Asylum and Immigration Tribunal

AG and others (EEA-jobseeker-self-sufficient person-proof) Germany [2007] UKAIT 00075

THE IMMIGRATION ACTS

Heard at Field House		
On  19 June 2007		

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 went on to say that if he still wished to be considered for the position once he had the minimum experience, he should contact them again.

9. Mr Idowu said that he was instructed that at the hearing before the immigration judge the appellant had indeed shown more correspondence relating to job inquiries but had not retained these. We pointed out that the immigration judge made no mention of any other items of correspondence, the file contained nothing else and the appellant’s representatives had not adduced any other items of correspondence or a statement from the appellant in support of this claim to have submitted more. Nor, as we have already noted, had the appellants produced any witness statements. In such circumstances we were not prepared to accept that there was any other evidence of job inquiries submitted beyond the four aforementioned letters.

The relevant law

10. Regulation 4 (1) of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (hereafter the “2006 Regulations” or “the Regulations”) state that in these Regulations:

“(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;”

11. Regulation 4(2) states that:

“(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.”

12. Regulation 4(4) states:

“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.”

13. Regulation 6 (1) states that:

“ …“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.”

14. Regulation 6(4) states that:

“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”.

15. Regulation 13, headed “Initial right of residence” provides that:

“(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.”

16. Also relevant are certain provisions of the (parent) Citizens’ Directive (Directive 2004/38/EC). Recitals 9 and 10 of this Directive state:

“(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.”

17. Also pertinent are recitals 20 and 21:

“(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.” 

18. Article 3 (headed “Beneficiaries”), which deals with family members and other family members, states in its final sentence:

“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.”

19. Article 2(3) gives the following definition of “host Member State”:

“’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.

20. Article 6 (headed “Right of residence for up to three months”) states:

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.”

21. Article 7 (headed “Right of residence for more than three months”) 

“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).”

22. Article 8 (headed “Administrative formalities for Union citizens) stipulates that the host Member State may require Union citizens to register with the relevant authorities. Subparagraph 2 states that the “deadline for registration may not be less than three months from the date of arrival…” Subparagraph 3 states that:

“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;
-…”

23. Subparagraph 5 states that:

“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.”

24. Also of some importance to this case are certain provisions of the Directive dealing with proof and verification. Recital 14 states:

“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.”

25. Article 14 (headed “Retention of the right of residence”) states:

“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.

….”

26. Article 23 (headed “Related rights”) states:

“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

27. Both parties accepted, and we have no hesitation in finding, that the immigration judge erred in law. His assertion at para 10 that:

“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”.

28. We also consider that the immigration judge erred in law when assessing whether the first appellant was a “self-sufficient person” in finding that the first appellant had relied on social assistance following the death of his father simply by virtue of having paid the rent due on his father’s council house at the subsidised rate of £9 a week for 4 months until he and his wife had to move out in January 2007. The immigration judge had no discernible evidential basis for assuming that the first appellant had ever sought or obtained a rent subsidy “to which he was not entitled” rather than simply being entitled by the terms of the tenancy as his father’s successor to continue paying the same rent for a certain period. For him to find that the first appellant had relied on social assistance by paying this rate was pure speculation. 

29. It remains, however, to determine whether the immigration judge materially erred in law. In particular, we need to ask whether his errors materially affected the outcome of the appeals.
 
30. Mr Idowu submitted that the immigration judge should have allowed the appeals on two separate bases: because (1) the first appellant was a jobseeker and (2) he was a self-sufficient person. 

The first appellant’s position as a jobseeker

31. It was Mr Idowu’s first line of argument that at the date of decision (20 January 2007) the first appellant should have been considered as a qualified person within the meaning of reg 6(1)(a) by virtue of the fact that he was a jobseeker.  He was prepared to accept that the respondent was entitled to treat the period during which a person could qualify as a jobseeker as limited to 6 months. In the appellant’s case, however, that period did not start to run until October 2006, when the first appellant began looking for work, having spent the first 3 months in the UK (between July and September) either as a self-sufficient person or as a person lawfully exercising his initial right of residence provided for by reg 13 of the 2006 Regulations. As regards the latter, he pointed out that reg 13 established an initial right of residence for a period of 3 months, subject only to the requirement that the EEA national hold a valid identity card or passport issued by an EEA State and that the EEA national or his family member shall only cease to have the right to reside under this regulation if he “becomes an unreasonable burden on the social assistance system of the United Kingdom…”. Mr Idowu relied further on the Home Office IDI at chapter 4 which states (at least in the undated version he supplied to us)  at 3.1.1:

“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).” 

