AG and Others (EEA-Jobseeker-Self-Sufficient Person-Proof) Germany [Asylum and Immigration Tribunal]

JurisdictionEngland & Wales
CourtAsylum and Immigration Tribunal
Judgment Date19 June 2007
Date19 June 2007

Asylum and Immigration Tribunal

Storey SIJ and Grubb SIJ

AG and Others (EEAJobseekerSelf-Sufficient PersonProof) Germany

Representation

Mr K Idowu, Kola Fitzpatrick and Co, for the Claimant;

Mr Glyn Saunders, Home Office Presenting Officer, for the Secretary of State.

Cases referred to:

Baumbast and R v Secretary of State for the Home Department (Case C413/99); [2002] ECR I7091

Centros Ltd v Erhvervs-og Selskabsstyrelsen (Case C212/97); [1999] ECR I1459

Chang (EEA Nationalsspouses) Malaysia*[2001] UKIAT 00012

CA v Secretary of State for the Home DepartmentUNK[2004] EWCA Civ 1165; [2004] Imm AR 640; [2004] INLR 453

Collins v Secretary of State for Work and Pensions (Case C138/02); [2004] ECR I02073

Commission of the European Communities v Kingdom of Belgium (Case C344/95); [1997] ECR I1035

Commission of the European Communities v Kingdom of Belgium (Case C408/03); [2006] ECR I02647

GM and AM (EU national; establishing self-sufficiency) France[2006] UKAIT 00059

Lair v Universitat HannoverECAS (Case 39/86); [1988] ECR 3161

MA & Others (EU national; self-sufficiency; lawful employment) Bangladesh[2006] UKAIT 00090

Martinez-Sala v Freistaat Bayern (Case C85/96); [1998] ECR I2691

R v Immigration Appeal Tribunal ex parte Antonissen (Case C292/89); [1991] ECR I745

RP (EEA Regsworkercessation) Italy[2006] UKAIT 00025

Raulin v Minister van Onderwijs en Wetenschappen (Case C357/89); ECR I1027

Tsiortras v Landeshauptstadt Stuttgart (Case C171/91); [1993] ECR I2925

W (China) and X (China) v Secretary of State for the Home DepartmentUNK[2006] EWCA Civ 1494; [2007] Imm AR 326; [2007] INLR 115

Ali v Secretary of State for the Home DepartmentUNK[2006] EWCA Civ 486; [2006] Imm AR 532; [2006] INLR 537

Zhu and Chen v Secretary of State for the Home Department (Case C200/02); [2004] ECR I09925

Legislation judicially considered:

Immigration (European Economic Area) Regulations 2006, Regulations 4, 6 and 13

Citizens Directive (Directive 2004/38/EC), Recitals 9, 10, 20 and 21, and Articles 3, 6, 7, 8 and 14

European Union law workers self-sufficient persons jobseekers calculation of resources burden of proof

The first Claimant, a citizen of Germany, came to the United Kingdom with his wife (the second Claimant) and his child (the third Claimant). The second Claimant was a citizen of Sierra Leone and the third Claimant was a citizen of Nigeria. The first Claimant applied for a registration certificate for himself and residence cards for the second and third Claimants as confirmation of their right of residence in the United Kingdom. The Secretary of State for the Home Department refused the applications on the ground that the first Claimant had failed to provide evidence that he was a qualified person for the purposes of Regulation 6 of the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations). Regulation 6 defined a qualified person as an EEA national in the United Kingdom who was a jobseeker, worker, self-employed person, self-sufficient person or student.

On appeal to an Immigration Judge the Claimants adduced evidence that the first Claimant had began to seek work three months after entering the United Kingdom. The Immigration Judge dismissed the appeals as he was not satisfied that the first Claimant was a worker or a self-sufficient person as defined by the 2006 Regulations.

On reconsideration, it was common ground that the Judge had erred in law first, in failing to appreciate that, if the first Claimant could demonstrate that he was a jobseeker, he was entitled to be treated as a qualified person; and secondly, when assessing whether the first Claimant was a self-sufficient person. The Claimants contended that the errors were material and that the Judge should have allowed the appeals on the grounds that the first Claimant was a jobseeker and a self-sufficient person. Regulation 4(1)(c) defined a self-sufficient person as a person who had sufficient resources not to become a burden on the social assistance system of the United Kingdom during the period of residence and who also had comprehensive sickness insurance cover in the United Kingdom. The first Claimant's representative accepted that there was no evidence that the first Claimant met these requirements, but he said that the second Claimant had informed him that the first Claimant had taken out comprehensive sickness insurance in Germany which covered the family in the United Kingdom. It was further submitted that in assessing whether the first Claimant was self-sufficient, his own resources should be aggregated with those of his family members. It was accepted that the outcome of the second and third Claimants' appeals was dependent on the result of the first Claimant's appeal.

