Upper Tribunal (Immigration and asylum chamber), 2007-08-03, [2007] UKAIT 75 (AG and others (EEA - jobseeker, self-sufficient person - proof))
| Jurisdiction | UK Non-devolved |
| Judge | Senior Immigration Judge Storey, Senior Immigration Judge Grubb |
| Status | Reported |
| Date | 03 August 2007 |
| Published date | 06 August 2007 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 19 June 2007 |
| Subject Matter | EEA - jobseeker, self-sufficient person - proof |
| Appeal Number | [2007] UKAIT 75 |
Asylum and Immigration Tribunal
AG and others (EEA-jobseeker-self-sufficient person-proof) Germany [2007] UKAIT 00075
THE IMMIGRATION ACTS
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Heard at Field House |
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On 19 June 2007 |
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Before
SENIOR Immigration Judge STOREY
SENIOR IMMIGRATION JUDGE GRUBB
Between
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the appellants: Mr K Idowu, Solicitor, Kola Fitzpatrick & Co
For the respondent: Mr G Saunders, Home Office Presenting Officer
(i) To qualify as a “jobseeker” under reg 6(1)(a) of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) an EEA national must meet all three requirements set out at reg 6(4), including that he be a person who entered the United Kingdom in order to seek employment.
(ii) A person who is a jobseeker can also qualify as a “worker” under reg 6(1)(b) but the requirements applied by ECJ case law in respect of workers-as-jobseekers are essentially the same as those set out in reg 6(1)(a).
(iii) In considering what period of time a jobseeker has to find work, 6 months may be a general rule of thumb, but there is no fixed time limit. The ECJ in Antonissen [1991] ECR I-745, Case C-344/95 decided that the period must be a “reasonable period” and the assessment of what is “reasonable” must be made in the context of each individual case. Thus it may sometimes be less, sometimes more, than 6 months. In all cases, however, the period in question must start from the date of the person’s arrival in the United Kingdom.
(iv) To satisfy the self-sufficiency requirement of the EEA Regulations, under reg 4(4) the resources of a family member cannot be aggregated with those of the EEA national where those resources are derived from past employment of that family member: W(China) and X(China) [2006] EWCA Civ 1494, GM and AM [2006] UKAIT 00059 and MA and others [2006] UKAIT 00090 applied.
(v) The burden of proof is on the applicant/appellant to establish any EEA right of admission or residence. A failure to substantiate any such right - for example by failing to produce relevant evidence – is likely to mean that the claim/appeal will fail.
DETERMINATION AND REASONS
1. The first appellant is a citizen of Germany born on 18 December 1963. The second and third appellants are his wife, born on 19 September 1970 and child born on 13 May 1988. They are citizens of Sierra Leone and Nigeria respectively. This is a reconsideration of the determination of Immigration Judge Saffer notified on 6 March 2007 dismissing their appeals against decisions dated 22 January 2007 refusing to issue the first appellant with a registration certificate and refusing to issue the second and third appellants with a residence card as confirmation of their right of residence in the United Kingdom under European Community law. The outcome of the second and third appellants’ applications for reconsideration is dependent on the first appellant’s application.
2. The immigration judge’s findings of fact were as follows:
“10. I do not accept that the first appellant is a worker as defined as he has never worked here. Just because he has sought employment does not mean he is a worker. He has not fallen unemployed as he has never been employed.
11. Even if I am wrong in that he has relied on social assistance following the death of his father as he paid the subsidised pensioners rent to which he was not entitled for 4 months which saved him almost £2000 being almost the total amount of the combination of his savings and his wife’s income. Without that reliance on subsidised rent to which he was not entitled they would have no savings at all. He is not therefore self-sufficient.”
3. The grounds for reconsideration contend that the immigration judge materially erred in law at para 10 in that his interpretation of the term “worker” wrongly excluded someone who (like the first appellant) was a jobseeker. The grounds also argue that the immigration judge was wrong to find at para 11 that the first appellant had relied on social assistance and wrong to conclude that the appellant’s savings taken together with his wife’s earnings did not make him self-sufficient.