32. We are unable to accept Mr Idowu’s contention. It is contrary to the clear requirements of reg 6(4). As we have seen, this provision states that “jobseeker” means for the purposes of this regulation “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”. It is a provision which contains three separate requirements:

- 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.

33. On the appellant’s own evidence before the immigration judge he never met the first requirement that he be someone who can show he entered “in order to seek employment”. When he entered he never had such an intention. He only formed such an intention in October 2006. Accordingly at the date of decision he did not qualify as a “jobseeker”.

34. Mr Idowu urged us not to apply too literal approach to the first requirement contained in reg 6(4) since it would effectively mean that genuine jobseekers could not qualify as such unless they had come to the United Kingdom with the intention of seeking employment. The Regulations cannot have been intended to exclude persons like the appellant who were Union citizens in a host Member State and who had changed their intentions after entry.

35. In our view even read purposively it is not possible to construe reg 6(4) in a way which would extend the concept of jobseeker to persons who cannot show that on entry they had the intention to seek employment. To do so would be to disregard the clear and express words referring to entry for a particular purpose. In considering the meaning of the term “jobseeker” in the Regulations we have had regard to the terms of the Citizens’ Directive, whose provisions the 2006 Regulations have sought to implement. As our previous recital of relevant provisions of the Directive shows, the Directive itself does include references to the term “jobseeker”.

36. Recital 20 and 21 state that:

“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.”

37. Article 7, headed “Right of residence for more than three months”, states at paragraph 3:

“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)….”

38. Article 14, headed “Retention of the right of residence states at paragraph 4:

“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.”

39. It can be seen that whilst the Directive contains no definition of the term “job-seeker” as such, Article 14(4) casts light on the meaning of the term, at least insofar as it clearly limits the category of those jobseekers against whom it is prohibited to adopt an expulsion measure (subject to Chapter VI) to those who have entered the territory of the host member State “in order to seek employment”. In the case of such persons it is expected they can provide evidence that they are continuing to seek employment and that they have a genuine chance of employment. We remind ourselves too that Article 2(3) defines “Member State” to mean “the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence”. These provisions show that intention at the point of movement to, or arrival in, a Member State is treated by the Directive itself as a proper point of focus.

40. Mr Idowu’s second line of argument was that even if the first appellant did not qualify as a qualified person under reg 6(1)(a) as a jobseeker, he should still have been seen to qualify as a “worker” under reg 6(1)(b) on the strength of European Community law. As put in ground 13 of the grounds for reconsideration:

“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”.

41. We think that in general terms Mr Idowu is right to argue that if the first appellant can show at the date of hearing he was a “worker” under European Community law, he was entitled to succeed in his appeal on the basis that he was a “worker” under reg 6(1)(b). The only definition given of the term “worker” in the 2006 Regulations is given at reg 4(1)(a). It states that the term means “a worker within the meaning of Article 39 of the Treaty establishing the European Community”. The meaning of the term worker within Article 39 has been the subject of extensive jurisprudence by the European Court of Justice (hereafter “ECJ” or “Court”). 

42. Let us turn to that. In Antonissen the Court was concerned with an applicant who was a Belgian national who had entered the United Kingdom in October 1984. He sought work but was unable to find it. In March 1987 he was sentenced to a term of two years’ imprisonment concurrent with a term of six months’ imprisonment on charges of possessing a controlled drug and having a controlled drug in his possession with intent to supply.” On 27 November 1987 a deportation order was made against him on the ground that his deportation was conducive to the public good. On appeal, the Immigration Appeal Tribunal decided that he could not invoke the protection of Community law from deportation, never having become a worker because he had not met the requirements of paragraphs 140(a) and 143 of the Immigration Rules (which applied a 6 months test). In September the applicant had sworn an affidavit stating that:

“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”. 

43. The first question referred to the Court by Nolan J was:

“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”. 

44. The Court made this ruling:

“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”.

45. When the case came back to the High Court, Popplewell J said that on the basis of the applicant’s history, while he had had continued to seek work, he had no genuine chance of securing it and he could not, therefore, at the relevant date, claim the protection of the Directives on the free movement of workers (R v Immigration Appeal Tribunal ex parte Antonissen [1992] Imm AR 196. 

