Tribunal decisions

The decision

Asylum and Immigration Tribunal

RP (EEA Regs – worker – cessation) Italy [2006] UKAIT 00025

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 18 January 2006
On 10 March 2006

Before

dr h h storEY (senior immigration Judge)
Mr GERAINT JONES QC (Immigration Judge)

Between

Appellant

and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Miss C Bayati, Counsel, instructed by Scudamores Solicitors
For the Respondent: Miss J Webb, Home Office Presenting Officer

1. A person who has been a worker within the meaning of Community law does not cease to be a worker simply by virtue of falling unemployed, but he must be able to show that he has been genuinely seeking work and has not effectively abandoned the labour market.

2. In assessing whether a person has satisfied the condition that he is or has remained a worker, the national court must base its examination on objective criteria and assess as a whole all the circumstances of the case relating to the nature of both that person’s activities whilst in the Member State and any employment relationship(s) at issue.

DETERMINATION AND REASONS

1. The appellant is an Italian national born on 8 July 1967. He arrived in the UK on 30 April 1999. On 4 December 2004 he applied for an EEA residence permit and residence documents for his spouse and dependant. On 7 June 2005 the respondent decided to refuse to issue a residence permit under Reg 29 of the Immigration (European Economic Area) (Amended) Regulations 2003; with reference to Regulation 5(1) of the Immigration (European Economic Area) Regulations 2000 (hereafter ‘the 2000 Regulations’). The appellant appealed. In a determination sent out on 19 October 2005 the Immigration Judge, Mr C.G. Kelsey, dismissed his appeal.

2. The appellant successfully applied for an order for reconsideration. The Immigration Judge gave two principal reasons for dismissing the appellant's appeal. Firstly the appellant had failed to furnish any evidence in response to the request by the respondent and had failed to gave a satisfactory explanation for this failure. Secondly and in any event, he did not consider the appellant had shown he was a qualified person within the meaning of Reg 5 of the 2000 Regulations. He noted that after arriving in the UK at the end of April 1999 the appellant had only worked a total of about four months since then. He continued:

‘I note from the European Court of Justice case [C-413/01 Ninni-Orasche case] that a period of two and a half months work could confer on a person the status of a worker, providing that the activity performed was not purely marginal and ancillary. I have no information or case law to define further what might be called marginal or ancillary. In any event, the appellant clearly needs to comply with paragraph 5 of the 2000 Regulations, and to bring himself within those regulations. The appellant has not satisfied me that he has not ceased to be a qualified person. To prove that he is still qualified he would need to show that he is temporarily incapable of work and as a result of illness or accident, or show that he is involuntarily unemployed. The evidence appears to show that the appellant has been claiming incapacity benefit for over two and a half years. I would not normally consider that to come within the definition of “temporarily incapable”. The appellant has not provided any information from a medical practitioner or a report, showing what his incapacity is or when he might be fit again for work. Nor can the appellant in my view satisfy the burden of proof in showing that he is involuntarily unemployed. The evidence produced as to his efforts to obtain work are few in number and totally inconclusive. There is no evidence as to how many job applications he made, or interviews he attended.’

3. By virtue of the appellant's appeal failing, the Immigration Judge considered that the appeals of his dependants also failed. In the case of the appellant's partner, she failed for the additional reason that she was not a spouse.

4. The grounds of reconsideration contended that the Immigration Judge erred in law in failing to find that the appellant was a qualified person within the meaning of Regulations 5 and 15 of the 2000 Regulations. The grounds break down into three principal ones. The first ground placed focus on the appellant being regarded as a worker. Given that the Immigration Judge had accepted the appellant worked full time for a total of four months, he was wrong to consider that case law on whether part-time work was ‘marginal and ancillary’ was relevant. The second ground looked at the treatment by the Immigration Judge of the position of the appellant at the date of decision. Had the Immigration Judge recognised that the appellant had continued to be a worker until he was awarded incapacity benefit, he would then have been obliged to accept that at the date of decision the appellant was involuntarily unemployed by virtue of his medical condition, which prevented him from taking up employment. Further, the evidence showed that previously he had applied for jobs albeit he had not been selected.

