IP & Ors v The Secretary of State for the Home Department

This is a reconsideration of three appeals. The appellants are citizens of Bulgaria who are husband, wife and child. In a determination notified on 27 February 2009 Immigration Judge (IJ) A E Walker dismissed the first appellant’s appeal against a decision by the respondent dated 6 January 2009 refusing to issue him with a registration certificate as confirmation of his right of residence in the United Kingdom under EU law. She also dismissed the appeals of the second and third appellants against decisions of the same date refusing to grant them registration certificates as family members of a Bulgarian national who is exercising Treaty rights in the UK as a worker. All three were successful in obtaining an order for reconsideration which now falls for me to render.

Four things bear highlighting at the outset. First, Bulgaria (along with Romania) became an EU Member State on 1 January 2007 and nationals of these two countries became known as “A2 nationals”. Second, by virtue of the Accession (Immigration and Worker Authorisation) Regulations 2006 (SI 2006/3317, hereafter “the 2006 Accession Regulations”), nationals of Bulgaria were subjected to a requirement of worker authorisation and, unless falling under various exemption clauses, could not benefit in the same way as other European Economic Area (EEA) nationals from free movement rights accorded under Council Directive 2004/38/EC (“the Citizens Directive”) and the corresponding UK legislation, the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003, hereafter “the 2006 EEA Regulations”) in particular. Third, the 2006 Accession Regulations have since been amended by the Accession (Worker Authorisation and Worker Registration) (Amendment) Regulations 2007 (SI 2007/3012). The latter includes amendments to reg 2 of the 2006 Accession Regulations. Fourth, however, none of these measures affected the ability of Bulgarian nationals, as EEA nationals, to benefit from rights accorded by the 2006 EEA Regulations to non-worker categories, i.e. as students or self-sufficient persons or self-employed persons.

The three appellants’ immigration histories and the first appellant’s work record are also of some importance. The first appellant entered the United Kingdom on 30 April 1999 for 6 months. On the basis of an application made on 26 October 1999 he was granted discretionary leave to remain on 24 July 2004 for two years; this was not subject to any condition restricting employment. On 30 June 2006 he applied for indefinite leave to remain. On 8 November 2007 the respondent wrote stating that his application was still outstanding. On 30 October 2007 his application was deemed to have been withdrawn for the reason that he had left the country for a period. He was said to have been re-admitted as an EEA national. On 5 December 2008 the first appellant applied for a registration certificate to confirm he was an EEA national entitled to a registration certificate as a worker exempt from worker authorisation requirements. The second appellant married the first appellant on 3 May 2005 and came to the UK in June 2005 and has been here continuously since then except for short periods. The third appellant was born in Norwich on 13 September 2006. They both applied for a registration certificate at the same time as the first appellant, as family members of the first appellant.

Two aspects of the first appellant’s immigration history are of particular import: first, that it is not in dispute that on 31 December 2006 he was in the UK and was entitled to work without restriction by virtue of s.3C(1) of the Immigration Act 1971 due to the fact that his application for indefinite leave to remain (ILR) made on 30 June 2006 was still outstanding; and second, that during 2007 all three appellants returned to Bulgaria (for relatively short periods) before returning to the UK.

During 2006 and 2007 the first appellant worked for a number of employers and was able to produce ample evidence of that at the hearing in the form of numerous payslips and tax documents. Potentially, therefore, he stood to benefit from reg 2(3)) of the 2006 Accession Regulations which exempts from the requirement of worker authorisation a national of Bulgaria or Romania if he was legally working in the UK on 31 December 2006 without interruption for a period of 12 months up to 31 December 2006. Reg 2(3) provides:

“(3)

A national of Bulgaria or Romania is not an accession State national subject to worker authorisation if he was legally working in the United Kingdom on 31st December 2006 and had been legally working in the United Kingdom without interruption throughout the period of 12 months ending on that date.”

Before the IJ the first appellant’s principal submission was that he fell within the reg 2(3) exemption by virtue of having 12 months of continuous lawful employment immediately prior to 31 December 2006. That submission fell on stony ground, the IJ correctly observing that, since the first appellant had himself accepted that (contrary to reg 12(2)(c)) there were in excess of 30 days during 2006 when he did not work, there had been interruption. In the IJ’s opinion it followed from the first appellant’s failure to bring himself within the reg 2(3) exemption that he was not entitled to a registration certificate, nor, in turn, were his wife and child.