46. In Antonissen and a number of other ECJ judgments, the point is emphasised that  the concept of “worker” within the meaning of Article 48 of the Treaty and of Regulation No 1612/68, has a specific Community meaning and must not be interpreted narrowly (e.g. Case 39/86 Lair [1988] ECR 3161 [31], [33]; Case No C-171/91 Tsiortras [1993] ECR I 2925 [8], Case No C-138/02 Collins [30]). The Court’s case-law draws a distinction between Member State nationals who have not yet entered into an employment relationship in the host Member State where they are looking for work and those who are already working in the State or who, having worked there, are no longer in an employment relationship. Only the latter can claim the same social and tax advantages as national workers. However, both sub-categories are considered to be workers. The Court has seen the extension of the meaning of worker to embrace jobseekers as being implicit in, for example, Article 5 of Regulation (EEC) 1612/68, which refers to a national of a member state “who seeks employment in the territory of another member state”. In Collins, the Court said:

“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.”

47. In Case c-85/96 Martinez Sala [1998] ECR I-2691, the Court ruled that persons seeking work are to be considered to be “workers” for the purposes of Regulation No 1612/68 if the national court is satisfied that the person concerned was genuinely seeking work at the appropriate time.  In   RP (EEA Regs – worker – cessation) Italy [2006] UKAIT 00025 the Tribunal emphasised the importance placed by the Court when assessing whether someone is a worker on there being on his part no abandonment of the labour market: see Raulin v Minister van Onderwijs en Wetenschappen (Case C-357/89 [1992] ECR 1027)

48. Several propositions regarding the concept of worker-as-jobseeker within European Community law can be elicited from the cases already mentioned. As highlighted in its judgment in Antonissen the Court considers that the secondary legislation of the Community recognises that for the purposes of Article 39 the concept of worker includes both those who have found employment and those who are seeking work. Secondly, as already noted, a Union citizen (or EEA national) is only a jobseeker if he has entered the territory of the host Member State in order to seek employment. Thirdly, he can only continue to be a jobseeker for a reasonable period. 

49. Here we pause to say something more about the notion of a reasonable period. We are aware that some commentators have seen the Court in Antonissen as having settled definitively that there is a 6 months time limit after which a jobseeker ceases to be a worker (indeed Mr Idowu said that he was prepared to accept that the first appellant was subject to a 6 months time limit). We think that goes too far: there is no specific time-frame. The Court in Antonissen only settled that a Member State is entitled to treat such a time limit as a being generally a reasonable one. The Court ruled that a period of 6 months set by the UK immigration rules then in force (HC 251 (paragraph 150)) within which employment must be found is not inconsistent with the freedom of movement provisions. (We can presume that even though there is no longer a 6 months time limit contained in the Immigration Rules, the Court would continue to see no difficulty with the ongoing Home Office practice – as set out in the IDIs – of generally expecting a person to find employment within 6 months.) Furthermore, it is clear that the Court considers that what is a “reasonable period” will depend ultimately on the particular circumstances of the “person concerned”. It follows that a reasonable period could be more or less than a period of 6 months depending on what the evidence is as to the steps taken by the person concerned to seek employment. Each case should be decided on its individual merits looking at the individual’s intentions in entering the host Member State, his jobseeking history vis-à-vis the labour market and his chances of getting employment.

50. That brings us to a fourth proposition. In the context of deciding whether a national law requiring a person to leave after the end of a reasonable period is consistent with Community law, it is still necessary to examine whether, at the end of or after that period, the individual concerned has produced evidence that he is continuing to seek employment and has genuine chances of being employed. 

51. What is immediately apparent from the above summary of ECJ case law on workers-as-jobseekers is that this case law imposes essentially the same  requirements as do the 2006 Regulations in respect of jobseekers: 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. Thus whether considered under reg 6(1)(a) as a jobseeker or under reg 6(1)(b) as a worker,  an EEA national who is seeking work has to meet essentially the same requirements.  

52. Going back to what the Court has said  in Antonissen and other ECJ judgments relating to the right of Member States to impose a time limit of a “reasonable period”, it has not to our knowledge addressed in express terms the specific issue of whether that time period must run from the date of arrival. But in our view it has said enough to make clear that whatever time period is considered to be “reasonable”, it must be one which commences from the Union citizen’s date of arrival in the Member State: it cannot be commenced by such a person choosing to begin to seek employment at some period after arrival. 

53. We acknowledge that the Home Office IDIs might be thought to suggest differently in para 3.1.1 where they state that the expectation generally is that a jobseeker obtains employment “within 6 months of beginning his/her search” - without specifying anything about “beginning” from the date of arrival. However, if the clock for these purposes was only seen to run from when the Union citizen chooses to seek a job, then that could mean that a reasonable period of time could in general extend to a period of 9 months, comprising 3 months initial residence (to which there is an entitlement under reg 13) plus (at least in the UK context, bearing in mind the Court’s ruling in Antonissen) an additional 6 months. That would offend the basic principle enunciated by the Court in Antonissen that the right to be considered as a worker even though only a jobseeker is based upon the right of a national of another Member State “to move in order to look for employment,and hence to stay, in another Member State” ([14]) and on the need to afford to such persons a reasonable time in the host Member State, to avail themselves of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged ([21] and [16] respectively). It would also fly in the face of the specific wording of that judgment. Para 22 states:

“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.”

54. We recognise that it might be argued that Article 6, by conferring an initial right of residence of 3 months expressed as being “without any conditions or any formalities other than the requirement to hold a valid identity card or passport”, envisages the possibility of a Union citizen changing his mind during those 3 months from merely wishing to exercise this right (e.g. as a holidaymaker) to wishing to become a jobseeker. However, even if we were somehow able to reconcile this with the case law requirement going to the intention of the Union citizen (EEA national) at the time of moving to the Member State, it does not follow that such a person can be assessed as a jobseeker without regard to whatever period of initial residence he has accumulated up to that point (which could be up to a maximum of 3 months). The notion that that  3 months (or lesser) period cannot be counted in when looking at whether there is an (extended) right of residence would conflict with subsequent provisions of the Directive, Article 7 in particular which clearly treats the period in respect of which there exists a “ right of residence for more than 3 months” as covering the first 3 months (“for a period of longer than three months…”; see also recital 10: “…Therefore, the right of residence for Union citizens and their family members for periods in excess of three months should be subject to conditions”). At the end of the initial period of residence it is not therefore as if the Union citizen is necessarily at “Day 1” for the purposes of assessing whether he is exercising Treaty rights and so entitled to an extended right of residence. That would make a nonsense, for example, of the provisions of Article 7(3) which concern circumstances in which a Union citizen who is “no longer” a worker or self-employed person shall retain the status of worker or self-employed person. 

55. It is also necessary to have regard to specific references in the Directive’s preamble to jobseekers. Recital 21, we remind ourselves, states:

“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.” 

56. The reference to a “longer period in the case of jobseekers” can only mean a period which includes, but is more than, the first 3 months. If it could refer to a Union citizen who waits for 3 months before becoming a jobseeker the period would not be “longer” because it would only just have started. 

57. We also consider that the suggested reading of Article 6 would render otiose the reference made in recital 9 to jobseekers. Recital 9, we remind ourselves states that:   

“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.
 
58. If a person who sought to base his claim to an extended right of residence on his status as a jobseeker could expect not to have his period of  jobseeking counted until the initial 3 months period of residence was up, then there would be no need to preserve the “more favourable treatment” applicable to jobseekers recognised by the Court of Justice – case law, which, we have seen, allows for the possibility, at least in general, that a period of 6 months can  be consistent with the requirement of a “reasonable period” in which to find 
employment. 

59. There is no justification either for any suggestion that the inclusion in the Citizens’ Directive of an initial right of residence for 3 months represents a radical departure. In large part it merely codifies the previous position, as established by Council Directive of 28 June 1990 on the right of residence (90/364/EEC) which at Article 1 stipulated that Member States shall grant the right of residence to nationals of Member States who do not enjoy this right under other provisions of Community law and to members of their families, provided that they themselves and the members of their families are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence. When the ECJ decided the Antonissen case in 1991, it cannot have been unaware of this legislation and the fact that it envisaged that  a national of a Member State could move to a Member State and reside there, even if not a worker,  so long as self-sufficient. 

The appellant’s circumstances

60. Applying the case law of the Court in relation to jobseekers to the appellant’s particular circumstances (on the basis of the evidence as it was before the immigration judge),  it is clear to us that as at the date of decision on 20 January 2007 the first appellant was not -and had never been - since last arrival, a worker. There are two main reasons for so concluding. 

61. First, on his own account he did not enter the United Kingdom with the intention of seeking employment and he remained here for some 3 months before deciding to seek work. 

62. Second, he had failed to substantiate, when requested by the host Member State, that in the period since his arrival he was seeking employment or that he had a genuine chance of being engaged in employment. Despite a specific request from the Home Office that he provide evidence in support of his application to show he was exercising Treaty rights, he submitted nothing. At the date of decision, therefore, the Secretary of State had no evidence that he was either a jobseeker or a worker or any other sub-category of “qualified person”.  

63. What about the situation as at the date of hearing before the immigration judge? Section 85(4) of the Nationality, Asylum and Immigration Act 2002 governs this appeal, by virtue of reg 26(7) of the 2006 Regulations. The immigration judge was therefore entitled to consider evidence about any matter which he thought relevant to the substance of the decision, including evidence which concerned a matter arising after the date of decision. He heard and received evidence that the first appellant had sought employment as a trainee bus driver from two London bus companies, one of whom had informed him that they had no openings at present. Were these inquiries enough? There was no evidence before the immigration judge of any other efforts to find employment and these inquiries amounted to only two completed job applications. Bearing in mind that by the date of decision in January 2007 his job-seeking efforts over the period of approximately six months since he entered the United Kingdom in July 2006 amounted to applications to only two employers, we think he had not shown he was genuinely seeking employment. Arguably, such limited efforts did not even demonstrate that he had been genuinely seeking work since he began to seek work (some 3 months after arrival). 

64. We recognise that it is possible (in the absence of knowing anything more precise than that the first appellant last arrived in July 2006 and was refused  on 22 January 2007) that at the date of decision he had been in the UK slightly less than 6 months. However, for reasons given earlier, what matters from the point of view of Community law is whether or not the period in question is a reasonable one in the particular circumstances of the case. In finding that the evidence as it was before the immigration judge clearly indicated that the first appellant  had had more than a reasonable period in which to secure employment by the date of decision, there is no conflict either with Home Office policy, since the reference therein ( in the IDIs at  3.1.1) to 6 months is expressly stated to be simply a general expectation; it is not stated as a minimum period to be applied irrespective of the individual circumstances of the person concerned’s case.  

65. We are aware, of course, from documentation Mr Idowu showed to us at the hearing, that the first appellant appears now to have become employed with Arriva bus company. He asked us to treat this as post-determination evidence casting light back on facts as they stood at the date of decision, since it strongly tended to show that he had always had a genuine chance of being employed in the field of employment he had chosen. Assuming that the documentation relating to this new job is correct (and having perused it we have no reason to doubt it) and that the first appellant can comply with the requirements of reg 16(2) by furnishing confirmation of this engagement from his employer, then he will be entitled to obtain the registration certificate he seeks as a ‘worker’ and his family will be able to obtain the residence card documentation they seek as family members of a worker. However, they cannot obtain such documentation by way of this appeal since it is a state of affairs that has come to pass since the immigration judge heard the appeals and in the absence of there being a material error of law in the immigration judge’s determination, we cannot have regard to it (see CA [2004] EWCA Civ 1165).  

The first appellant as a self-sufficient person: the issue of comprehensive sickness insurance cover in the United Kingdom

66. What about the requirement of reg 4(1)(c)(ii) that the EEA national have "comprehensive sickness insurance cover in the United Kingdom” and the parallel requirement of reg 4(2)(b) that “he and his family have such cover”? Mr Idowu accepted that there was no evidence put before the immigration judge or before us that the appellants met these requirements. Nonetheless, he said, he understood from the second appellant (when he spoke to her at the hearing before us) that the first appellant had taken out comprehensive sickness insurance in Germany which covered him and his family in the UK. We know from the ECJ judgment in Baumbast and R v Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091 that it was accepted that comprehensive sickness insurance taken out in a person’s own Member State can fulfil this type of requirement, so long as it gives cover in the host Member State. So if the appellants had been able to substantiate this claim, they could have expected to be seen as having fulfilled the requirements of regulation 4.  

67. Can they be said to have substantiated this claim? We do not consider that the appellants have shown they have comprehensive sickness insurance cover in the United Kingdom. As the Court of Appeal made clear in W(China) and X(China) v SSHD [2006] EWCA Civ 1494 the possession of such insurance is something which applicants have to demonstrate: see [8]. For self-sufficient persons the Citizens’ Directive at Article 8(3) imposes a specific requirement that they  “…provide proof that they satisfy the conditions laid down therein”. In these appeals no documentary evidence of self-sufficiency was produced before the immigration judge nor did the first appellant’s oral evidence make any reference to it. The burden of proof is on the appellants to show that they have such cover. They did nothing to discharge that burden. Mr Idowu urged us to have regard to what he had been told on instructions by the second appellant during the hearing before us, namely that the appellants had such cover obtained in Germany. However, the hearing before us was an error of law hearing and in deciding whether there is a material error of law we cannot have regard to evidence which was not before the immigration judge. In any event we do not accept that satisfactory evidence can be created simply by a representative, when quizzed as to why there has been no evidence of such cover conferring with an appellant and then informing the Tribunal that such cover was taken out. In our view even had we jurisdiction to take into account post-determination matters, the claim remains unsubstantiated.

68. Thus one of the two necessary requirements of reg 4(c) cannot be met and for that reason alone the first appellant was not, either at the date of decision or the date of hearing before the immigration judge, a self-sufficient person within the meaning of reg 4(1)(c), nor were his family members able to meet the parallel requirement of  reg 4(2).

The first appellant as a self-sufficient person: the issue of sufficiency of resources

69.  So far as reg 4(1)(c)(i) was concerned, Mr Idowu  contended that reg 4(4) clearly envisaged that when it came to assessing whether the Union citizen was ‘self-sufficient’ his situation had to be considered so as to take into account the combined resources of the appellant and those of his family members. He pointed out that this sub-paragraph made reference to “the resources of the person concerned and, where applicable, any family members…”and that reg 4(2)(a) made similar reference to “his resources and those of the family members” (emphases added).  He also drew support also from the provisions of the Home Office IDI at para 5, which states that:

“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.” 

70. In our view these submissions cannot avail the appellants. Even had we been prepared to accept that the appellants met the requirement to have comprehensive sickness insurance cover, we would still not have found that they met requirements of reg 4(4) or reg 4(2)(a).  We are prepared to accept for the purposes of this reconsideration that if the first appellant’s resources can be treated as including the income the second appellant received from employment, the couple would be able to show that their joint resources exceeded the minimum 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. We did not have evidence about this, but we consider we are entitled to take judicial notice of the fact that £225 a week is well in excess of the applicable benefit rates for the three appellants in force as at the date of decision in January 2007.

71. Before proceeding further it is necessary to take stock of the evidence relating to the second appellant. Albeit incomplete, the only basis on which it was said she had an EEA right was that she was a family member of an EEA national. It was not submitted, and there was no evidence to show, that she had any other basis of entry or stay in the UK. It is a reasonable inference, therefore, that she had no lawful permission to work. Even if she was entitled to an initial right of residence for 3 months under reg 13, that right did not include a right to take employment. Moreover, once the three months had expired, she could have no lawful basis of stay unless able to show she was the family member of a Union citizen who qualified as a self-sufficient person. Subject to her being able to establish a right of residence as a family member, therefore, her resources from employment were not lawfully acquired.

72. Turning to what guidance is given by ECJ case law, we recognise that the Court has frequently emphasised that there are limitations contained in the Community law requirement that beneficiaries of the right of residence must not become an “unreasonable” burden on the public finances of the host Member State. Mr Idowu is quite right to emphasise that it is the Court’s view that: “…those limitations and conditions must be applied in compliance with the limits imposed by Community law and in accordance with the principle of proportionality”  (Chen [32], Baumbast [90] and[91]). Even so, Mr Idowu’s submissions must be rejected. If he were correct the right to reside of family members, despite being described in both the Regulations and the Citizens’ Directive as “dependent upon” those of the Union citizen (see for example: reg 4(2)), could be created by the Union citizen being dependent upon them. Both the Regulations are the Citizens’ Directive make very clear that the right to reside of family members is dependent upon their being family members of a Union citizen who can establish a right to reside in his or her own right. Thus Article 7(2) of the Directive states that:

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)

73. Put another way, the right of residence of the family member is premised upon the Union citizen being able, separately, to satisfy the requirement of self-sufficiency.

74. In similar fashion the right of the family member to take employment presupposes that the Union citizen has established a right of residence in his own right. So much is clear from the wording of Article 23:

“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) “

75. As Buxton LJ identified in W(China) and X(China) in relation to the previous directive dealing with self-sufficient persons (Directive 90/364) (at [16]):

“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.”

76. It is true that the fact of reverse dependency did not prevent the ECJ in Chen from finding that a young minor who was a national of a Member State can have his resources assessed by reference to his parents’ resources [see [44] and [45]-[47]). What motivated the Court to find in favour of Chen was the Treaty’s general principle of free movement. However, in the first place the Court in Chen confirmed that parents who were carers could not qualify as “family members” under Community legislation. In the second place, as the Tribunal has pointed out on several occasions, the resources of the parents in Chen were acquired separately from their economic activity in the host State (the UK). In GM and AM [2006] UKAIT 00059 the Tribunal concluded that an EU national child and its parents could not establish EU rights of residence where the “self-sufficiency” could only arise through reliance upon the parents’ income derived from employment in the UK.  Its reasoning was as follows:

“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.”

77. The reasoning in GM and AM was also applied in MA and others [2006] UKAIT 00090 when the Tribunal considered the argument that income lawfully earned in the UK could be relied upon. The Tribunal stated:

“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.”

78. Before moving away from relevant case law, we need to address one further ECJ case. It is Case C-408/03, Commission v Belgium 23 March 2006. It was not cited to us by either of the parties but since it is the only ECJ judgment to deal post-Chen with the issue of sufficiency of personal resources it is imperative that we analyse it, to see whether our reasoning is compatible with it. It concerned an action brought by the Commission in respect of the requirement imposed by the Kingdom of Belgium making the right of residence of family members of Union citizens subject to the requirement that they have sufficient personal resources. According to the case file the Court noted that the Commission had received various complaints about Belgian legislation and administrative practice concerning both the conditions for granting residence permits under Directive 90/364 and orders to leave Belgian territory issued to citizens of the Union. The Commission was said to have been particularly struck by the situation of a Portuguese national, a Mrs De Figueiredo, who had entered Belgium with her three daughters in August 1999 to live with her long-standing partner, a Belgian national. There was seemingly no dispute that the Belgian national had sufficient means to support her and her children, but the Belgian authorities ordered her to leave on the ground that she did not fulfil the requirement of sufficient resources laid down in Article 1 of the Directive 90/364, stating that the undertaking to support her given by him did not constitute evidence that she had sufficient resources.  The Court ruled, inter alia, that:

“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”.

79. We do not think this ruling assists the instant cases. The resources of the family member in question consisted in income lawfully earned by a national of the host Member State (her Belgian partner), not income earned unlawfully by a third-country national. Neither this judgment nor the judgment in Chen can be taken to support the quite different proposition that self-sufficiency can be established by income earned by the family member of a Union citizen – irrespective of whether that income was earned lawfully and on the basis of an independent right to work (see GM and AM at [52]). 

80. Of course, none of the above decisions specifically addresses reg 4(4) of the 2006 Regulations. This fact obliges us to consider Mr Idowu’s separate contention  that the Directive permits Member States to introduce or retain more favourable provisions (Article 37) and that – irrespective of what the Directive provides - the wording of reg 4(4)  denotes that the EEA national can establish self-sufficiency by reliance on the non-EEA national’s earnings. 

81. However, it does not seem to us that the meaning of reg 4(4) is that the self-sufficiency of an EEA national can be established by aggregating his resources and those of his family member(s) –irrespective of whether the resources of the family member(s) have been lawfully acquired. Its purpose is twofold. First it establishes that the family as a group must be self-sufficient: it is not enough for the EEA national’s resources to cover only what is necessary for his personal support. Second, it is intended to identify the level at which the family’s resources are to be assessed, by reference to the eligibility threshold for social assistance under the United Kingdom benefit system. Nor can the word “resources” be read as having no limitations beyond allowing all or any resources to be taken into account. It cannot extend, for example, to ill-gotten gains of a fraud or other crime. If it did it would violate the Community law principle that rights must not be abused: see Centros Ltd v Erhvervs-og Selskabestyrelssen (Case C-212/97) [1999] ECR I-1459, Citizens’ Directive, Article 35. 

82. We have also considered Mr Idowu’s reliance on the IDI entry at para 5. However, as he himself acknowledged, we have to apply the Regulations and the IDIs are at most an aid to construction of the Regulations. Secondly what the relevant passage in para 5 contemplates is a spouse, civil partner or partner able to support the Union citizen through “legal employment/self-employment” (emphasis added). That does not assist a family member whose employment is only legal if the right to reside of the Union citizen has been shown to exist on the basis of his/her personal self-sufficiency. It may be under these policy instructions that the position is considered different if the spouse, civil partner or partner has sufficient financial resources to support them both without the need to undertake employment or self-employment (as in Case C—408/03,  Commission v Belgium), but that is not the case here and this provision seems consistent with the approach of the European Court of Justice in Chen of permitting account to be taken of resources which such persons have before they come to the host Member State. 

83. Accordingly the evidence before the immigration judge failed to establish that the first appellant was either a jobseeker or worker or self-sufficient person. The first appellant not being a qualified person, his family members did not have a right to reside. All three, therefore, were properly refused the confirmatory documentation which they sought in the form of a registration certificate (for the first appellant) and a residence card for the first and second appellants. Hence the immigration judge, whilst he erred in law, did not err materially. 

Proof and verification

84. We noted earlier that the first appellant’s case had certain features all too commonly encountered in appeals brought by persons seeking to establish EU rights of free movement or residence, namely a lack of relevant evidence. It was the failure of the first appellant to respond to the Home Office request for relevant evidence (of his exercise of Treaty rights) which led the Home Office to refuse his application (and that of his wife and child). Whilst by the date of hearing he had adduced some relevant evidence, there were still significant omissions.

85. What are the consequences of such omissions? It was not uncommon in earlier times in the context of EEA appeals by persons whom the Secretary of State considered had entered marriages of convenience for representatives to submit that it was for the Secretary of State to prove that their marriage lacked substance. In Chang (EEA Nationals-Spouses) Malaysia* [2001] UKIAT 00012 the Immigration Appeal Tribunal declined to decide the issue (because of a concession by the parties), but gave a strong indication that it would find such submissions ill-founded. The Tribunal stated:

“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.”

86. Notwithstanding this indication it appears that efforts to cling on to the approach that somehow the burden of proof rests on the Secretary of State in EEA appeals generally have not diminished. 

87. We do not know the precise reasons for the lack of evidence in this case, they may indeed not have been motivated by this type of approach. But given that we still see lack of evidence as a feature in a significant number of EEA appeals, it is important that we seek to dispel a possible myth which has grown up around such appeals.

88. It is true that the Directive imposes on Member States a duty of examination. Article 3 states in its final sentence that: “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”. Equally, it is an important aspect of Community law relating to the right to free movement of persons that since that right is one of the “founding freedoms” established by the Treaty, it is to be given a broad meaning and conditions and limitations placed upon it must be narrowly construed. As expressed in recital 14, in relation to the supporting documentation required by the competent authorities for the issuing of a registration certificate or of a residence card, these “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”. So there is a need for legal certainty. And administrative formalities are not to obstruct the exercise of that right: see e.g. Article 25(1). In certain contexts Member States are restricted from demanding proof beyond a set minimum. Thus by Article 6 (see also recital 9) the conditions placed on the initial right of residence for Union citizens are strictly limited to the requirement to hold a valid identity card or passport: “…without any conditions or any formalities other than the requirements to …”).  Thus for a registration certificate to be issued Article 8 prescribes that “Member States may only require…” a limited number of documents: in the case of workers, for example, this is confined to a valid identity card or passport and a confirmation of engagement from the employer or a certificate of employment or proof that they are self-employed persons (Article 8(3)).  In certain contexts the requirements of proof are deliberately lessened. Thus in the case of students they are only required to present a valid identity card or passport, proof of enrolment at an accredited establishment and of comprehensive sickness insurance cover together with “a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members…” (Articles 7(1)(c) and (3).  In the context of retention of the right of residence (not we note initial establishment of such a right) Article 14(2) states that whilst Member States are entitled to verify whether the conditions set out in Articles 7, 12 and 13 are fulfilled “[i]n specific cases where there is a reasonable doubt”, this verification “may not be carried out systematically”. 

89. However, none of these requirements shift the burden of proof from the applicant or appellant and, where there is any lessening of the requirement to prove certain facts, this are the subject of specific provision. In the absence of such specific provision, it is clear that it is an underlying principle of Community law that Member States are entitled under their national laws to require appellants to prove they possess the EU rights they claim. Furthermore, in relation to persons seeking to establish a right to reside on the basis of self-sufficiency the Directive identifies this burden quite specifically, Article 8(3) stating that such persons must present a valid identity card or passport “and provide proof that they satisfy the conditions laid down therein”. This provision mirrors established case law. Thus in Case No C-408/03 Commission v Belgium  the Court states at [64]:

“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.”

90. What the above means for applicants and appellants seeking to rely on EEA rights is that unless able to point to a specific provision of Community law limiting the need to produce evidence, applicants and appellants must expect that a failure to produce relevant evidence may well mean that the decision in their case will be a negative one, based on their failure to substantiate that they have any EEA right. 

91. So far as the standard of proof is concerned,  Keene LJ ruled in Zackaria Muhidin Ali [2006] EWCA Civ 486 that under (the then applicable) EEA Regulations, he could “ see no basis on which it could be said that the judge was wrong to apply the normal civil standard of proof”. 

92. Nothing we say here should be taken as attempting to furnish any answer to the separate question of whether the (legal and/or evidential) burden of proof  shifts to the host member State when it is seeking to deprive a person of an existing right of residence, most clearly in the case of revocation of residence documentation. Our focus in this case is exclusively on persons seeking to establish such a right. 

93. To conclude, the immigration judge did err in law in two respects when assessing whether the first appellant was a jobseeker or a self sufficient person or both. His errors were not, however, material ones, since on the evidence before the immigration judge the first appellant did not meet the requirements of being a jobseeker within the meaning of the 2006 Regulations. Nor did that evidence establish that he was a self-sufficient person.

94. For the above reasons, the immigration judge did not materially err in law and so his decision to dismiss the appellants’ appeals must stand.

Signed:

Dr H H Storey (Senior Immigration Judge)