RP (EEA Regs – worker – cessation)
| Jurisdiction | England & Wales |
| Judge | Dr H H Storey,Senior Immigration Judge |
| Judgment Date | 10 March 2006 |
| Neutral Citation | [2006] UKAIT 25 |
| Court | Asylum and Immigration Tribunal |
| Date | 10 March 2006 |
[2006] UKAIT 25
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Dr H H Storey (SENIOR IMMIGRATION JUDGE)
Mr Geraint Jones QC (IMMIGRATION JUDGE)
For the Appellant: Miss C Bayati, Counsel, instructed by Scudamores Solicitors
For the Respondent: Miss J Webb, Home Office Presenting Officer
RP (EEA Regs — worker — cessation) Italy
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1. A person who has been a worker within the meaning of Community law does not cease to be a worker simply by virtue of falling unemployed, but he must be able to show that he has been genuinely seeking work and has not effectively abandoned the labour market.
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2. In assessing whether a person has satisfied the condition that he is or has remained a worker, the national court must base its examination on objective criteria and assess as a whole all the circumstances of the case relating to the nature of both that person's activities whilst in the Member State and any employment relationship(s) at issue.
The appellant is an Italian national born on 8 July 1967. He arrived in the UK on 30 April 1999. On 4 December 2004 he applied for an EEA residence permit and residence documents for his spouse and dependant. On 7 June 2005 the respondent decided to refuse to issue a residence permit under Reg 29 of the Immigration (European Economic Area) (Amended) Regulations 2003; with reference to Regulation 5(1) of the Immigration (European Economic Area) Regulations 2000 (hereafter ‘the 2000 Regulations’). The appellant appealed. In a determination sent out on 19 October 2005 the Immigration Judge, Mr C.G. Kelsey, dismissed his appeal.
The appellant successfully applied for an order for reconsideration. The Immigration Judge gave two principal reasons for dismissing the appellant's appeal. Firstly the appellant had failed to furnish any evidence in response to the request by the respondent and had failed to gave a satisfactory explanation for this failure. Secondly and in any event, he did not consider the appellant had shown he was a qualified person within the meaning of Reg 5 of the 2000 Regulations. He noted that after arriving in the UK at the end of April 1999 the appellant had only worked a total of about four months since then. He continued:
‘I note from the European Court of Justice case [ C-413/01 Ninni-Orasche case] that a period of two and a half months work could confer on a person the status of a worker, providing that the activity performed was not purely marginal and ancillary. I have no information or case law to define further what might be called marginal or ancillary. In any event, the appellant clearly needs to comply with paragraph 5 of the 2000 Regulations, and to bring himself within those regulations. The appellant has not satisfied me that he has not ceased to be a qualified person. To prove that he is still qualified he would need to show that he is temporarily incapable of work and as a result of illness or accident, or show that he is involuntarily unemployed. The evidence appears to show that the appellant has been claiming incapacity benefit for over two and a half years. I would not normally consider that to come within the definition of “temporarily incapable”. The appellant has not provided any information from a medical practitioner or a report, showing what his incapacity is or when he might be fit again for work. Nor can the appellant in my view satisfy the burden of proof in showing that he is involuntarily unemployed. The evidence produced as to his efforts to obtain work are few in number and totally inconclusive. There is no evidence as to how many job applications he made, or interviews he attended.’
By virtue of the appellant's appeal failing, the Immigration Judge considered that the appeals of his dependants also failed. In the case of the appellant's partner, she failed for the additional reason that she was not a spouse.
The grounds of reconsideration contended that the Immigration Judge erred in law in failing to find that the appellant was a qualified person within the meaning of Regulations 5 and 15 of the 2000 Regulations. The grounds break down into three principal ones. The first ground placed focus on the appellant being regarded as a worker. Given that the Immigration Judge had accepted the appellant worked full time for a total of four months, he was wrong to consider that case law on whether part-time work was ‘marginal and ancillary’ was relevant. The second ground looked at the treatment by the Immigration Judge of the position of the appellant at the date of decision. Had the Immigration Judge recognised that the appellant had continued to be a worker until he was awarded incapacity benefit, he would then have been obliged to accept that at the date of decision the appellant was involuntarily unemployed by virtue of his medical condition, which prevented him from taking up employment. Further, the evidence showed that previously he had applied for jobs albeit he had not been selected.