The appellants’ grounds for reconsideration make no attempt to revive the reg 2(3) issue but argue that the IJ simply overlooked that the first appellant was entitled to benefit from a separate exemption under the 2006 Accession Regulations embodied in reg 2(2). They contend that reg 2 should be construed as identifying a series of exceptions to the rule that an A2 national is subject to the worker authorisation requirement and that reg 2(2) is one such exception. Their author points out (correctly) that this issue should have been addressed by the IJ because it had been clearly identified in paras 6 and 7 of the original grounds of appeal. Mr Morris reiterated these grounds in his skeleton argument and oral submission. Mr Melvin said that the respondent did not accept that reg 2(2) was free-standing and considered that reg 2(2)-(4) were inextricably linked.

If the grounds for reconsideration are right, then the IJ clearly did err in law. In order to decide the issue it is necessary to set out reg 2 in full. As already noted, it was amended by the 2007 Accession Amendment Regulations. These came into force on 16 March 2007. Reg 2 now provides:

“Accession State national subject to worker authorisation

2 (1) Subject to the following paragraphs of this regulation, in these Regulations "accession State national subject to worker authorisation" means a national of Bulgaria or Romania.

(2)

A national of Bulgaria or Romania is not an accession State national subject to worker authorisation if on 31 December 2006 he had leave to enter or remain in the United Kingdom under the 1971 Act that was not subject to any condition restricting his employment or he is given such leave after that date.

(3)

A national of Bulgaria or Romania is not an accession State national subject to worker authorisation if he was legally working in the United Kingdom on 31st December 2006 and had been legally working in the United Kingdom without interruption throughout the period of 12 months ending on that date.

(4)

A national of Bulgaria or Romania who legally works in the United Kingdom without interruption for a period of 12 months falling partly or wholly after 31st December 2006 shall cease to be an accession State national subject to worker authorisation at the end of that period of 12 months.

(5)

A national of Bulgaria or Romania is not an accession State national subject to worker authorisation during any period in which he is also a national of—

(a)

the United Kingdom; or

(b)

an EEA State, other than Bulgaria or Romania.

(6)

A national of Bulgaria or Romania is not an accession State national subject to worker authorisation during any period in which he is the spouse or civil partner of a national of the United Kingdom or of a person settled in the United Kingdom.

(7)

A national of Bulgaria or Romania is not an accession State national subject to worker authorisation during any period in which he has a permanent right of residence under regulation 15 of the 2006 Regulations.

I would accept Mr Morris’s submission that most of the paragraphs comprising reg 2 are properly to be read as a series of separate exemptions. That is clear for several reasons. First, none of them are expressed as cumulative requirements (by use, e.g., of the word “and”). Second, they plainly delineate persons in a diverse range of situations: paragraphs (2)-(11) identify 10 separate situations in which a national of Bulgaria or Romania is not an accession State national subject to worker authorisation. Reg 2(2) deals with a national of Bulgaria (or Romania) who either had leave to enter or remain in the United Kingdom under the 1971 Act on 31 December 2006 that was not subject to any conditions restricting his employment or who is given such leave after that date; reg 2(3)-(4) deal with A2 nationals with a history of legally working in the United Kingdom without interruption for a period of 12 months ending on 31 December or falling partly before or after that date; reg 2(5) exempts A2 nationals who have concurrent UK nationality or the nationality of another EEA State other than Bulgaria and Romania; reg 2(6) exempts persons who are the spouse or civil partner of a UK national or a person settled in the UK; reg 2(7) exempts family members of EEA nationals who have a right to reside in the UK; reg 2(9) exempts highly skilled persons holding a registration certificate stating they have unconditional access to the UK labour market; reg 2(10), (10A) and (10B) exempt A2 nationals in the UK as a student (in certain specified circumstances); and reg 11(2) covers posted workers. It would be nonsense to suggest that a person could only show he was exempt under reg 2 if he was, at one and the same time, able to meet all of the requirements of reg (2)-(11). A person could not be at one and the same time, for example, a person here with leave to enter not subject to conditions restricting his employment, a student and a posted worker. Third (coming to Mr Melvin’s contention that reg 2(2)-(4) were inextricably linked), it is also easily discernible why reg 2(3)-(4) should apply separately from reg 2(2). The latter covers a person who either on 31 December 2006 had leave to enter or remain in the UK which is not subject to any condition restricting his employment as well as a person who was granted such leave since that date. Such a person does not necessarily have to have worked or be working in the UK. Reg 2 (3)-(4) provide a different set of pathways that are specifically for those with a history of 12 months unbroken lawful employment immediately before or after 31 December 2006.

