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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> AG & Ors (EEA-jobseeker-self-sufficient person-proof) Germany [2007] UKAIT 00075 (03 August 2007) URL: https://www.bailii.org/uk/cases/UKIAT/2007/00075.html Cite as: [2007] UKAIT 75, [2007] UKAIT 00075 |
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AG and others (EEA-jobseeker-self-sufficient person-proof) Germany [2007] UKAIT 00075
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 19 June 2007
Date Determination notified 03August 2007
Before
SENIOR IMMIGRATION JUDGE STOREY
SENIOR IMMIGRATION JUDGE GRUBB
Between
AG & Ors | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
For the appellants: Mr K Idowu, Solicitor, Kola Fitzpatrick & Co
For the respondent: Mr G Saunders, Home Office Presenting Officer
DETERMINATION AND REASONS
(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.
"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."
The relevant facts
"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 […]".
"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."
The relevant law
"(a)"worker" means a worker within the meaning of Article 39 of the Treaty establishing the European Community;
…
(c) "self-sufficient person" means a person who has-
(i) sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence; and
(ii)comprehensive sickness insurance cover in the United Kingdom;"
"(2) For the purposes of paragraph 1(c), where family members of the person concerned reside in the United Kingdom and their right to reside is dependent upon their being family members of that person –
(a) the requirement for that person to have sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence shall only be satisfied if his resources and those of the family members are sufficient to avoid him and his family members becoming such a burden;
(b) the requirement for that person to have comprehensive sickness insurance cover in the United Kingdom shall only be satisfied if he and his family members have such cover."
"For the purposes of paragraphs 1(c) and (d) and paragraphs (2) and (3) [which concerns a student's resources], the resources of the person concerned and, where applicable, any family members, are to be regarded as sufficient if they exceed the maximum level of resources which a United Kingdom national and his family members may possess if he is to become eligible for social assistance under the United Kingdom benefit system."
" …"qualified person" means a person who is an EEA national and in the United Kingdom as-
(a) a jobseeker;
(b) a worker;
(c) a self-employed person;
(d) a self-sufficient person; or
(e) a student."
"For the purposes of paragraph 1(a), a "jobseeker" means a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged".
"(1) An EEA national is entitled to reside in the United Kingdom for a period not exceeding three months beginning on the date on which he is admitted to the United Kingdom provided that he holds a valid national identity card or passport issued by an EEA State.
(2) A family member of an EEA national residing in the United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in the United Kingdom provided that he holds a valid passport.
(3) But-
(a) this regulation is subject to regulation 19(3)(b); and
(b) an EEA national or his family member who becomes an unreasonable burden on the social assistance system of the United Kingdom shall cease to have the right to reside under this regulation."
"(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 job-seekers as recognised by the case-law of the Court of Justice.
(10) Persons exercising their right of residence should not, however, become an unreasonable burden on the social assistance system of the host Member State during an initial period of residence. Therefore, the right of residence for Union citizens and their family members for periods in excess of three months should be subject to conditions."
"(20) In accordance with the prohibition of discrimination on grounds of nationality, all Union citizens and their family residing in a Member State on the basis of this Directive should enjoy, in that Member State, equal treatment with nationals in areas covered by the Treaty, subject to such specific provisions as are expressly provided for in the Treaty and secondary law.
(21) However, it should be left to the host Member State to decide whether it will grant social assistance during the first three months of residence, or for a longer period in the case of jobseekers, to Union citizens other than those who are workers or self-employed persons or who retain that status or their family members, or maintenance assistance for studies, including vocational training, prior to acquisition of the right of permanent residence, to these same persons."
"The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people."
"'host Member State' means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.
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 requirements 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."
"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 persons in the host Member State;
(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)… [this subparagraph covers students]
(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)."
"For the registration certificate to be issued, Member States may only require that
–Union citizens on whom point (a) of Article 7(1) applies [which concerns workers or self-employed persons] present a valid identity card or passport, a confirmation of engagement from the employer or a certificate of employment, or proof that they are self-employed persons'
–Union citizens to whom point (b) of Article 7(1) applies [which concerns self-sufficient persons] present a valid identity card or passport and provide proof that they satisfy the conditions laid down therein;
-…"
"Member States may not lay down a fixed amount which they regard as 'sufficient resources', but they must take into account the personal situation of the person concerned. In all cases this amount shall not be higher than the threshold below which nationals of the host Member State become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host Member State."
"The supporting documents required by the competent authorities for the issuing of a registration certificate or of a residence card should be comprehensively specified in order to avoid divergent administrative practices or interpretations constituting an undue obstacle to the exercise of the right of residence by Union citizens and their family members."
"1. Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.
2. Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein.
