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Caselaw

New ruling on Retained Rights of Residence

Posted by Ilham Malik on October 02, 2018

Gauswami (retained right of residence: jobseekers) India [2018] UKUT 00275 (IAC)

This was an appeal before the Upper Tribunal which held that the interpretation of ‘worker’ in regulation 10(6)(a) of both the Immigration (European Economic Area) Regulations 2006 and the Immigration (European Economic Area) Regulations 2016 included reference to a ‘jobseeker’.

Brief facts and chronology

The appellant is an Indian national born on 21st November 1985. On 20th July 2008 she married a Portuguese national, Mr V, in India. Following their marriage, the appellant entered the UK with a family permit and was subsequently granted a residence card as the family member of an EEA national valid until 26th October 2014.

The appellant’s marriage subsequently broke down and she alleged that she had been duped into returning to India in October 2011 where she was informed that her visa had been cancelled. She later returned to the UK to a bid to reconcile with her husband in March 2013 and resided with a friend, Mrs G, until she returned to India in July 2013. The appellant claimed that she worked for Mrs G without payment. 

In March 2014,  the appellant was notified that divorce papers had been received. On 25th April 2014, she signed up to receive jobseekers allowance until she obtained employment in October 2014. 

Mr V had filed his petition for divorce on 23rd October 2013 and the decree absolute was issued on 29th April 2014. 

On 2nd September 2015, the Secretary of State for the Home Department (Respondent) refused the appellants application for a residence card on the basis of a retained right of residence as the former spouse of an EEA national. The appellant’s appeal was further dismissed by the First-tier Tribunal. The First-tier Tribunal found that at the date of divorce, the appellant failed to demonstrate that she was a worker, a self-employed person or a self-sufficient person within the terms of paragraph 6 of Regulation 10 the 2006 EEA Regulations. The relevant section provides:

Family member who has retained the right of residence”

 (6)        The condition in this paragraph is that the person—

(a)            is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or

(b)            is the family member of a person who falls within paragraph (a).”

 

The Upper Tribunal Decision

The Upper Tribunal allowed the appeal finding that the appellant was a worker at the date of divorce. The Tribunal held that ‘worker’ was defined within the meaning of Article 45 of the Treaty on the Functioning of the European Union, following the case of Antonissen (R v Immigration Appeal Tribunal ex parte Antonissen) (C-292/89).   In this case, the European court interpreted the Article (which was previously Article 48) as to include certain categories of job seekers.

In addition, the Tribunal considered derived rights of residence of family members as an aspect of the respect to be accorded to family life and human dignity per Recital (15) to the 2004 Directive. At paragraph 45 the Tribunal found:

“Viewed in this light, there is in our view a powerful reason why Article 45 of the Treaty must be interpreted as meaning that a family member who, at the date of decree absolute, is a jobseeker falls to be treated as a ”worker”. This is so, whether one looks at the matter solely by reference to the 2004 Directive or, as the Grand Chamber did in Lounes, through the prism of Article 21(1) of the Treaty. The approach adopted in Lounes leads to the same outcome because of the requirement that any conditions must not be stricter than those provided by the 2004 Directive.” 

The Tribunal further noted that the issue is with the Regulations for not correctly transposing the law:

“53.     In any event, we can detect no rational reason why the appellant should lose a retained right of residence merely because she had not obtained employment at the date of the decree absolute. If such a result were demanded by the wording of the relevant EU legislation, or by EU caselaw, we would, of course, be required to follow that legislation. But, as we have shown, that is not the position. The 2006 Regulations are the problem. They did not correctly transpose the law on this issue. The same is true of the 2016 Regulations.”

Accordingly, the appellant had been a jobseeker for 5 days at the date of decree absolute and retained on that date her right of residence.

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