Surraya Begum v Secretary of State for the Home Department

An EEA national is a worker only if they pursue activities that are effective and genuine. The EU-law meaning of worker is broad and does not depend on the type of employment or amount earned. However, activities that are purely marginal or ancillary, or have no economic value to the employer, do not qualify.

A person claiming jobseeker status must have entered the United Kingdom to seek work and provide evidence both of continuing jobseeking and of a genuine chance of engagement. A bare assertion is insufficient. A professionally represented appellant must ordinarily raise and evidence that basis of entitlement before the Immigration Judge.

The Secretary of State refused the appellant a residence card as the family member of her Italian husband. The refusal rested on insufficient reliable evidence that he was a worker for the purposes of the Immigration (European Economic Area) Regulations 2006.

An Immigration Judge dismissed the appeal on 18 February 2010. She found that the purported employer's business had insubstantial foundations and limited prospects of viability. The appellant appealed to the Upper Tribunal, contending that her husband was a worker and, alternatively, that he was a jobseeker because he was looking for a second job.

The central issues were whether the Immigration Judge had erred in her assessment of worker status and whether she should have considered jobseeker status of her own initiative.

1. Appeal dismissed. The Immigration Judge made no error of law in finding that the appellant's husband was not a worker. The term has an autonomous and broad EU-law meaning, but requires effective and genuine activity. The Tribunal applied the features identified in Barry v The London Borough of Southwark [2008] EWCA Civ 1440, including the need for an employment relationship and economic value to the employer.

   The evidence supported the finding that the work was neither effective nor genuine. There was no evidence that the husband had undertaken actual work. The contractual arrangement paid him whether or not work was done, and the purported employment gave no economic benefit to the employer.

2. The description of the business as a “business of convenience” was potentially unhelpful because it could be confused with a marriage of convenience. It did not, however, affect the result. No abuse of EU law had been alleged; the issue was solely whether the husband was a qualified person as a worker.

3. The Immigration Judge did not err by failing to consider jobseeker status. The point had not been argued before her, despite professional representation, and the evidence consisted only of a single answer that the husband was looking for a second job. The limited duty recognised in R v Secretary of State for the Home Department ex parte Robinson [1997] EWCA Civ 4001 in relation to an obvious Convention point in a protection case was not extended to this private entitlement issue.

4. In any event, jobseeker status under Article 14(4)(b) of the Citizen’s Directive (2004/38/EC) and regulation 6(4) required evidence of seeking employment and a genuine chance of engagement. The bare assertion did not meet that standard. Any omission was therefore immaterial, and the Tribunal dismissed the appeal.

• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appellant's appeal, holding that the Immigration Judge's determination disclosed no error on a point of law.
• Immigration Judge: Dismissed the appeal in a determination promulgated on 18 February 2010, finding that the claimed employment did not establish worker status.
• Secretary of State for the Home Department: Refused the residence-card application on 17 November 2009.