MDB & Ors v Secretary of State for the Home Department

For Article 12 of Regulation (EEC) No 1612/68, merely looking for work does not amount to employment. Worker status requires a real link with the host-state labour market. The court may assess all the circumstances, including work history and motive, when deciding whether the person actually pursues or seriously wishes to pursue employment. Motive becomes irrelevant only after that threshold is met. A short period of part-time work is not automatically disqualifying, but it does not establish worker status without the required link. A qualifying child’s Article 12 residence and education rights are independent, and the carer may have a corresponding right of residence while those rights are being enjoyed.

The first appellant, an Argentinean national, and her two Italian-national children appealed from the Upper Tribunal’s dismissal of their appeals against the refusal of documents certifying permanent residence under Regulation 15 of the Immigration (European Economic Area) Regulations 2006. The Upper Tribunal also found that they had no extended right of residence under Regulation 14(2) and upheld the rejection of their Article 8 claim.

The appeal concerned the children’s rights under Article 12 of Regulation (EEC) No 1612/68, the relationship between those rights and permanent or extended residence, the effect of Zambrano, and Article 8 and the duty concerning children’s welfare under section 55 of the Borders, Citizenship and Immigration Act 2009. The central issue was whether the father’s job-seeking or brief period of part-time employment made him a worker for Article 12 purposes.

Lord Justice Hooper gave the judgment. Lord Justice Maurice Kay and Mr Justice Henderson agreed.

1. Article 12. A person looking for work cannot reasonably be described as employed for Article 12 purposes, even if that person may be treated as a worker for other purposes. The children therefore did not acquire Article 12 rights from the father’s job-seeking period.
2. The respondent had conceded that the worker test under the Directive 2004/38/EC applied equally to Article 12. On that assumption, employment after a child’s birth could trigger the Article 12 rights even if the parent later ceased work, economic activity or residence. A short period of work was not automatically disqualifying. The retention-of-status provisions in Article 7(3) of the Directive were not relevant once that concession was made.
3. The decisive question was whether the father had a real link with the labour market. The court applied the principles in Vatsouras and Koupatantze [2009] ECR I-4585 and Levin [1982] ECR 1035. Worker status required actual pursuit, or a serious wish to pursue, employed activity. The court could examine the person’s whole history and motive at that threshold stage. Motive was irrelevant only after the threshold had been established. The principles that short employment may qualify if genuine and effective, rather than marginal and ancillary, in Ninni-Orasche [2003] ECR I-1187 and Barry [2008] EWCA Civ 1440 did not compel a different result.
4. The Immigration Judge was entitled to find that the father had not actively sought work and that the 2007 employment appeared to have been undertaken to maintain his benefits. The Upper Tribunal was entitled to uphold the conclusion that he was not a worker under the Directive and therefore had not been employed for Article 12 purposes.
5. The children’s independent Article 12 rights and the carer’s related residence right did not arise on the facts. The appellants did not satisfy Regulations 14 or 15 of the Immigration (European Economic Area) Regulations 2006. In light of Zambrano C-34/09, the respondent accepted that the children could not be required to leave the European Union. The Article 8 and section 55 issue was remitted by agreement, and the appellants succeeded on that issue only.

• Court of Appeal (Civil Division) — In [2012] EWCA Civ 1015, the appeal succeeded on the Article 8 and children’s-welfare issue only. That issue was remitted to the Upper Tribunal. The Article 12 ground was dismissed.
• Upper Tribunal (Immigration and Asylum Chamber) — The decision promulgated on 18 May 2010 dismissed the appeals against the refusal of permanent residence documents, found no extended right of residence under Regulation 14(2) of the Immigration (European Economic Area) Regulations 2006, and upheld the rejection of the Article 8 claim.