Shitalben Nagargiri Gauswami (Anonymity Direction not Made) v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Lane,Rimington |
| Judgment Date | 02 May 2018 |
| Neutral Citation | [2018] UKUT 275 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 02 May 2018 |
[2018] UKUT 275 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE HON. Mr Justice Lane, PRESIDENT
UPPER TRIBUNAL JUDGE Rimington
For the appellant: Ms B Asanovic, instructed by Markand & Co Solicitors
For the respondent: Mr P Deller, Senior Home Office Presenting Officer
Gauswami (retained right of residence: jobseekers) India
For the purposes of determining retained rights of residence, in regulation 10(6)(a) of both the Immigration (European Economic Area) Regulations 2006 and the Immigration (European Economic Area) Regulations 2016, the reference to a worker includes a jobseeker.
The appellant is a citizen of India, who was born on 21 November 1985. On 16 June 1998, Mr V, a Portuguese citizen, who was to become the appellant's husband, arrived in the United Kingdom and exercised EU Treaty rights in this country. On 6 September 2006, Mr V became a British citizen by naturalisation.
On 20 July 2008, the appellant and Mr V were married in India. Later that year, the appellant came to the United Kingdom, with the requisite family permit, as the spouse of Mr V. The permit was valid until 20 May 2009.
On 26 October 2009, the appellant was granted a residence card by reason of her being the spouse of an EEA national. The card was valid until 26 October 2014.
According to the appellant's witness statement, there were problems with the marriage. As we shall see, there is an issue as to whether the appellant was subjected to domestic violence at the hands of Mr V. It is, however, not disputed that on 2 October 2011, the appellant was persuaded or as she says “duped” by Mr V into travelling to India. Upon arriving in that country, the appellant was told by her mother-in-law that Mr V was going to divorce her; that what was described as her “visa” had been cancelled; and that she could not return to the United Kingdom.
Nevertheless, on 21 March 2013 the appellant returned to the United Kingdom in order to seek a reconciliation with her husband. The appellant stayed with a friend, Mrs G, between 21 March and 10 July 2013. The appellant said that she was exploited by Mrs G, who compelled the appellant to “work like a slave”. In July 2013, the appellant returned to India. In March 2014, however, Mrs G telephoned the appellant in India to tell her that “she had received my divorce papers”. The appellant became “very upset and worried about my marriage” and accordingly returned to the United Kingdom. Having nowhere else to go, she again stayed with Mrs G. The appellant was compelled to sign a letter saying that she was being paid £10 an hour by Mrs G and was also required to sign a tenancy agreement. In reality, the appellant was not paid anything. Mrs G also accused the appellant of stealing money from her.
The appellant says that, in May 2014, she approached an organisation that assists victims of domestic violence and reported her husband's behaviour to them.
Mr V had, indeed, instituted divorce proceedings against the appellant. His petition for divorce was filed on 23 October 2013. The decree absolute was issued on 29 April 2014.
On 25 April 2014, five days before the decree absolute, the appellant entered into a jobseeker's agreement with an official of the Secretary of State for Work and Pensions. She began receiving jobseeker's allowance on 2 May 2014. She remained in receipt of this allowance until she secured employment on 1 October 2014. The appellant continues in that employment.
On 2 September 2015, the respondent refused the appellant's application for a residence card as confirmation of her right of residence as the ex-spouse of an EEA national exercising Treaty rights in the United Kingdom. The appellant appealed against that decision. Following a hearing at Taylor House on 27 September 2016, First-tier Tribunal Judge C M Phillips dismissed the appellant's appeal. Permission to appeal to the Upper Tribunal was refused by the First-tier Tribunal and by the Upper Tribunal. However, the Upper Tribunal's refusal of permission was quashed following a grant of permission by Walker J to bring judicial review proceedings to challenge that decision. Permission to appeal was subsequently granted by the Upper Tribunal.
Before turning to the First-tier Tribunal Judge's decision and the submissions made regarding it, we must set out the relevant legislative provisions and refer to the relevant case law.
Article 45 of the Treaty on the Functioning of the European Union (“the Treaty”) provides as follows:-
“Article 45
1. Freedom of movement for workers shall be secured within the Union.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.
4. The provisions of this article shall not apply to employment in the public service.”
It is also necessary to mention Article 21, the relevant part of which provides as follows:
“Article 21
1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.”
The relevant provisions of Directive 2004/58/EC of the European Parliament and of the Council (“the 2004 Directive”) are as follows:-
“ Recitals
…
(9) Union citizens should have the right of residence in the host Member State for a period not exceeding three months without being subject to any conditions or any formalities other than the requirement to hold a valid identity card or passport, without prejudice to a more favourable treatment applicable to jobseekers as recognised by the case-law of the Court of Justice.
…
CHAPTER III
RIGHT OF RESIDENCE
Article 6
Right of residence for up to three months
1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.
2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.
Article 7
Right of residence for more than three months
1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
(a) are workers or self-employed-employed persons in the host Member State; or
(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or
(c) are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and
— have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or
(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).
2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).
3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:
(a) he/she is temporarily unable to work as the result of an illness or accident;
(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a jobseeker with the relevant employment office;
(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a jobseeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months.
(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.
4. By way of derogation from paragraphs 1(d) and 2 above, only the spouse, the registered...
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