Held, affirming the original determinations dismissing the Claimants' appeals against the decisions of the Secretary of State:

(1) in order to qualify as a jobseeker under the 2006 Regulations, an EEA national needed to have satisfied all three requirements of Regulation 6(4): first, that he had entered the United Kingdom in order to seek employment; secondly, that he had produced evidence that he had been seeking employment; thirdly, that he had a genuine chance of being engaged; the first Claimant did not meet the first requirement as he had not entered the United Kingdom with the intention of seeking employment; accordingly, at the date of decision he did not qualify as a jobseeker (paras 32 and 33);

(2) a person who was a jobseeker could also qualify as a worker under Regulation 6(1)(b); it was, however, apparent that the ECJ case law on workers-as-jobseekers imposed essentially the same requirements as the 2006 Regulations in respect of jobseekers; whether a claimant wished to be considered under Regulation 6(1)(a) as a jobseeker or under Regulation 6(l)(b) as a worker, he was required to satisfy the requirements of Regulation 6(4) (paras 48 and 51);

(3) a claimant could only continue to be a jobseeker for a reasonable period, which would have to be determined with reference to the particular circumstances of that claimant; a reasonable period could be more or less than a period of six months and was to be calculated from the date of the claimant's arrival in the host Member State; each case needed to be decided on its merits with regard to the individual's intentions in entering the host Member State, his jobseeking history vis-a-vis the labour market and his chances of being employed: R v Immigration Appeal Tribunal ex parte Antonissen[1992] Imm AR 196 applied (paras 48, 49 and 52);

(4) the burden of proof to substantiate any EEA right of admission or residence was on the Claimants by, for example, producing relevant evidence; in this case the Claimants had failed to produce satisfactory evidence demonstrating that they had comprehensive sickness insurance cover in the United Kingdom; such evidence could not be created by a representative informing the Tribunal that insurance cover had been taken out; claimants seeking to rely on EEA rights should expect that a failure to produce relevant evidence could well mean that the decision in their case would be a negative one unless they were able to point to a specific provision of Community law limiting the need to produce evidence (paras 67 and 89);

(5) for the purposes of Regulation 4(4) of the 2006 Regulations the self-sufficiency of an EEA national could not be established by aggregating his resources and those of his family members, regardless of whether or not the resources of the family members had been lawfully acquired: W (China) and X (China) v Secretary of State for the Home DepartmentUNK[2006] EWCA Civ 1494, GM and AM[2006] UKAIT 00059 and MA and others[2006] UKAIT 00090 applied (para 81);

(6) while the Judge did err in law, his errors were not material since, on the evidence before him, the first Claimant did not meet the requirements of being a jobseeker or a self-sufficient person within the meaning of the 2006 Regulations (para 93).

Determination and Reasons

[1] The first appellant is a citizen of Germany born on 18 December 1963. The second and third appellants are his wife, born on 19 September 1970 and child born on 13 May 1988. They are citizens of Sierra Leone and Nigeria respectively. This is a reconsideration of the determination of Immigration Judge Saffer notified on 6 March 2007 dismissing their appeals against decisions dated 22 January 2007 refusing to issue the first appellant with a registration certificate and refusing to issue the second and third appellants with a residence card as confirmation of their right of residence in the United Kingdom under European Community law. The outcome of the second and third appellants' applications for reconsideration is dependent on the first appellant's application.

[2] The immigration judge's findings of fact were as follows:

10. I do not accept that the first appellant is a worker as defined as he has never worked here. Just because he has sought employment does not mean he is a worker. He has not fallen unemployed as he has never been employed.

11. Even if I am wrong in that he has relied on social assistance following the death of his father as he paid the subsidised pensioners rent to which he was not entitled for 4 months which saved him almost 2000 being almost the total amount of the combination of his savings and his wife's income. Without that reliance on subsidised rent to which he was not entitled they would have no savings at all. He is not therefore self-sufficient.

[3] The grounds for reconsideration contend that the immigration judge materially erred in law at para 10 in that his interpretation of the term worker wrongly excluded someone who (like the first appellant) was a jobseeker. The grounds also argue that the immigration judge was wrong to find at para 11 that the first appellant had relied on social assistance and wrong to conclude that the appellant's savings taken...

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