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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> OA (Prisoner - Not a qualified worker) Nigeria [2006] UKAIT 00066 (01 August 2006) URL: https://www.bailii.org/uk/cases/UKIAT/2006/00066.html Cite as: [2006] UKAIT 66, [2006] UKAIT 00066 |
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OA (Prisoner - Not a qualified worker) Nigeria
[2006] UKAIT 00066
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 21 July 2006
Date Determination notified: 1 August 2006
Before
Between
OA | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
DETERMINATION AND REASONS
A serving prisoner is not a worker for the purposes of the Immigration (European Economic Area) Regulations 2000 or 2006 and a spouse is not, therefore, entitled to a residence card.
Introduction the procedural history
"1. At paragraph 5 the Immigration Judge wrote: 'I told the parties that I would not consider the interview transcript or the report dated 17 May 2005 in so far as it was a source of facts.' The aforementioned report was the only source of evidence before her stating that the appellant's spouse was imprisoned. However, at paragraph 17 and 18 she gave as her reasons for dismissing the appeal the fact that the appellant's husband, being a detainee, could not be a 'qualified person' under the Immigration (EEA) Regulations 2000. This contradictory approach to the evidence and to the issue of whether it was right to exclude such evidence (even though going on to rely on it) amounts to a material error of law.
2. I agree with the parties that I am not in a position to deal with the second-stage reconsideration at this stage, as it is clearly relevant for there to be evidence presented and considered as to (1) the relationship between the appellant and her husband, and (2) his economic activities in the United Kingdom, prior to being imprisoned and whilst in prison."
The Immigration (European Economic Area) Regulations 2006 (S.I. 2006 No. 1003)
"15. We need only add that the previous statutory regime, contained in the Immigration (European Economic Area) Regulations 2000 (SI 2000/2326 as amended) is for present purposes entirely revoked with no savings or transitional provisions.
16. The first thing that is apparent is that the new Regulations came into force immediately on 30 April 2006, and that the previous law is no longer in effect. The effect on existing decisions and appeals is quite remarkable: they are to be treated as decisions and appeals under the new Regulations. The consequence may be that a decision lawful when it was made, and a determination by the Tribunal containing no error of law when it was made, may now disclose an error of law because of the retrospective change of the decision and its authority.
17. Those considerations apply directly in relation to decisions under the previous Regulations and appeals against EEA decisions under those Regulations."
The appellant is a spouse
The Immigration Judge's determination
"I find that Mr R is not a qualified person because he is imprisoned and there is no evidence before me that he is engaged in an economic activity, or ever was, other than paragraph 3 of the statement of Mr R which simply states that he was employed."
The facts
Qualified person
6. (1) In these Regulations, "qualified person" means a person who is an EEA national and in the United Kingdom as
(b) a worker;
(2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if
(a) he is temporarily unable to work as the result of an illness or accident;
(b) he is in duly recorded involuntary unemployment after having been employed in the United Kingdom, provided that he has registered as a jobseeker with the relevant employment office and
(i) he was employed for one year or more before becoming unemployed;
(ii) he has been unemployed for no more than six months; or
(iii) he can provide evidence that he is seeking employment in the United Kingdom and has a genuine chance of being engaged;
(c) he is involuntarily unemployed and has embarked on vocational training; or
(d) he has voluntarily ceased working and embarked on vocational training that is related to his previous employment.
14. (1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.
(2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national.
The relevance of past work when considering whether an EEA national is a qualified person
Whether a person serving a sentence of imprisonment who works is a qualified person
"Working in Prison
Work can play a fundamental role in providing valuable skills and qualifications that help prisoners get a job once they are released. As part of the induction process, each prisoner's suitability and preference for work is assessed.
Throughout their stay in prison, prisoners' achievements and needs are recorded and monitored to ensure that, as far as resources allow, each prisoner follows a constructive work plan. Educational and training needs are considered and many allow prisoners to attain recognised qualifications, for example National Vocational Qualifications.
Type of work available
The type of work available varies in each prison depending on the availability of resources and security and control requirements. Normally, work is available in industrial workshops and/or land-based activity units. Work undertaken in these units is varied and can provide skills in trades such as: textiles, engineering, woodwork, printing, data entry, plastic moulding, component assembly, computer aided design, desktop publishing and employment offering practical training in rural activities, fresh produce production, protected cropping, amenity horticulture and landscaping leading to formal qualifications.
Other work is available within the prison, such as catering, cleaning and general building and maintenance work.
Pay
Rates of pay vary depending on resources, the amount and type of work available at each prison.
European jurisprudence
Tribunal case law
Working in prison
(i) those prisoners who work in prison carrying out unpaid domestic duties;
(ii) those prisoners who are unable to work because there are not facilities to do so within the prison or because security considerations act as a practical bar upon work;
(iii) those prisoners who carry out non-productive work for therapeutic purposes;
(iv) those prisoners who carry out work as part of a training or rehabilitation programme;
(v) those prisoners incapable of work.
Conclusion
Article 8
DECISION
(1) The original Tribunal made a material error of law.
(2) The following decision is accordingly substituted:
a. The appellant's appeal is dismissed under the Immigration (European Economic Area) Regulations 2006,
b. The appellant's appeal is dismissed on human rights grounds.
ANDREW JORDAN
SENIOR IMMIGRATION JUDGE