In specific cases where there is a reasonable doubt as to whether a Union citizen or his/here family members satisfies the conditions set out in Articles, 7,12 and 13, Member States shall verify if these conditions are fulfilled. This verification may not be carried out systematically.
…."
"Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there."
Our assessment
"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"
harbours a double error. Contrary to what this paragraph says, it is not a requirement of European Community law that to qualify as a "worker" one has to be a person who has worked in the host Member State. The concept includes persons who are (genuine) jobseekers: see Case C-292/89 Antonissen [1991] ECR I-745, Case C-344/95, Commission v Belgium [1997] ECR I-1035, Case C-138/02 Collins [2004] All ER (D) 424 (Mar). Secondly, despite acknowledging in para 3 that the relevant law was set out in the 2006 Regulations, the immigration judge failed to appreciate that by reg 6 the first appellant was entitled to be treated as a qualified person so long as he fell within one of 5 sub-categories, including that of "(a) jobseeker".
The first appellant's position as a jobseeker
"3.1.1 Jobseeker
A 'qualified person' may also be a jobseeker, although the EEA national must be able to show evidence that s/he is seeking employment and is also able to show a genuine chance of being engaged in employment.
We would generally expect a jobseeker to obtain employment within 6 months of beginning his/her search. It is highly likely that an individual claiming a right of residence as a jobseeker will also be exercising Treaty rights as a self-sufficient person. Jobseekers have no entitlement to access social assistance of the host member state (Article 24(2) of the Directive refers), although they may in certain circumstances be able to import benefits from their home country, which would then be paid to them in the UK by DWP (emphasis added)."
- that the applicant be someone who enters the United Kingdom in order to seek employment;
- that the applicant can provide evidence that he is seeking employment; and
-that the applicant has a genuine chance of being engaged.
"20. In accordance with the prohibition of discrimination on grounds of nationality, all Union citizen and their family members residing in a Member State on the basis of this Directive should enjoy, in that Member State, equal treatment with nationals in areas covered by the Treaty, subject to such specific provisions as are expressly provided for in the Treaty and secondary law.
21. However, it should be left to the host Member State to decide whether it will grant social assistance during the first three months of residence, or for a longer period in the case of job-seekers, to Union citizens other than those who are workers or self-employed persons or who retain their status or their family members, or maintenance assistance for studies, including vocational training, prior to acquisition of the right to permanent residence, to these same persons."
"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 duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;
(c) he/she is 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 job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;
(d)…."
"4. By way of derogation from paragraphs 1 and 2 and without prejudice to the provisions of Chapter VI, an expulsion measure may in no case be adopted against Union citizens or their family members if:
(a) the Union citizens are workers or self-employed persons,or
(b) the Union citizen entered the territory of the host member State in order to seek employment. In this case, the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged."
"The IJ failed, refused or neglected to consider the relevant provisions of Article 48 of EC Treaty and the ECJ case C-292/89, R v IAT, ex parte Antonissen (1991) ECR I - 745, (1991) 2 CMLR 373 at para 10 to the effect that the term worker covers job seekers".
"On arriving in England I tried to find employment. I have continued to look for employment seriously and repeatedly throughout the period of my arrival in October 1984 until the present".
"1.For the purpose of determining whether a national of a Member State is to be treated as a "worker" within the meaning of article 48 of the EEC Treaty when seeking employment in the territory of another Member State so as to be immune from deportation save in accordance with Council Directive 64/221 of 25 February 1964, may the legislature of the second Member State provide that such a national may be required to leave the territory of that State (subject to appeal) if after six months from admission to that territory he has failed to enter employment".
"It is not contrary to the provisions of Community law governing the free movement of workers for the legislation of a Member State to provide that a national of another Member State who entered the first State in order to seek employment may be required to leave the territory of that State (subject to appeal) if he has not found employment there after six months, unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged".
"While Member State nationals who move in search of work benefit from the principle of equal treatment only as regards access to employment, those who have already entered the employment market may, on the basis of Article 7(2) of Regulation No 1612/68, claim the same social and tax advantages as national workers (see in particular, Lebon [Case No C-318/85 [1987] ECR 2811] [26] and Commission v Belgium [Case No C-278/94 [1996] ECR I-4307, [39]-[40].)
The concept of "worker" is thus not used in Regulation No 1612/68 in a uniform manner. While in Title II of Part I of the regulation this term covers only persons who have already entered the employment market, in other parts of the same regulation the concept of "worker" must be understood in a broader sense."
"It must therefore be stated in reply to the questions submitted by the national court that it is not contrary to the provisions of the Community law governing the free movement of workers for the legislation of a Member State to provide that a national of another Member State who entered the first State in order to seek employment there may be required to leave the territory of that State (subject to appeal), if he has not found employment there after six months, unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged."
