This Upper Tribunal case was heard on 22nd March 2011.
Facts of the case: The appellant made an application for an EEA residence card as the family member of an EEA national which was refused by the Secretary of State for the Home Department (herein after referred to as the SSHD) in November 2009. The application was refused on the basis that the appellant had failed to provide sufficient evidence to demonstrate that her husband, an Italian national, was exercising his Treaty rights in the UK as a worker. The UK Border Agency had not been able to verify the existence of the employer whose details the appellant had provided. The appellant appealed against the decision and she came before the First Tier Tribunal. Her appeal was dismissed in a determination promulgated 18th February 2010 on the basis that
"There has been no evidence of [business] premises, equipment or relevant insurances being carried. There has been no suggestion that there was a business plan of any sort. In its totality the setting up of the business and employment of the Appellant's husband in the circumstances described tended to give the impression that it was a business of convenience".
The appellant applied for permission to appeal to the Upper Tribunal on the basis that
- The Immigration Judge had failed to consider the relevant provisions identifying a worker under Community law
- The Immigration Judge had failed to make findings of fact and did not have regard to the fact that the appellant's husband was looking for a second job
Permission to appeal was subsequently granted and the matter came before the Upper Tribunal.
Upper Tribunal conclusion
Reference was made to multiple authorities and precedent cases that dealt with this matter most notably, the case of Lawrie-Blum v Land Baden-Wurttemberg (case no. 66/85). In this case, the Court considered the features required for a Union Citizen to be considered a worker. It was held that the concept should be applied broadly. It provided that "The essential feature of an employment relationship is that for a period of time a person performs services for and under the direction of another person in return for which he receives remuneration".
In the appellant's case, the Tribunal was satisfied that the first Immigration Judge had correctly assessed that the appellant's husband was not a worker within the meaning of Community law. She had considered all the material before her and concluded that the job was not genuine. There was no error of law on this point. The question was whether she had erred in law by not considering whether the EEA national was a jobseeker. The appellant relied on a transcript which had been prepared by her legal representatives and which clearly had not been considered by the Immigration Judge. There was no other evidence to demonstrate that the appellant's husband was looking for work nor was it covered in their statements or the skeleton argument. The appellant was professionally represented yet this was not presented to the Immigration Judge. The Tribunal concluded that there was no error of law on this point either.
Reference was made to the provisions in the Citizens Directive in particular 14(4)(b) which was given effect in the UK through reg. 6(4) of the Immigration (European Economic Area) Regulations 2006 which provides:
6(4) For the purposes of paragraph (1)(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.
The Tribunal dismissed the appellants appeal. They held as follows:
"(1) When deciding whether an EEA national is a worker for the purposes of the EEA Regulations, regard must be had to the fact that the term has a meaning in EU law, that it must be interpreted broadly and that it is not conditioned by the type of employment or the amount of income derived. But a person who does not pursue effective and genuine activities, or pursues activities on such a small scale as to be regarded as purely marginal and ancillary or which have no economic value to an employer, is not a worker. In this context, regard must be given to the nature of the employment relationship and the rights and duties of the person concerned to decide if work activities are effective and genuine.
(2) When considering whether an EEA national is a jobseeker for the purposes of EU law, regard must be had to whether the person entered the United Kingdom to seek employment and, if so, whether that person can provide evidence that they have a genuine chance of being engaged. If a person does not or cannot provide relevant evidence, then an appeal is bound to fail on this ground." July 2011
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At Ergen & Sharif, we have extensive experience in dealing with EEA related applications and appeals. Whether you intend to make an initial application or whether you intend to appeal against a negative decision, we can help. Our experienced lawyers will advise you as to the:
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