5. The third ground was set out as follows:

‘In any event, even if the appellant is “permanently incapable” to work as the judge speculated (paragraph 17), the applicant is entitled to [a] residence permit under 257(iii) of the Immigration Rules. The rule says: ‘... the following persons will be permitted to remain in the UK indefinitely ... an EEA national who has been continually resident in the United Kingdom for at least two years, and who has ceased to be employed owing [to] a permanent incapacity for work.’ The appellant has been in the UK for more than two years and receiving incapacity benefit after he had worked for four months in the UK”.’

6. Before proceeding further we should set out the relevant provisions of the Immigration (European Economic Area) Regulations 2000. Regulation 5 states:

“‘Qualified person’

(1) In these Regulations, ‘qualified person’ means a person who is an EEA national and in the United Kingdom as –

(a) a worker;
(b) a self-employed person;
(c) a provider of services;
(d) a recipient of services;
(e) a self-sufficient person;
(f) a retired person;
(g) a student; or
(h) a self-employed person who has ceased activity; or who is a person to whom paragraph (4) applies.

(2) A worker does not cease to be a qualified person solely because –

(a) he is temporarily incapable of work as a result of illness or accident; or
(b) he is involuntarily unemployed, if that fact is duly recorded by the relevant employment office.

(3) A self-employed person does not cease to be a qualified person solely because he is temporarily incapable of work as a result of illness or accident.

(4) This paragraph applies to –

(a) the family member of a qualified person referred to in paragraph (1)(h), if –

(i) the qualified person has died; and
(ii) the family member was residing with him in the United Kingdom immediately before his death;

(b) the family member of a qualified person referred to in paragraph 1(b) where-

(i) the qualified person has died;
(ii) the family member resided with him immediately before his death; and
(iii) either-
(aa) the qualified person had resided continuously in the United Kingdom; or

(bb) the death was the result of an accident at work or an occupational disease; or

(cc) his surviving spouse is a United Kingdom national.’

(5) For the purposes of paragraph (4)(b), periods of absence from the United Kingdom which do not exceed three months in any year or periods of absence from the United Kingdom on military service are not to be taken into account.’

7. The 2000 Regulations implement a number of EU instruments relating to the freedom of movement of workers and related categories. At paragraph 3(1)(a) they state that ‘In these Regulations – (a) ‘worker’ means a worker within the meaning of Art 39 of the EC Treaty’.

8. We should perhaps mention that as from 30 April 2006 almost all of these provisions are to be repealed and replaced by Directive 2004/38/EC on the right of citizens of the Union and their families to move and reside freely within the territory of the Member States amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 90/364/EEC, 90/365/EEC, 93/96/EEC: for text see Phelan pp. 1034-1059.

Our Assessment
9. We do not consider that the Immigration Judge erred in law in his analysis of the appellant's working history. He can be criticised for failing to spell out in what way the ECJ case law on work which was ‘marginal and ancillary’ applied to the facts of this case. But in our view he was right to treat such case law as relevant. The assertion that such case law is exclusively confined to part-time work is untenable. The ECJ formulation of the ‘marginal and ancillary’ test treats it as a test to be made of work of all kinds. Thus, for example, in Case 197/86 Brown v Secretary of State for Scotland [1988] ECR 3205 (para 21) it is stated:

‘The concept of a worker within the meaning of Article 8 of the Treaty and of Regulation No. 1612/68 has a Community meaning. Any person who pursues an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, is to be treated as a worker’.

10. Certainly the ‘marginal and ancillary’ test has obvious and particular application to part-time work, but the way in which the ECJ has formulated the ‘genuine and effective’ test plainly does not confine it to that.