The relevant facts
4. Not for the first time in an EEA appeal the evidence produced by the appellants as to their circumstances was relatively scant, but the following seems uncontentious. The first and second appellant married in Nigeria on 2 May 2000. The first appellant had lived in Germany as a self-employed person. He gave no information about his previous visits to the UK and left blank the section in the EEA1 application form (para 1.7) asking for the date on which he last entered the UK. The same form at para 2.1. stated that the date on which his wife, the second appellant, last entered the UK was 7 June 2006 and the date on which his son, the third appellant, last entered was 2 March 2006. Mr Idowu said that the first appellant’s case has always been that he last entered the UK in “July 2006”; he was unable to help with any specific date in that month.
5. Whatever the precise date on which the first appellant last entered the UK, it is known that he applied for a registration certificate for himself and a residence card for his wife and child on 7 August 2006. Enclosed with their application was a marriage certificate, a birth certificate, a German ID card, a valid Sierra Leone passport in respect of the second appellant and a valid Nigerian passport in respect of the third appellant. On 17 August 2006 the Home Office wrote to the first appellant saying that to enable the application to be considered he should forward within 21 days:
“Evidence that he was exercising Treaty rights in the United Kingdom in one of the following ways; i.e. recent wage slip and employer’s letter;
Recent bank statement, utility bill, council tax bill, school letter for […]”.
6. The first appellant made no reply to this request and on 20 January 2007 the Home Office issued decisions refusing all three applications. The reason stated in the notices of refusal was that the first appellant had failed to provide evidence that he was a qualified person as set out in reg 6 of the 2006 Regulations.
7. By the time of the hearing of their appeal the appellants had adduced further evidence. Contrary to Tribunal directions no witness statements were submitted, but the first appellant gave oral evidence. In his determination Immigration Judge Saffer recorded the first appellant’s evidence as follows:
“8.The first appellant gave no details of any employment in his application. He produced bank statements for November 2006 to January 2007 showing a balance at the date of decision of about £2000, correspondence outlining his attempts to obtain work as a driver of public transport, and his wife’s pay slips.
9. In evidence he said that he began looking for work in October 2006. The money in his account comes from his wife’s earnings of £225 per week and his savings which came from his business in Germany which is no longer subsisting. After they came here they lived in his father’s council flat even after he died in August and paid the £9 per week subsidised pensioners rent until they had to move out in January. They now pay rent of £500 per month.”
8. Besides the bank statements and the second appellant’s wage slips the appellants produced 5 documents in time for the hearing before the immigration judge. One was a printed form from Jobseekers Plus headed “DPA 2: Storing your personal information”. It did not anywhere identify the first appellant and bore no date. It began with the words: “You recently provided verbal consent to allow Jobcentre Plus to store your personal information on our computer systems. This form provides you with further details about how your information is processed and used”. The other 4 items were letters addressed to the first appellant. Two of these were from Arriva London bus company dated September 2006 and 21 November 2006 respectively. The September letter thanked him for contacting them regarding employment as a full time bus driver, set out the basic requirements he must have to be considered for the post of trainee bus driver and enclosed an application form together with an information pack. The 21 November letter thanked him for his application and stated that he had been successfully short-listed but that the company did not require new drivers at the moment and was putting recruitment for new drivers on hold. It said that it hoped to contact him within the next few months. The two letters from London Central bus company were dated 19 September 2006 and 29 December 2006 respectively. The September letter thanked him for returning his completed form in support of his application for employment as a trainee bus driver Stockwell 06, but said it regretted that the company was unable to offer him employment. The December letter thanked him for his completed form and went on to say that under the company’s current recruitment policy (which included holding a valid full UK driving license for a minimum period of 2 years (12 months if the person has exchanged a foreign license for a UK license)), he did not appear to meet their minimum criteria. It...
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