work, thereby retaining their status as jobseekers under the Immigration (European Economic Area) Regulations 2006 (as amended). In addition two claimants argued that they had alternative grounds.
Held, allowing the appeals, that:
the only civil standard of proof was that the fact in issue had more probably occurred than not, but in deciding that question regard should be had, to whatever extent appropriate, to inherent probabilities: Re B (Children)  UKHL 35 (paragraph 23);
to satisfy the GPOW test a person had to have a chance of being engaged which was founded on something objective and offered real prospects of success in obtaining work (that was genuine and effective) within a reasonable time: Antonissen, C-292/89, EU:C:1991:80. A tribunal would need to take a period of six months (or longer) of unsuccessful jobseeking into account, along with other factors, in assessing whether a person did indeed have genuine chances. The “compelling evidence” requirement could not go further than that without undermining the Antonissen test. The argument that regard should only be had to qualifications possessed by the claimant either on entering the UK or, alternatively, at the date of the decision under appeal was rejected (paragraphs 42 to 57);
when deciding an appeal, tribunals should not limit themselves to considering whether a claimant met the Department for Work and Pensions’ own guidance, as its narrow focus might mean that a claimant was not alerted to the need to raise other issues which might bear on their chances of getting a job (paragraphs 61);
the judge rejected the alternative grounds argued by two of the claimants (paragraphs 132 to 146).
The judge set aside the decisions of the F-tT in all four cases, re-making the decision in one case to the effect that the claimant was not entitled to JSA, in another staying a decision pending a Court of Appeal judgment in a related case and remitting the appeals in the remaining two cases to differently constituted tribunals to be re-decided in accordance with his directions.