Sameena Zubair v The Secretary of State for the Home Department

Under the Immigration (European Economic Area) Regulations 2006, the categories of worker and self-employed person have distinct origins and requirements. They cannot be combined to create a status of self-employment seeking.

A person relying on permanent incapacity must have ceased activity as a worker or self-employed person because of that incapacity. Earlier self-employment cannot be aggregated with a later period of jobseeking where the person never became a worker. A person may become a jobseeker after entering the United Kingdom for another purpose, but jobseeking alone does not confer retained worker status.

In considering Article 8, a tribunal must give adequate consideration to the best interests of children whose formative years have been spent in the United Kingdom.

The appellant, a Pakistani national, sought a permanent residence card as the wife of a German national. Her husband had operated a United Kingdom business until November 2007. He then sought work until permanent incapacity from Parkinson’s disease was diagnosed in 2011. The Secretary of State refused the application because he had not completed the necessary period as a qualified person.

Judge Birkby dismissed the appellant’s appeal. The appellant challenged both the permanent-residence decision and the treatment of her family’s Article 8 position. The Upper Tribunal considered whether periods of self-employment and later jobseeking could be combined for the permanent-incapacity provisions, and whether the children’s interests had been adequately assessed.

1. The appeal concerning refusal of a permanent residence card was dismissed. Regulation 5(3) required Mr Zubair to have terminated his activity as a worker or self-employed person because of permanent incapacity, together with the relevant period of residence. His self-employment had ended after 16 months. His later 38 months of jobseeking could not count as residence as a worker because he never obtained employment.

2. The First-tier Tribunal had erred in treating regulation 6(4) as confined to a person who initially entered the United Kingdom to seek employment. A person who entered in another capacity could later become a genuine jobseeker. That correction did not assist the appellant: a genuine jobseeker who never found work did not fall within the retained-worker provisions of regulation 6(2)(b).

3. Mr Zubair could not retain self-employed status under regulation 6(3), nor qualify under regulation 5(3)(a). His illness did not prevent him continuing self-employment; the business had closed about 42 months before his illness. His incapacity ended his jobseeking activity, not activity as a worker or self-employed person.

4. The provisions for workers and self-employed persons derived from separate earlier Directives. The Tribunal rejected a purposive reading that would elide those categories. There was no concept of self-employment seeking, and a period of self-employment could not be combined with a period of seeking employment to meet the required residence period.

5. The Article 8 appeal was allowed to a limited extent. The First-tier Tribunal had materially erred by failing adequately to consider the children’s interests after substantial residence in the United Kingdom during their formative years. Its Article 8 decision was set aside. The matter remained outstanding for the Secretary of State to make a lawful decision concerning the family as a whole, with any consequent right of appeal.

• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeal against refusal of a permanent residence card. It allowed the Article 8 challenge to the limited extent of setting aside Judge Birkby’s Article 8 decision and leaving that issue outstanding for a lawful decision by the Secretary of State.

• First-tier Tribunal: Judge Birkby, on 12 October 2012, dismissed the appeal from the refusal of a permanent residence card and rejected the Article 8 claim.