"However, it should be left to the host Member State to decide whether it will grant social assistance during the first three months of residence, or for a longer period in the case of jobseekers, to Union citizens other than those who are workers or self-employed persons or who retain that status or their family members, or maintenance assistance for studies, including vocational training, prior to acquisition of the right of permanent residence, to these same persons."
"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.
employment.
The appellant's circumstances
The first appellant as a self-sufficient person: the issue of comprehensive sickness insurance cover in the United Kingdom
The first appellant as a self-sufficient person: the issue of sufficiency of resources
"Furthermore, an EEA national will qualify on the basis of self-sufficiency if his/her spouse, civil partner, or partner is able to support him/her financially through his/her legal employment/self-employment. Similarly an EEA national will qualify on the basis of self-sufficiency if the spouse, civil partner, or partner has sufficient financial resources to support them both, without the need to undertake employment or self-employment."
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).(Emphasis added)
"Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there. (Emphasis added) "
"As interpreted by the ECJ in Chen, the article 18 right of Q and the associated right of her custodians can only be lawfully asserted under the strictly limited conditions imposed by Directive 90/364. The right accordingly does not exist if Q does not have access to the relevant resources."
"62. The solution may be found in an examination of the underlying purpose that leads Community law to recognise the derivative right of free movement for family members of EU nationals exercising Treaty rights. Those rights, of course, apply to family members even if they are not themselves EU nationals. The real purpose of the right to accompany (or join) and reside with the EU national is that without such a right the EU national could be inhibited from exercising his EU right of free movement and residence. The starting point is that the EU national has a right and therefore all principles of Community law work to avoid difficulties in its exercise. It follows from that that in a typical case the EU national's right exists independently of the presence of family members in the host country. That was also the situation in Chen. Although the parent/carer had to be in the UK in order for the EU national child to exercise her right of residence, that right existed independently of the presence of the family member. The child's self-sufficiency was derived from her parents but it would have existed even if they had not been in the UK – it was derived from their business in China. The rationale of Chen is that the presence of the parent/carer enabled the child to exercise the right it undoubtedly – and independently – had.
63. What is being said in this case is quite different. Here, it is said that the parent/carer is entitled to be in the UK and work because only then will the child be self-sufficient and hence establish her EU right of residence. Thus, the family member's presence in the UK (and right to work) is relied upon not in order to avoid a 'clog' or 'chill' on the exercise of the right of the EU national child but rather in order to create that very right itself – the right from which the family member then seeks to derive his own right to reside as her carer/parent. Only if the parent/carer resides in the UK with the EU national child can it be said that the child has an EU right at all. The argument is then exposed for what it is – entirely circular. Even more problematically, it is a circular argument that begins in the wrong place because it begins with a person who has no right to begin with, unlike in Chen. There is nothing in the Court of Justice's jurisprudence, in particular in Chen, or anything in principle which should cause us to decide that a non-EU family member should be able to reside in the UK with an EU national child (not to allow it to exercise an existing right but rather) in order to establish the right in the first place. Any right of the family member must be derived from an existing right of the EU national which he or she has individually and separately. That is simply not this case.
64. Further, if the appellants' arguments are accepted, there would be a number of consequences which we consider have no justification in Community law.
65. First, it would mean that an EU citizen could enter and reside within another Member State on the basis of self-sufficiency providing his accompanying non-EU family member could realistically gain employment in the UK. The family member would, thereby, acquire a right to work equivalent to that of an EU national who wished to work in another Member State. That would elevate what has always been necessarily a derivative right for a non-EU national into the primary right previously only enjoyed by EU nationals. In our view, the appellant cannot assert a right to work (which he does not otherwise possess as a non-EU national) in order to establish the first appellant's right of residence based upon her 'self-sufficiency'. The attempt to supplant the Member State's right to decide upon its own immigration controls in this way has no foundation in Community law.
66. Second, EC rights of free movement and residence were originally conceived as rights conferred upon the economically active, for example workers and the self-employed (Roux v Belgium (Case C-363/89) [1991] ECR I-273). Neither appellant does, nor could, rely upon a right of this nature. Rather, they rely upon Article 18, EC Treaty introduced by the Maastricht Treaty and its progeny in the shape of Directives 90/364 and 2004/38 which extend EU free movement rights in certain circumstances to non-economically active EU citizens and their family members. The effect of [counsel for the appellants'] argument, if correct, would confer upon an EU national's carer/parent a right to work (the economically active right) in order that the non-economically active right of the EU national could be established. We do not consider that Article 18 and the relevant Directives can be interpreted and applied so as to create a right to work for the non-EU national carer/parent in these circumstances. It is not, in our view, required by any of the Court of Justice jurisprudence or any of the arguments presented to us."