Some illustration of the different purposes of reg 2(3)-(4) on the one hand and reg 2(2) on the other is afforded by Tribunal case law. In both EA (EEA: 3 months residence) Bulgaria [2008] UKAIT 00017 and in SH (A2 nationals-worker authorisation exemption) Bulgaria [2009] UKAIT 00020 the Tribunal had to consider the case of an appellant who sought to show, on the strength of working in the UK, that he met the reg 2(4) requirement of 12 months continuous lawful employment. In both cases the appellant failed to meet this requirement, albeit only by a few days. Neither appellant could have qualified under reg 2(2) because both had previously worked in the UK under a work permit and, as such, both were persons whose leave to enter or remain in the United was subject to a restriction, namely that they work only for a specific employer. In the first appellant’s case, by contrast, as at 31 December 2006 he was here with limited leave to remain that was not subject to any restriction on his employment. He was free to work for anybody.

In seeking to persuade me that the first appellant met the (self-standing) requirements of reg 2(2) Mr Morris drew attention to the wording of the application form which the first appellant had completed: BR (1). Section 7 of this form, headed “Exempt from Accession State worker authorisation” stated:

“If you had current leave to enter or remain in the United Kingdom under the 1971 Act you may be exempt from Accession State worker authorisation. If you can answer ‘yes’ to any of the following questions, you may be issued with a registration certificate to confirm that you can work in the UK without restrictions.

7.1

Are you a Bulgarian or Romanian national who had leave to enter or remain in the UK on 31 December 2006 (or have been given such leave after that date) under the 1971 Immigration Act and that leave was not subject to any condition restricting employment?

…”.

The first appellant had answered ‘yes’ to this question and he was correct to do so, submitted Mr Morris, because indisputably “on 31 December 2006 the first appellant had leave to remain in the UK with no restriction on his employment”.

I would accept that the wording of Section 7 of this form might lead an applicant to think that if he could show that on 31 December 2006 he had leave to enter or remain without a condition restricting employment he would necessarily be exempt, but the form is essentially seeking personal particulars, not giving legal guidance and, significantly, it does not say that a ‘yes’ answer necessarily means an applicant is exempt; it simply says that a ‘yes’ answer ‘may’ result in a registration certificate being issued. It remains in any event that an applicant can only succeed if he can meet the actual requirements of reg 2(2).

Had it not been for the amendment made to reg 2(2) by the 2007 Accession Amendment Regulations, I would not have accepted Mr Morris’s reading of reg 2(2) as affording an historic basis for exemption. In its previous form reg 2(2) read simply: “A national of Bulgaria or Romania is not an accession State national subject to worker authorisation if he has leave to enter or remain under the 1971 Act and that leave is not subject to any condition restricting his employment”. Unlike reg 2(3), that provision was cast in the present tense. Unlike reg 2(3), it was not tied to the position of an applicant as at 31 December 2006; it simply exempted a national of Bulgaria or Romania from worker authorisation “if he has leave to enter or remain in the United Kingdom under the 1971 Act and that leave is not subject to any condition restricting his employment.” (emphasis added). Under that previous wording the first appellant could not have qualified since his s.3C leave lapsed when he departed from the UK in February 2007: see s.3C(3) of the 1971 Act. The same applies to the two other appellants.

However, it is clear from use of the word “or” that reg 2(2) in its amended form does enable an A2 national to be exempt from worker authorisation either because of his historic position as at 31 December 2006 or because of his present position (“or he is given leave after that date”) Thus I consider Mr Morris’s submission on this point must prevail. Both the date of decision and the date of hearing of these appeals fell on dates after the 2007 Accession Amendment Regulations came into force (16 March 2007).

Accordingly the IJ erred in law in failing to recognise that the first appellant had a separate ground for claiming exemption from worker authorisation, based not on reg 2(3), but on reg 2(2) by virtue of the fact that on 31 December 2006 he had leave to enter or remain in the UK under the 1971 Act that was not subject to any condition restricting his employment.