The third ground was set out as follows:
‘In any event, even if the appellant is “permanently incapable” to work as the judge speculated (paragraph 17), the applicant is entitled to [a] residence permit under 257(iii) of the Immigration Rules. The rule says: ‘… the following persons will be permitted to remain in the UK indefinitely … an EEA national who has been continually resident in the United Kingdom for at least two years, and who has ceased to be employed owing [to] a permanent incapacity for work.’ The appellant has been in the UK for more than two years and receiving incapacity benefit after he had worked for four months in the UK”.’
Before proceeding further we should set out the relevant provisions of the Immigration (European Economic Area) Regulations 2000. Regulation 5 states:
“‘ Qualified person’
(1) In these Regulations, ‘qualified person’ means a person who is an EEA national and in the United Kingdom as –
(a) a worker;
(b) a self-employed person;
(c) a provider of services;
(d) a recipient of services;
(e) a self-sufficient person;
(f) a retired person;
(g) a student; or
(h) a self-employed person who has ceased activity; or who is a person to whom paragraph (4) applies.
(2) A worker does not cease to be a qualified person solely because –
(a) he is temporarily incapable of work as a result of illness or accident; or
(b) he is involuntarily unemployed, if that fact is duly recorded by the relevant employment office.
(3) A self-employed person does not cease to be a qualified person solely because he is temporarily incapable of work as a result of illness or accident.
(4) This paragraph applies to –
(a) the family member of a qualified person referred to in paragraph (1)(h), if –
(i) the qualified person has died; and
(ii) the family member was residing with him in the United Kingdom immediately before his death;
(b) the family member of a qualified person referred to in paragraph 1(b) where—
(i) the qualified person has died;
(ii) the family member resided with him immediately before his death; and
(iii) either—
(aa) the qualified person had resided continuously in the United Kingdom; or
(bb) the death was the result of an accident at work or an occupational disease; or
(cc) his surviving spouse is a United Kingdom national.’
(5) For the purposes of paragraph (4)(b), periods of absence from the United Kingdom which do not exceed three months in any year or periods of absence from the United Kingdom on military service are not to be taken into account.’
The 2000 Regulations implement a number of EU instruments relating to the freedom of movement of workers and related categories. At paragraph 3(1)(a) they state that ‘In these Regulations – (a) ‘worker’ means a worker within the meaning of Art 39 of the EC Treaty’.
We should perhaps mention that as from 30 April 2006 almost all of these provisions are to be repealed and replaced by Directive 2004/38/EC on the right of citizens of the Union and their families to move and reside freely within the territory of the Member States amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 90/364/EEC, 90/365/EEC, 93/96/EEC: for text see Phelan pp. 1034–1059.
We do not consider that the Immigration Judge erred in law in his analysis of the appellant's working history. He can be criticised for failing to spell out in what way the ECJ case law on work which was ‘marginal and ancillary’ applied to the facts of this case. But in our view he was right to treat such case law as relevant. The assertion that such case law is exclusively confined to part-time work is untenable. The ECJ formulation of the ‘marginal and ancillary’ test treats it as a test to be made of work of all kinds. Thus, for example, in Case 197/86 Brown v Secretary of State for Scotland [1988] ECR 3205 (para 21) it is stated:
‘The concept of a worker within the meaning of Article 8 of the Treaty and of Regulation No. 1612/68 has a Community meaning. Any person who pursues an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, is to be treated as a worker’.
Certainly the ‘marginal and ancillary’ test has obvious and particular application to part-time work, but the way in which the ECJ has formulated the ‘genuine and effective’ test plainly does not confine it to that.
However, we consider that the Immigration Judge did err in law in his approach to the appellant's position in relation to Article 5 of the 2000 Regulations. He purported to dismiss the appeal under 5(2) because he considered the appellant could not bring himself within the definition of a...
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