Upper Tribunal (Immigration and asylum chamber), 2013-06-24, [2013] UKUT 315 (IAC) (Shabani (EEA - jobseekers; nursery education))

CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeDr HH Storey, Mr P R Lane, Mr C G Ward
Hearing Date21 December 2012
Published date05 July 2013
Appeal Number[2013] UKUT 315 (IAC)
Date24 June 2013
subjectMatterEEA - jobseekers; nursery education

Upper Tribunal

(Immigration and Asylum Chamber)

Shabani (EEA - jobseekers; nursery education) [2013] UKUT 00315 (IAC)


Heard at Field House

Determination Promulgated

On 21 December 2012













For the Appellant: Mr L Jegede, Solicitor, OJN Solicitors

For the Respondent: Mr P Deller, Senior Home Office Presenting Officer

1. Although the question whether Article 7(3) of Directive 2004/38/EC deals exhaustively with the circumstances in which a jobseeker can retain the status of a worker in EU law has been held by the Supreme Court in Saint Prix v Secretary of State for Work and Pensions [2012] UKSC 49 to require a reference to the Court of Justice, a woman who has left the labour market in order to look after children does not retain her status as a worker in EU law: Secretary of State for Work and Pensions v Dias [2009] EWCA Civ 807 applied.

2. The effect of the concession made by the Secretary of State in the course of the present case (after consultation with the Department for Work and Pensions and HM Revenue and Customs) is that a person who has been employed but after falling unemployed seeks employment again (i.e. a “second-time” jobseeker) can potentially fall within regulation 6(4) of the Immigration (European Economic Area) Regulations 2006 applying the twofold test set out in Antonissen C-393/96 P(R) [1997] ECR 1-441.

3. A further concession made by the Secretary of State in the course of the present case is that for the purposes of new regulation 15A of the same Regulations (if not also as a matter of Court of Justice jurisprudence) the primary carer of the child of an EEA national/Union citizen who has been employed in the host Member State is entitled to a derivative right of residence once that child has entered into reception class education. The Secretary of State has indicated that the definition of “education” is to be reviewed.


1. We apologise for the time it has taken to promulgate this decision; as will become clear there were two matters of law on which we sought clarification from the Secretary of State as to her position and which required her to undertake interdepartmental consultation. That does not account for all of the delay but does for much of it.

2. The appellant is a citizen of the Democratic Republic of Congo (DRC). On 23 December 2010, whilst in the UK on a visit visa due to expire in February 2011, he applied for a residence card as the spouse of a French national exercising EEA national Treaty rights. He submitted, inter alia, a certificate of marriage with Jolie Mantezolo dated 19 November 2010. (He had divorced his previous wife in April 2010). Ms Mantezolo had arrived in the UK in 2004 to seek work. She had worked for a period of two years commencing on 23 October 2006 as a shop assistant with a company called Peacocks. She had taken maternity leave in May 2008; it ended on 1 June 2009. She did not return to work after the birth of her first child, K, on 30 July 2008 and, after the birth of her second child, G, on 7 December 2010, she decided to look after her two children rather than work in paid employment. She and her children being French nationals they are also, of course Union citizens/EEA nationals.

3. On 1 April 2011 the respondent made a decision refusing his application. The refusal letter noted that the appellant had submitted evidence to show that his EEA sponsor wife was in receipt of income support and child tax credits, which are public funds. He had therefore failed to demonstrate that his EEA sponsor, a qualified person, was working or able to support herself and the appellant without becoming a burden on public funds. The respondent was also satisfied the decision did not violate the appellant’s Article 8 rights.

4. The appellant’s appeal was heard by First-tier Tribunal (FtT) Judge Black. In a determination sent on 4 June 2011 Judge Black dismissed his appeal. The judge’s principal findings included that the appellant had not shown his wife was a qualified person either by virtue of being a worker under regulation 6(1)(b) of the Immigration (European Economic Area) Regulations 2006 No.1003 (as amended) (“the 2006 EEA Regulations”) or under regulation 6(1)(a) as a jobseeker. The judge accepted that the sponsor had made an application for jobseeker’s allowance (“JSA”) and had been in receipt of this benefit from 15 April 2011, but considered this was immaterial because she had made this application “merely going through the motions in order to bolster the appellant’s prospects of success”. The judge also decided to dismiss the appellant’s Article 8 ground of appeal. At [24] she found that the appellant could move back to France or to Belgium where he had worked previously and that it would not be unreasonable for his wife and children to go with him.

5. The legal provisions relevant to this case are to be found in Directive 2004/38/EC (the Citizenship Directive), the 2006 EEA Regulations and Article 12 of Regulation 1612/68 (now Regulation 492/2011). We set these out in Appendix A but would flag in advance, as regards the 2006 EEA Regulations, that these were amended with effect from 16 July 2012 by the Immigration (European Economic Area) Amendment Regulations 2012 SI No. 1547. The amending regulations add a new regulation 15A, part of whose purpose was to give effect to the recognition by the Court of Justice of a derived right of residence for primary carers of children in education by virtue of Article 12, Regulation 1612/68.

6. On 2 April 2012 Upper Tribunal Judge (UTJ) Storey found that the FtT judge had erred in law in her approach to the issue of whether the appellant was a qualified person by virtue of his wife’s recent application for and receipt of JSA. The judge had discounted this application because she considered his wife had made it solely in order to assist the appellant’s appeal. It was observed that the fact that this was her motive did not necessarily mean she did not intend to work. It was equally consistent with her resolving that she had to work in order to help her husband’s efforts to stay in the UK. In EU law the focus has to be not on a person’s reasons for seeking work but whether they genuinely intend to work (and have a genuine chance of working): see C-53/81 Levin [1982] ECR 1035. Furthermore, it did not appear that the FtT judge, in assessing whether the appellant’s wife was genuinely intending to work, treated as a relevant consideration the fact that she had previously been engaged with the labour market, having worked for two years and had then not gone back so that she could look after her children who were very young. UTJ Storey also found that the judge’s credibility findings were flawed by inconsistent findings on the status of the appellant’s relationship. Despite appearing to accept that the appellant and his wife were in a genuine marriage (i.e. not a marriage of convenience) and had two children together, the judge appeared to discount the family relationship for the purposes of establishing that she was the spouse of an EEA national by reference to her view that “the marriage may be for the purpose of enabling the appellant to acquire the right to reside in the UK”. In EU free movement law, once it is accepted a marriage is not one of convenience, the fact that one of its purposes may have been to assist one of the parties to acquire EU rights of residence is not relevant. All that matters is that the relationship is a genuine one and that the marriage has not been terminated: see Diatta v Land Berlin [1985] ECR 567.

7. Having set aside the judge’s determination, UTJ Storey gave directions to the effect that the parties address their minds to the question of whether the appellant qualified as the family member of an EEA national exercising Treaty rights by virtue of his wife’s current situation. Submissions were directed on whether she qualified either as a jobseeker under regulation 6(1)(a) or a worker under regulation 6(1)(b). In relation to regulation 6(1)(b) it was observed that jurisprudence of the Court of Justice had made clear that in certain circumstances a jobseeker could qualify as a worker: see Antonissen C-393/96 P(R) [1997] ECR 1-441. It was noted that the re-making hearing would be before a senior panel including an Upper Tribunal Judge of the Administrative Appeals Chamber (AAC).

8. A hearing fixed for 19 June 2012 was adjourned because contrary to directions no skeleton arguments had been produced by either side, and because the appellant’s solicitor, Mr Obi Nwokeji, had been taken ill at short notice and was unable to attend and the Tribunal considered the appellant would...

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