It remains to consider, however, whether this error of law was material. In his skeleton argument and submissions Mr Morris sought to argue that the error had to be material since at the hearing before the IJ “the only issue was whether the first appellant was exempt from the worker authorisation requirements. Thus there was no issue as to whether he was a qualified person if he was so exempt, i.e. as either a worker or a jobseeker”. However, there was no concession by the respondent and in any event the relevant issue is a legal one: whether or not the first appellant meets the requirements for being issued with a registration certificate as set out in the 2006 EEA Regulations. In order to meet those requirements it is not enough that one be exempt from worker authorisation requirements. An A2 national who is exempt from worker authorisation will still be ineligible for a registration certificate unless he can show he is a qualified person under the 2006 EEA Regulations: see EA (EEA: 3 months residence) Bulgaria [2008] UKAIT 00017.

Thus the first appellant can only show he met those requirements by establishing that he is a qualified person under reg 6 of the 2006 EEA Regulations. Indeed, exemption under the 2006 Accession Regulations is not even essential to an A2 national being considered as to eligibility for a registration certificate in any capacity. It only controls whether he can be considered as a worker or a jobseeker (two closely related categories). An A2 national who fails to establish such an exemption can still qualify for a registration certificate if he can show he was a qualified person under one of the other categories of reg 6.

Although rejecting Mr Morris’s argument on materiality, I am nevertheless persuaded that the IJ’s error was a material one for a different reason. Her erroneous approach to the exemption issue had the effect of unduly narrowing her consideration of whether the first appellant was a qualified person, causing her to exclude consideration of him as a worker. Reg 6 of the 2006 Accession Regulations as amended provides:

“(1)

In these Regulations, ‘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.”

By finding that the first appellant was not exempt from worker authorisation the IJ wrongly excluded consideration of his position under reg 6(1)(b).

Having decided that the IJ materially erred in law, I decided that I was in a position to decide the appeals for myself, although only if I first gave the parties an opportunity to furnish further evidence updating the first appellant’s work history since the date of hearing before the IJ. By virtue of Schedule 1 to the 2006 EEA Regulations the appellants’ appeals are governed by s.85(4) of the Nationality, Immigration and Asylum Act 2002 and, in the context of a second-stage reconsideration, I must consider their eligibility for a registration certificate presently. Within the time limit set the appellants’ representatives wrote enclosing evidence to show that the first appellant had commenced employment on 3 September 2009. The respondent did not respond.

In my judgement, now that it has been established that the first appellant falls within one of the specified exemptions from worker authorisation requirements set out in reg 2 of the 2006 Accession Regulations, he is entitled to a registration certificate if he can show he is a qualified person within any of the subcategories of reg 6. In point of fact the IJ had looked at all of these except for that for a worker and had concluded that the first appellant satisfied none of them. It is unnecessary for me to analyse whether her analysis of these different possibilities was correct at the time of the hearing, since I have to assess the position now.

Self-evidently, the first appellant obviously cannot qualify as a student or as a self-sufficient person. Nor in my judgement can he qualify as a self-employed person, for two reasons. The first reason relates to his application for Jobseekers Allowance. As pointed out by the IJ, by applying for Jobseekers Allowance very soon after ceasing work he was demonstrating that he was available for employed work: as stated by Upper Tribunal Judge Rowland in CJSA/2687/2007, with reference to reg 6(2)(c)-(d) of the 2006 EEA Regulations:

“…it is plain that job-seeking for the purposes of subparagraphs (c) and (d) must relate to a preparedness to take up offers of employment as a worker made through an employment office and not merely opportunities for establishment as a self-employed person with which such offices do not generally deal”.

The second reason relates to the nature of the first appellant’s application. The BR (1) form he filled in contained several alternative sections: section 3, for those applying as a self-employed person, section 4 for those applying as a student, section 5 for those applying as a self-sufficient person and then various sections dealing with claims for exemption from Accession State worker authorisation, including section 7 relating to past employment. The first appellant left the self-employment (and student and self-sufficient person) sections blank and filled in only the section 7 worker authorisation exemption details. That is to say, the first appellant’s unequivocal position in his application form (and subsequently) has been that he was seeking a registration certificate on the basis of employment. Self-employment did not come into it. The definition of a ‘self-employed person’ contained in reg 4(1)(b) is that a:

“’self-employed person’ means a person who establishes himself in order to pursue activity as a self-employed person in accordance with Article 43 of the Treaty establishing the European Community”.

