Your World of Legal Intelligence
 United Kingdom | +44 (0) 20 7284 8080

Re Begum (EEA: Worker: Jobseeker: Pakistan)

Judgment Immigration Appeal Reports Cited authorities 15 Cited in 24 Precedent Map Related
Vincent
JurisdictionUK Non-devolved
JudgeMr C M G Ockelton,McCarthy
Judgment Date23 June 2011
Neutral Citation[2011] UKUT 275 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
Date23 June 2011
Categories

[2011] UKUT 275 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Mr C M G Ockelton, VICE PRESIDENT

DESIGNATED IMMIGRATION JUDGE McCarthy

Between
Surraya Begum
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: Mr N Chawla, instructed by IAS

For the Respondent: Ms D Cantrell, Senior Presenting Officer

Begum (EEA — worker — jobseeker) Pakistan

  • (1) When deciding whether an EEA national is a worker for the purposes of the EEA Regulations, regard must be had to the fact that the term has a meaning in EU law, that it must be interpreted broadly and that it is not conditioned by the type of employment or the amount of income derived. But a person who does not pursue effective and genuine activities, or pursues activities on such a small scale as to be regarded as purely marginal and ancillary or which have no economic value to an employer, is not a worker. In this context, regard must be given to the nature of the employment relationship and the rights and duties of the person concerned to decide if work activities are effective and genuine.

  • (2) When considering whether an EEA national is a jobseeker for the purposes of EU law, regard must be had to whether the person entered the United Kingdom to seek employment and, if so, whether that person can provide evidence that they have a genuine chance of being engaged. If a person does not or cannot provide relevant evidence, then an appeal is bound to fail on this ground.

DETERMINATION AND REASONS
1

On 17 November 2009, the Secretary of State for the Home Department refused the appellant's application for a residence card as the family member of a Union citizen. In a separate letter of the same date, the Secretary of State gave his reasons for refusing the application. In summary, the application was refused because the appellant had failed to provide satisfactory evidence to show that her husband, an Italian national, was working as claimed. The reason for this conclusion was that the official of the UK Border Agency acting on behalf of the Secretary of State had been unable to verify the existence of the stated employer of the appellant's husband.

2

The appellant appealed against this immigration decision as she was permitted to do under reg. 26 of the Immigration (European Economic Area) Regulations 2006. Her appeal was dismissed in a determination promulgated on 18 February 2010. The reasons why the Immigration Judge dismissed the appeal are evident in the following extract taken from para. 20 of her determination:

“… There has been no evidence of [business] premises, equipment or relevant insurances being carried. There has been no suggestion that there was a business plan of any sort. In its totality the setting up of the business and employment of the Appellant's husband in the circumstances described tended to give the impression that it was a business of convenience, and with the deficiencies already pointed out had the appearance of insubstantial foundations and very limited prospects for viability.”

3

The appellant sought permission to appeal to the Upper Tribunal against this determination. The grounds for that application can be summarised as follows:

  • a. The Immigration Judge failed to direct herself to the relevant legal provisions that identify who is a worker under Community law. As such, the findings relating to the appellant's husband cannot be sustained.

  • b. The Immigration Judge failed to make material findings of fact because she did not have regard to the claim of the appellant's husband that he was looking for a second job. As such, she should have considered his position as a jobseeker.

Permission to appeal was granted on 9 September 2010.
4

The grounds of application have been adopted as the grounds of appeal. We take each in turn.

Did the Immigration Judge err in deciding whether the appellant was a ‘worker’?
5

In settling the first ground, the appellant refers to two reported decisions, OA (Prisoner – Not a qualified worker) Nigeria [2006] UKAIT 00066 and RP (EEA Regs – worker – cessation) Italy [2006] UKAIT 00025, which discuss Community law about who is a worker. They are a starting point. A fuller and more recent discussion of Community law relating to who is a worker can be found in Barry v The London Borough of Southwark [2008] EWCA Civ 1440. It is to that judgment we turn for authority on the first issue arising in this appeal.

6

The Court of Appeal there examines the jurisprudence of the Court of Justice of the European Union (formerly the European Court of Justice). Reliance was placed in particular on the decisions in D M Levin v Staatssecretaris van Justitie (case no. 53/81) and Lawrie-Blum v Land Baden-Wurttemberg (case no. 66/85). The Court of Appeal identifies the following features for a Union citizen to be regarded as a worker.

  • a. The terms ‘worker’ and ‘activity as an employed person’ have a Community meaning and may not be defined by reference to the national laws of the Member States (see para. 11 of Levin, citied in para. 18 of the judgment).

  • b. Since it defines the scope of freedom of movement, the Community concept of a ‘worker’ must be interpreted broadly (see para. 16 of Lawrie-Blum, cited in para. 39 of the judgment).

  • c. The right of residence as a worker is not subject to any condition relating to the type of employment or to the amount of income derived from it (see para. 14 of Levin, citied in para. 18 of the judgment).

  • d. A worker is a person who pursues effective and genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary (see para. 17 of Levin, citied in para. 18 of the judgment).

  • e. The concept of ‘worker’ must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship is that for a period of time a person performs services for and under the direction of another person in return for which he receives remuneration (see para. 17 of Lawrie-Blum, cited in para. 39 of the judgment).

  • f. Such activities must have economic value to the employer (see para. 19 of Lawrie-Blum, cited in para. 39 of the judgment).

7

These six features set out the requirements that a Union citizen must demonstrate to be treated as a worker. With these factors in mind, the challenge posed by the first ground is whether or not the conclusions of the Immigration Judge are consistent with this approach.

8

In order to answer this question, it is relevant to set out the evidence that the Immigration Judge took into account. In summary, it was as follows.

9

First, there were documents and oral evidence dealing directly with the employment relationship. The evidence established that the employer was a friend of the father of the appellant's husband and it was as a result of this connection that the appellant's husband was recruited. The documents were a contract of employment, which was signed on 30 June 2009, described itself as a ‘pro forma’, wage slips and letters from HM Revenue & Customs regarding the business and National Insurance contributions.

10

Secondly, the evidence about the business and employer was as follows. The employer claimed he established the business in June 2009 and employed the appellant's husband soon thereafter. The employer said that he did not have knowledge of the building industry but relied on the appellant's husband who could undertake brickwork and plastering. The employer explained that he had changed the business address to his home address. The employer confirmed there was no employer's or public liability insurance. The employer confirmed he was not a member of a trade organisation. The employer confirmed there was no evidence of the business having secure premises to store equipment and materials for the business. The employer confirmed there was no evidence of the company having any transport. The employer admitted that he did not have any documents showing profit or loss for the period from when the business started up to the date of hearing (20 January 2010). He only had receipts for small items purchased and some rough working papers.

11

Thirdly, there were allegations about the existence of the business. The Secretary of State alleged that the company was not traceable at Companies House. The employer explained that because he was a sole proprietor he did not need to register. The Secretary of State...

To continue reading

Request your trial
24 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT