The EU free movement framework is structured around anachronistic and patriarchal working patterns. One small provision captures and crystallises the detriment experienced by female EU migrants: Article 7(3) of Directive 2004/38 allows migrants to keep their worker status when work has ceased temporarily for a number of reasons – illness, accident, involuntary unemployment, and in some cases voluntary unemployment combined with vocational training.
This is a list of ‘male’ risks. Conspicuously absent from this list are the ‘female’ risks of pregnancy and maternity, and caring responsibilities. Not only are such forms of labour excluded from the definition of ‘work’, they are excluded from the definition of permitted breaks in work. They are less protected – and so apparently less valuable – activities than illness.
The pregnancy gap in Article 7(3) is coming under review by the CJEU in the St Prix case – the hearing is due on the 14th of November 2013. As can be seen from the facts of the case, the gap particularly impacts upon EU migrant women with sick babies, since a child’s illness can delay the mother’s intended return to work. This delay is often a very short period; in St Prix the claimant returned to work 3 months after her baby was born prematurely. But even this temporary break from work resulted in her total loss of worker status, and a loss of right to reside, and loss of entitlement to equal treatment for purposes such as social protection. In contrast, those whose work is interrupted by, for example, illness, are afforded greater status security – a bridging status until their work can be resumed.
UK courts have argued that the pregnancy gap is a deliberate policy choice on the part of Member States. In an earlier case, the Social Security and Child Support Commissioner (the predecessor of an Upper Tribunal judge) argued that once a migrant knows that she is pregnant, she assumes the risk of having a sick baby who cannot migrate because of being in intensive care, and so assumes the risk of being temporarily out of work and unable to return home, and so assumes the risk of losing worker status and becoming destitute. The consequence of this argument is that if you want status security and you become pregnant, you should return to your home state. All of which suggests a remarkable and shocking asymmetry of free movement rights as between men and women.
The Court of Appeal of England and Wales suggested in St Prix that the gap prevents pregnant migrants dropping in to the UK to do a small amount of work and claim benefits – suggesting some undue suspicion regarding the motives and integrity of female migrants, and disregarding the CJEU case law on identifying whether work has been genuine and effective in order to confer worker status in the first place. Again, the contrast with illness is telling, since it is possible to establish worker status, and retain it, on the basis of a few months of work followed by a longer period of illness.
The Secretary of State for Work and Pensions has argued before the Supreme Court that there is a risk that women will not return to work after they have had their babies. But there is scant evidence to back up this antiquated idea. Women have for decades stayed in the workforce permanently, in keeping with UK and EU employment policies, and having a child is not a trigger to exit the labour market, especially in light of increased economic pressures. Besides which, the emphasis in Article 7(3) is on temporary breaks – those out of work due to illness do not retain worker status indefinitely, so there is no reason to fear that women on a temporary maternity period would either. Several women, for a number of reasons, feel they have to leave their jobs during pregnancy, but because they need to find another one once the baby is born. The current work may be too physically demanding, and no alternative roles may be available, or maybe their requests to work part time or more flexibly have been refused.
Given the emphasis in EU employment policy on flexible labour markets, it seems starkly incongruous not to ease the transition between jobs, and to recognise that working patterns are punctuated by various temporary breaks. It is time to stop treating such breaks related to pregnancy and maternity as deviations from the norm, and recognise that in a world in which women constitute nearly half (and an increasing portion) of the workforce, temporary reproductive breaks in work are part of the norm.
The gender tilt in free movement law is a deep and complex issue, revealing something about the commodification of persons, power imbalances and the devaluing of reproductive labour and unpaid care work. The pregnancy gap in Article 7(3) is a relatively small example, but rectifying it is an essential first step if women are to hope to ever have equal status security – and so equal EU citizenship as that enjoyed by men. Then we can think about including temporary breaks related to caring duties in Article 7(3). And maybe then we can think about a living wage for those on maternity leave. And possibly then we can tackle the concepts of economic activity and ‘dependence’…. But the first logically and morally irresistible step is to bridge the St Prix pregnancy gap.
Lecturer, York Law School
Ideas presented at a DELI seminar; also explored in: ‘I Trade, Therefore I Am: Legal Personhood in the European Union’ (2013) Common Market Law Review, forthcoming.