If it was the first appellant’s purpose, post-accession, to pursue activity as a self-employed person, he could have been expected to have said so.

I will pass over whether the first appellant qualifies as a jobseeker. Mr Morris did not argue that he was; as already noted the first appellant has an outstanding appeal against refusal of Jobseekers Allowance, on which I have no further information; and finally, I do not need to decide the matter in order to dispose of this appeal.

By a process of elimination the first appellant’s only avenue for demonstrating that he is a qualified person is if he can show he is a worker. Before reciting the facts of his case, it is useful to recall Tribunal case law. In RP (EEA Regs – worker – cessation) Italy [2006] UKAIT 00025 the Tribunal held:

“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”.

That the above propositions continue to reflect Community law principles can be seen from the recent judgement of the European Court of Justice (ECJ) in Vatsouras Case C-2/08 and Koupatantze Case 3/08, 4 June 2009 (2009) EUECJ C-22/08. The judgment concerned two Union citizens who were admitted to Germany and after employment of short duration became unemployed, giving rise, among other issues, to the question of whether they continued to be workers. At para 29 the Court stated:

“29.

Furthermore, with regard to the duration of the activity pursued, the fact that employment is of short duration cannot, in itself, exclude that employment from the scope of Article 39 EC (see Case C-3/90 Bernini [1992] ECR I-1071, paragraph 16, and Case C-13/01 Ninni-Orasche [2003] ECR I-13187, paragraph 25).”

At para 40 they emphasised the importance, when assessing whether a person remained a worker (and so be entitled to receive a benefit of a financial nature intended to facilitate access to the labour market), of the factor of whether that person could show he had established real links with the labour market of that State.

Turning to the first appellant’s situation three things stand out. First it is clear that since March 2007 (confining my consideration to his history since 16 March 2007 when the amended reg 2 of the 2006 Accession Regulations came into force) the first appellant had worked for at least five different employers. Even assuming that the IJ was right to classify three of these as self-employment (which in light of the Article 39 of the 2006 EEA Regulations concept of worker, as applied by reg. 4(1)(a) of the 2006 EEA Regulations, was perhaps questionable), the first appellant had clearly by those employments established ties with the national labour market. As noted by Advocate General Colomber in his Opinion in the Vatsouras Case [2009] EUECJ C-22/08_O at para 62 “…employment however modest does show that the person is capable of entering into an employment relationship “, and also at para 63: “Anyone wishing to join the workforce has better credentials if they have carried out responsibilities with a wage earning aspect of some kind in the past.”

Second, although the first appellant last worked in October 2008 he applied for Jobseekers Allowance very soon after. That is significant (irrespective of whether or not he was eligible) in that it shows that once he fell unemployed he was seeking a benefit of a financial nature intended to facilitate his return to the labour market. I also bear in mind that as a result of refusal decisions both from the DWP (of his application for Jobseekers Allowance) and from the respondent refusing his application for a registration certificate, the first appellant must have been in some state of uncertainty about his ability to work lawfully.

Third, even assuming he had remained unemployed since October 2008 until the date of hearing before the IJ, he has now, since 3 September 2009, recommenced employment. Whilst it is implicit in what the ECJ say in Vatsouras that employment for only a short period may not suffice to make someone a worker within the meaning of Article 39, the first appellant’s very recent employment has to be considered in the context of his previous real links with the labour market together with his plain intention (evinced through his claim for Jobseekers Allowance) to return to the labour market.

In short, his particulars lead me to conclude that he had established ties with the national labour market in March 2007- October 2008; and that, even though there is no evidence to show that he became employed again until 3 September 2009, the surrounding circumstances satisfy me that he had not ceased to maintain an active interest in rejoining the labour market. Accordingly I consider that the first appellant’s current circumstances bring him within the category of worker within the meaning of reg 6(1)(b) of the 2006 EEA Regulations, which (via reg 4(1)(a)) refers to the meaning of that term under Article 39 of the E.C. Treaty.

For the above reasons, the IJ materially erred in law. The decision I substitute for his is to allow the appellants’ appeals. By virtue of being a qualified person under reg 6 of the 2006 EEA Regulations the first appellant is entitled to a registration certificate under reg 16(1). The second and third appellants are also entitled to registration certificates under reg 16(3).