11. However, we consider that the Immigration Judge did err in law in his approach to the appellant's position in relation to Article 5 of the 2000 Regulations. He purported to dismiss the appeal under 5(2) because he considered the appellant could not bring himself within the definition of a ‘qualified person’ in respect of whether he was temporarily incapable of work or involuntarily unemployed. But Regulation 5(2) is concerned only with identifying two specific circumstances in which a person does not cease to be a qualified person; and, in relation to those circumstances, the subparagraph is limited to identifying that they cannot on their own constitute reasons for deciding that a person has ceased to be a worker. Regulation 5(2) is not intended to define exhaustively the circumstances which can mean that a person has ceased to be a worker. Furthermore, before addressing Reg 5(2), the Immigration Judge should have made clear findings on the logically prior question of whether the appellant had ceased to be a worker for generic reasons.

12. Thus we consider that this was a material error of law on the part of the Immigration Judge since the basis on which he dismissed the appeal, namely Regulation 5(2) of the 2000 Regulations, was not one he could logically proceed under without first deciding whether the appellant had ceased to be a worker at the relevant time for generic reasons.

13. Having decided there was a material error of law, we turned to consider what decision we should substitute for that of the Immigration Judge. We saw no reason to adjourn, as the appellant's representatives had had ample opportunity to furnish further evidence and had done so. We also had the benefit of full submissions from both parties.

Appellant’s employment and claiming history
14. There is some doubt as to the precise details of the appellant's employment and claiming history. From his witness statement of 15 September 2005 and accompanying documents, we derive the following main points:

(i) He arrived in the UK on 30 April 1999. He was already suffering from social phobia (Social Anxiety), having been on medication for a long time.

(ii) From 3 June 1999 – 20 July 1999 he worked as a kitchen porter at Nando’s Chicken Land. He saw his GP at this time who prescribed medication.

(iii) From 20 July 1999 – 12 October 1999 he worked in Sticky Fingers restaurant in Kensington.

(iv) He then worked for a week as a technician at a computer design company. He had been dismissed but, after challenging this decision, he received four weeks wages from his employers in an agreed settlement. (The chronology from him and his representatives says the date was in September 2001, but a P45 they submitted specifies the date he left his previous employment as being 28 August 2001. In our view nothing turns on this small difference.)

(v) After he was dismissed he claimed unemployment benefit (Job Seekers Allowance) ‘for a while’.

(vi) In 2002, following suggestions from the Job Centre that he could claim incapacity benefit, he applied for and was awarded incapacity benefit for a year. Previously, during 2001, he had attended Coping Skills courses and Anxiety Management classes.

(vii) He applied for a residence permit for himself and his family on 4 December 2004.

(viii) We remind ourselves here that the date of decision on his application was 7 June 2005.

15. From the above summary one can see that the appellant has not been able to state when in 2002 he began claiming incapacity benefit. However, he has submitted a number of letters from Jobcentre Plus from which it would appear that he had also been in receipt of Job Seekers’ Allowance for some period or periods prior to his one week of employment in August/September 2001. It would also appear that he continued to be in receipt of Job Seekers’ Allowance until at least 14 April 2002 (this is what is stated on one of the P45s submitted) and that the earliest documented mention of him being in receipt of incapacity benefit is 10 January 2003 in the form of a Benefits Agency letter. Additionally, in support of his claim to have been actively seeking work during all his periods of employment up until the time he was awarded incapacity benefit, he has submitted seven letters relating to job applications or inquiries.

16. We find it quite remarkable that the appellant through his representatives has not been able to assist the court better than he has as regards his work-seeking and claiming history. It would have only required one letter to Jobcentre Plus to elicit confirmation of precisely how long the appellant has been in receipt of Job Seekers Allowance and for what periods and how long he had been in receipt of incapacity benefit. He has had ample opportunity to adduce further evidence. Nevertheless we have to reach a decision on such evidence as is before us.

17. Despite the gaps in the evidence submitted regarding the appellant's work-seeking and claiming history, the following background matters are not in dispute:

18. Firstly, since arriving in April 1999 the appellant has only worked for a total of around eighteen weeks, and, since October 1999, he had only worked just the one week in August/September 2001.

19. Secondly, although it is the appellant's contention that up until the point when he became incapable of work he was actively seeking work, in support of this contention he has only been able to produce letters relating to three job applications or enquiries for 1999 (one on 19 July 1999, one on 26 July 1999, one on 16 November 1999), one for 2000 (on 13 June 2000) and three for 2002 (one on 3 April 2002, one on 26 April 2002 and one on 30 May 2002).

20. Thirdly, for some or all of the period when unemployed, at least until 14 April 2002, he claimed Job Seeker’s Allowance. Job Seeker’s Allowance, of course, is only awarded to persons able to show they are available to work: so much was agreed by the parties during oral submissions as being an accepted fact.

21. Fourthly, the appellant appears to have suffered from social phobia (Social Anxiety) even before he came to the UK. Whilst there did come a point when this condition was found to prevent him from working, this point was not reached until at the very earliest, 14 April 2002. (Given the job enquiry of 30 May 2002, it was probably later than 14 April 2002, but we shall assume the April date as being the most favourable to the appellant's case.)

22. Fifthly, although we do not have full evidence, it would appear that from some point in 2002, 14 April 2002 at the earliest, the appellant has been assessed as incapable of work and for that reason in receipt of incapacity benefit, and that this continues to be the case.

The applicable legal framework
23. The question arises, what are we to make of these background matters in relation to the central question before us of whether the appellant was a worker at the date of decision? It was agreed by the parties that the date of decision was the material date, although for completeness we shall also have regard to the situation as at the date of application.

24. From established case law we extract the following principles.

25. The Court has consistently held that the concept of worker has a Community meaning and must not be interpreted in a restrictive manner: (Case 53/81 Levin v Secretary of State for Justice [1982] ECR 1035).

26. There is no single definition of worker/employed or self-employed person in Community law; it varies according to the area in which the definition is to be applied (Case C-985/96 Martinez Sala [1998] ECR 1-2691, paragraph 31). In this case the decision appealed against relates to United Kingdom Regulations implementing a number of EEC measures, including Council Regulation (EEC) No. 1612/68.

27. The essential characteristic of an employment is that for a certain periods a person performs services for and under the direction of another person in return for which he receives remuneration (Case 197/86 Brown v Secretary of State for Scotland [1988] ECR 3205 (para 21).

28. A person becomes a worker through economic activity establishing a genuine link with the labour market (Case C-138/02 Collins v Secretary of State for Work and Pensions [2004] ECR 1-2703).

29. Having acquired the status of worker for the purpose of Council Regulation (EEC) No. 1612/68, a person who then ceases employment retains that status whilst unemployed and looking for work. It does not matter that the employment was left voluntarily, so long as the circumstances of leaving indicate that the person still intended to remain in the labour market (Lair v Universitat Hannover [1988] ECR 3161, ECJ considered) (paragraph 21).

30. However, EU rules on freedom of movement of workers cover only the pursuit of effective and genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary (judgment in Case 523/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035, paragraph 17).

31. Further, there is no legal principle in EU law that a person who has become a worker within the meaning of Community law continues to be a worker irrespective of his subsequent history of employment or unemployment.

32. Whilst to continue to be a worker it is not necessary that a person is employed, it is necessary that there be on his part no abandonment of the labour market. In Raulin v Minister van Onderwijs en Wetenschappen (Case C-357/89 [1992] ECR 1027) it is stated:

’14. The national court may, however, when assessing the effective and genuine nature of the activity in question, take account of the irregular nature and limited duration of the services actually performed under a contract for occasional employment. The fact that the person concerned worked only a very limited number of hours in a labour relationship may be an indication that the activities exercised are purely marginal and ancillary. The national court may also take account, if appropriate, of the fact that the person must remain available for work if called upon to do so by the employer’.

33. Thus the duration of the activities pursued by the person concerned is a factor which may be taken into account by the national court when assessing whether these activities are effective or genuine or whether on the contrary they are on such a small scale as to be regarded as purely marginal and ancillary.

34. In assessing whether a person is or remains a worker, account should be taken of all the occupational activities which the person concerned has pursued within the territory of the host Member State but not the activities which he has pursued elsewhere in the Community (Raulin, paragraph 19).

35. In assessing whether a person has satisfied the condition that he is or has remained a worker, the national court must base its examination on objective criteria and assess as a whole all the circumstances of the case relating to the nature of both the activities concerned and the employment relationship at issue (Ninni-Orasche Case C-413/01).

36. A person cannot qualify as a worker or continue to qualify as a worker by an abuse of rights characterised by attempts to seek or perform work which are not genuine. In assessing the genuine nature of work–seeking activities, it is proper to have regard to what evidence a person provides (Case C-292/89 R v Immigration Appeal Tribunal, ex parte Antonissen [1991] ECR 1-745).

Our conclusions
37. Applying these principles to the facts of this case, we are not satisfied that the appellant was still a worker either at the time he applied for a residence permit (4 December 2004) or at the date of decision (7 June 2005).

38. We are prepared to accept that he had been a worker within the meaning of EU law for a certain limited period after arrival in the UK. In this regard we note that during his first five-and-a-half months in the UK, i.e. between his date of arrival in the UK on 30 April 1999 and 14 October 1999, he was employed for all but the first month. In that period we accept he established a genuine link with the labour market.

39. However, as already noted, the fact that he was a worker then does mean that he is necessarily to be regarded as a worker indefinitely thereafter. Our examination must be based on objective criteria and look at all the circumstances of his case relating to his work-seeking and his employment relationships as well as his personal circumstances. Several observations are in order here.

40. Considering the period he has been in the UK, up until his date of application for a residence permit, between 30 April 1999 and 4 December 2004, some four years seven months, the appellant has worked for only four-and-a-half months. Even limiting the relevant period up until the date when he was considered eligible for invalidity benefit (and so incapable of work) between 30 April 1999 and at the earliest, 14 April 2002, some two years ten months, he had only worked for four-and-a -half months.

41. Since 1999, during which year he worked for most of the period between arrival in the UK and mid-October 1999, he has only worked for one week. There is some issue as to whether he was unfairly dismissed from this brief employment in August/September 2001 but on his own account the settlement he agreed was limited to payment to him of his period of notice (four weeks). We regard that employment, even though it was full time for its short duration, as being marginal and ancillary. Hence we think that by the end of 2001 he had ceased to be a worker within the meaning of the 2000 Regulations and underlying Community Law.

42. It is the appellant's position that throughout the period when he has been unemployed up until the time he became eligible for incapacity benefit (which he placed at some time in 2002), he was actively seeking work. However, the only evidence he has produced in support consists of a limited number of letters. Only one relates to 2000, there are none for 2001, and only three for 2002. In our view this evidence indicates that after October 1999 efforts to seek work were half-hearted and spasmodic. We note further that there is nothing to suggest that these letters were an illustrative rather than an exhaustive list since, by virtue of claiming Job Seekers’ Allowance, the appellant should have been in a position to document all his job enquiries, four of which post-dated 1999.

43. In such circumstances we are satisfied that the appellant had ceased to be a worker well before he became eligible for incapacity benefit (he became so eligible either in 2002 or early 2003).

44. Miss Bayati has submitted that the appellant should be seen as continuing to be a worker up until the date when he received incapacity benefit by virtue of a combination of (i) the fact that during the periods when he was unemployed he was actively seeking work; and (ii) the fact that he was incapable of work for medical reasons.

45. However, as we have already indicated, when examining his history of seeking work, we do not consider that it was sufficiently sustained. We agree in this respect with the Immigration Judge's observations at paragraph 17: ‘The evidence produced as to his efforts to obtain work are few in number and totally inconclusive’. It is true that the appellant has maintained that he was continuously seeking work, but, properly weighed, the evidence simply does not bear this out.

46. Miss Webb sought to argue that in examining whether the appellant had ceased to be a worker, we should not only focus on his periods of employment and unemployment, but also on his periods in receipt of incapacity benefit.

47. Miss Bayati on the other hand contended that eligibility for incapacity benefit is dependent on the Department of Work and Pensions being satisfied that an appellant is incapable of work and it was wrong that one arm of the United Kingdom government should seek to argue (as did Miss Webb) that another arm charged with assessing incapacity for work was wrong to assess the appellant was incapable of work during the relevant period. In the event we did not find it necessary to decide this issue as we were satisfied the appellant had ceased to be a worker before the time when he first obtained incapacity benefit.