"42. ….In our view, the EU national's right must be established independently of the presence of the family members in the UK before they may derive any rights from EU law themselves. This, it may be said, is because the right is the right of the EU national. It is an individual right, not a family right (although it has consequences for the family); and it must be established on an individual, not a family basis.
43. Second, we do not see any basis for deciding that income derived from the first and second appellants' current employment can establish their daughter's right to reside. The circularity in establishing the child's rights and then the parents' rights is no less apparent in these appeals. Here, the child's self-sufficiency is dependent upon her parents working. They only have a temporary basis for doing so for so long as they have limited leave and are permitted to work. Once that leave runs out, there would be no lawful basis for working. Indeed, it seems to us that it is only because of these applications and subsequent appeals that the leave did not terminate in December 2005 but was continued under s.3C of the Immigration Act 1971. The only basis for their right to work would then have to be derived from EU law. The moment that occurred and they derived a right to reside and - it would have to be said - to continue working, the position would be indistinguishable from that in GM and AM. The circularity would be complete – their right to work would now sustain the child's right and through her their own derived right would continue.
44. Third, our conclusion accords with a proper understanding of the notion of 'self-sufficiency' and the distinction between free movement in reliance upon economic and, alternatively, non-economic rights.
45. An EU national who claims to be self-sufficient is not asserting a right to enter and reside in another EU state on the basis of economic activity in that country. If he were, he would be seeking to enter, for example, as a worker or self-employed person. Rather, he relies upon his resources which exist independently of any economic activity in the host Member state. Once that is established, his family members have a derivative right to accompany or join him. If they did not, the EU national's right of free movement might be inhibited or effectively denied to him. In addition, the central EU legislative instruments give family members a right to work in that the host Member state. But, their right to work is not a recognition of the right to engage in economic activity per se. Rather, it is simply a reflection of the underlying principle of EU law because otherwise they (and hence the EU national) might be inhibited from moving within the EU if family members were not allowed to carry on, what for them, is an important aspect of their everyday lives. The economic activity of the family members does not establish – nor could it in the context of an EU national worker or self-employed person – the EU national's right. That arises a priori and independently of any economic activity by the EU national or his family in the host EU country.
46. By contrast, in the Chen-type case the EU national can only establish his right by reliance upon economic activity in the host Member state, not, of course, economic activity by himself but rather by his family members. We see no reason to distort the usual situation simply because the EU national is a child and is dependent upon others for support and, unusually, is already present in the host EU country with his family members rather than seeking to enter it with his family. Here too, the right of free movement based upon self-sufficiency cannot depend upon resources derived from employment engaged in by the EU national or his family members in the UK.
…
48. In the result, therefore, the reasoning of the Tribunal in GM and AM is applicable where an EU national child places reliance upon income derived from a parent lawfully working in the UK during a period of limited leave restricted for a specific purpose or, which is not this case, who is on temporary admission and not prohibited from working. In such circumstances, a Member State is entitled to restrict the rights of employment of non-EU nationals, in particular to limit the duration of their permission to work just as it is entitled effectively to prohibit their ability to work (see, W(China) and X(China)). When it does so, that individual cannot derive a right to reside as a "family member" of an EU national because that income cannot be taken into account in order to establish the EU national's right of residence on a self-sufficient basis."
"by excluding the income of a partner residing in the host Member State in the absence of an agreement concluded before a notary and containing an assistance clause, the Kingdom of Belgium has failed to fulfil its obligations under Article 18 and Council Directive 90/364 of 28 June 1990 on the right of residence when applying that directive to nationals of a Member State who wish to rely on their rights under the directive and on Article 18 EC".
Proof and verification
"43. Before the Adjudicator it was common ground that the Respondent had the burden of proving that the Appellant's marriage was a 'sham'. The position before us was the same. For the purposes of this determination we accept it, but it appears to us that that position (as to both burden and standard) might properly be reconsidered in some other case. So far as concerns burden, the burden of proof is, as a matter of the general law, usually on the party who asserts. We should, if we were required to make a decision on the matter, have been inclined rather to say that it is the Appellant who asserts that he is a spouse who has a right of residence than that he merely asserts that he is a spouse, leaving the Respondent to deny that he has a right of residence. We are fortified in that view by the provisions of Rule 31 of the 1984 Rules (which applied to this appeal before the Adjudicator). So far as concerns standard, a high standard is appropriate in cases where misconduct is alleged: but, as at present advised, we are not persuaded that there is anything inherently wrong in marrying for convenience and taking any advantages that flow from the relationship - provided, of course, that no deception is involved."
"However, as the right of residence under Article 18 is not unconditional, it is for the citizens of the Union to adduce the necessary evidence that they meet the conditions laid down in that regard by the relevant Community provisions."
Signed:
Dr H H Storey (Senior Immigration Judge)