Upper Tribunal (Immigration and asylum chamber), 2015-07-15, IA/13775/2013 & Ors.

Appeal Numbers: IA/13775/2013, IA/13778/2013,

IA/13780/2013 & IA/13790/2013

IAC-AH-pc-V1

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Numbers: IA/13775/2013

IA/13778/2013, IA/13780/2013

& IA/13790/2013

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE STOREY

UPPER TRIBUNAL JUDGE RINTOUL

Between

Ms Halimo Yusuf

Miss Hayat Mohamed

Master Yusuf Mohamed

Master Abdihakim Mohamed

Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Fouladvand, Legal Representative

For the Respondent: Ms S Wise, solicitor (Treasury Solicitors)

and Mr P Deller, Presenting Officer

DETERMINATION AND REASONS

1. The first appellant (hereafter the appellant) is a citizen of the Netherlands born on 15 November 1966. She is the mother of the second to fourth appellants born on 3 December 1991, 21 August 1993 and 18 December 1997 respectively. They appeal with permission against the determination of First-tier Tribunal Judge Blum promulgated on 28 October 2013 in which he dismissed their appeals against the decision of the respondent who, on 23 April 2013, refused to issue them with documents confirming their right of permanent residence in the United Kingdom, pursuant to regulations 15 and 17 of the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”).

2. The appellants arrived in the United Kingdom in 2005 and have lived here ever since. The appellant first secured a job on 24 September 2009, having attended training course on three previous occasions from 11 June 2007 to 14 September 2007, 14 April 2008 to 25 July 2008 and 15 March 2009 to 18 May 2009. It is the appellant’s case that the first appellant has, since October 2005 been a qualified person as defined within the EEA Regulations, initially as a jobseeker from October 2005 and since 24 September 2009, as a worker. The second to fourth appellant’s case is that they have at all material times been the dependent children of a qualified person. They argue that consequently, they have been lawfully resident in accordance with the EEA Regulations for in excess of five years, and so, have acquired the right of permanent residence. It was on that basis that on 12 March 2013 they applied for documents certifying their right of permanent residence, pursuant to regulations 15 and 18 of the EEA Regulations.

3. The respondent refused the applications on the basis that the appellants had not resided in the United Kingdom in accordance with the Immigration (European Economic Area) Regulations 2006 for a continuous period of five years. No further details were given.

4. On appeal, Judge Blum stated that while a jobseeker can be a qualified person, that requires the provision of evidence that the individual is seeking employment and has a genuine chance of being engaged. Judge Blum found that the appellant:-

1. had entered the United Kingdom in October 2005 to seek employment and had thus entered as a jobseeker [22];

2. had not worked prior to commencing employment in September 2009 [22];

3. had provided no evidence of seeking employment other than her word and although she did try to obtain employment when she first entered in October 2005, she was unable to do so for a period of three years and eleven months [23] and therefore he could not be satisfied that she had a genuine chance of being engaged when she entered the UK or throughout the period she was looking for work;

5. In respect of the second appellant, Judge Blum found:

1. her claim was dependent on that first appellant [24] and thus failed; or, in the alternative,

2. her claim on the basis that she was a student failed given the absence of evidence of comprehensive sickness insurance in the United Kingdom as required by regulation 4 of the EEA Regulations [24].

Judge Blum therefore dismissed the appeals under the EEA Regulations and on human rights grounds.

6. The appellants sought permission to appeal on the grounds that the First-tier Tribunal:-

1. failed to have proper regard to the appellant’s record of national insurance contributions and credits indicating that she had entered the system on 10 November 2005 and was a jobseeker for twelve weeks in 2006/7, remaining a jobseeker until the 32^nd week of 2009/10 [ground 1A];

2. erred in concluding that regulation 6(2) of the EEA Regulations requires that someone could not be treated as a jobseeker unless he had previously been in employment [ground 1A]; and,

3. erred in finding that the first appellant had not worked in 2006 in preferring the evidence of HMRC over that of her daughter [ground 1B].

7. On 13 December 2013 Upper Tribunal Judge Storey granted permission stating:-

“It is arguable that the First-tier Tribunal did not adopt an analysis in accordance with case law principles by reference to which the first appellant’s situation should have been considered not just in relation to whether she was a jobseeker but whether she was a worker who continued to be a worker after becoming again a jobseeker. The parties will be expected to have regard to all relevant case law including Shabani v SSHD (EEA – jobseekers; nursery education)[2013] UKUT 315”.

8. There have been a number of case management hearings in these appeals which were previously linked to those stayed pending the decision of the Court of Justice in Jessy St Prix v SSWP [2014] CJEU C-507/12.

The hearing

9. Mr Fouladvand submitted that the first appellant had been a worker, a status she had retained pursuant to regulation 6(2) and that she had retained her status whilst in receipt of Job Seekers Allowance (“JSA”) and while undergoing approved training on the three occasions – 11 June 2007 to 14 September 2006, 14 April to 25 July 2008 and 15 March 2009 to 18 May 2009 - as identified in the letter from Jobcentreplus dated 7 April 2014. He submitted that she had been a worker when she entered (as a jobseeker), and had not lost that status, and, alternatively that the finding she had not worked was not one open to the First-tier Tribunal.

10. Ms Wise submitted that the appellant had not been a “worker” prior to commencing employment in September 2009. On that basis regulation 6(2) was not engaged and that there was no reason to overturn the findings of fact made by Judge Blum in particular at [23]. She submitted further that the attendance at approved training could not be equated with employment given there was no contract of employment and no evidence of payment of wages and whilst JSA and credits were given, with a slight top-up being offered as an incentive, this did not equate to work and thus somebody attending training could not be seen as “worker”.

11. Ms Wise submitted further that there was adequate evidence for the conclusion that the first appellant had no genuine chance of being engaged given the length of time she had taken to find employment and also the fact that she had been required to go on three separate training courses including English for the Speakers of Other Languages (“ESOL”).

12. In reply Mr Fouladvand submitted that even were the appellant not to have been found to be a worker prior to her start of employment in September 2009, she was nonetheless a qualified person as a jobseeker.

13. It was agreed that we would accept further written submissions on the nature of approved in training but we received submissions from the respondent alone.

Our Assessment

14. The question of whether or not the appellants had resided in accordance with the EEA Regulations turns on whether the appellant had been a “qualified person” for the relevant period. It is not submitted that she met that definition other than as a “worker” or “jobseeker”.

15. The starting point for our analysis of the law is the EEA Regulations which transpose Directive 2004/38/EC (“the Citizenship Directive”) into domestic law. The EEA Regulations define “worker” for their purposes as meaning a worker within the meaning of Article 39 TFEU (now article 45).

16. We bear in mind that in analysing the EEA Regulations, we are assessing the law as it was on 28 October 2013, the date of the First-tier Tribunal’s decision. We note that regulation 6 of the EEA Regulations has been amended extensively since that date, by the Immigration (European Economic Area) (Amendment) (No.2) Regulations 2013 (SI 2013/3032), the Immigration (European Economic Area) (Amendment) Regulations 2014 (SI 2014/1451) and the Immigration (European Economic Area) (Amendment) (No.3) Regulations 2014 (SI 2014/2761). In each case, there are in any event transitional...