June 2017 – Genuine Prospect of Work
There have been a number of challenges to the genuine prospect of work test applied to EU nationals seeking employment in the UK in relation to their right to reside here.
In one case the upper tribunal considered whether the requirement to provide compelling evidence to satisfy the genuine prospect of work (GPOW) test was compatible with EU law. The judge decided that compelling evidence could only require the same standard of proof as on the balance of probabilities. A higher standard of proof would be incompatible.
In a subsequent case (Secretary of State for Works & Pensions v MB), the judge also concluded that the GPOW test could be no higher than the balance of probabilities. However it was noted that EU countries are entitled to decide their own reasonable conditions to give effect to EU law, providing this does not undermine EU law. Since UK law did not interpret the definition of a jobseeker more restrictively than existing EU law, it was not possible to raise the bar on entitlement to benefit higher than existing case law. As a result the GPOW test was not considered to be incompatible with EU law.
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