48. At this point we need to clarify further here the question of the precise period during which the appellant has been in receipt of incapacity benefit. On the appellant's own account, his last short period of work in 2001 was followed by a period of receiving Job Seeker’s Allowance. He then shifted over to incapacity benefit. In his statement of 15 September 2005 he stated that:

‘After I was dismissed I claimed unemployment benefit (Job Seekers Allowance) for a while. The Job Centre people suggested that I should claim incapacity benefit as I was not able to concentrate and they knew that I was under medication. Therefore I applied for incapacity benefit in 2002. The Job Centre people sent me to their doctor for an assessment and I (sic) was found that I met the threshold of incapacity under the PCA. The Job Centre Plus people would assess my eligibility for incapacity at least for each year.’

49. Up to this point we have assumed in the appellant's favour that the date on which he first received incapacity benefit could have been as early as April 2002. However, so far as the date of receipt of this benefit (as opposed to date of application for it) is concerned, the strict evidential position is that the earliest reference to the appellant being in receipt of incapacity benefit is a letter from the Benefits Agency dated January 2003 referring to payment of incapacity benefit being included with his income support. Thereafter there is a letter of 9 September 2005 from Job Centre Plus stating that they can ‘confirm that you have been receiving incapacity benefit as follows: From 15/4/2004 to 13/4/2005 and from 14/4/2005 continuous.’

50. Depending therefore whether we accept the earliest possible date (April 2002) or the more likely evidential date (January 2003), the appellant has spent either two and a half years (October 1999 to April 2002) or three years two months (October 19099 to January 2003) being professedly available for work but not in work.

51. This bring us back to the point that, although the appellant says he was actively looking for work, there is insufficient evidence before us to accept that as a fact.

52. Miss Bayati maintains, however, that the appellant’s work-seeking activities have to be placed in the context that he has had medical problems for a long time. That he has had medical problems is confirmed by his eventual receipt of incapacity benefit. However, there is nothing before us to indicate that prior to receipt of incapacity benefit the appellant's medical problems prevented him from actively seeking work. In this regard we agree with the Immigration Judge that the appellant, despite having been clearly asked by the respondent to produce a letter or report confirming the nature of his illness, failed to do so. His own evidence about his medical problems, together with the Trainee Clinical Psychologist’s letter of 12 March 2001, the Newton Medical Centre letter of 6 August 2001 and the Occupational Therapist letters of 10 August 2001 does demonstrate that he was having problems with social phobia and needed assistance with developing coping skills, but it does not show that during this period he was unable to work.

53. For the above reasons we have concluded that well before the date of application (and the date of decision) the appellant had ceased to be a worker and thus he did not fall within the provision of Reg 5(1) of the 2000 Regulations. As such, his position did not need to be considered under the provisions of Reg 5(2) since the latter presupposes a person being a worker and who then becomes temporarily incapable of work or involuntarily unemployed.

54. As conceded by Miss Bayati, the appeals of the appellant's dependants must fall along with his appeal.

55. There remains the third ground of appeal which contended that the appellant should nevertheless be able to succeed under paragraph 257(iii) of the Immigration Rules by virtue of being ‘an EEA national who has been continuously resident in the United Kingdom for at least two years, and who has ceased to be employed owing to a permanent incapacity for work’.

56. We can be brief in respect of this ground since, whilst the appellant has demonstrated that for some time he has been regarded by the UK Department of Work and Pensions as incapable of work, he has not produced any evidence to show that he has been considered to be permanently incapable of work. If such a decision had been taken it would be reflected in the evidence we have about the current basis on which he receives incapacity benefit. It is not.

57. For the above reasons we have concluded that:

The Immigration Judge materially erred in law.
The decision we substitute for that of the Immigration Judge is to dismiss the appeal.

Signed Date

Dr H H Storey
Senior Immigration Judge