John Mundu Shabani v The Secretary of State for the Home Department

A person who voluntarily leaves employment to care for children does not retain EU worker status merely because of that caring role. A former worker who seeks work again may, however, be treated as a jobseeker under regulation 6(4) of the Immigration (European Economic Area) Regulations 2006, if they genuinely seek work and retain a genuine chance of obtaining it.

Reception-class education was held to be nursery education for regulation 15A(6)(a). Nevertheless, where the Secretary of State makes a lawful, non-discretionary concession granting a derivative right of residence to the primary carer of a former worker’s child in reception-class education, the appeal must be allowed on that basis.

John Mundu Shabani, a Congolese national, applied for a residence card as the spouse of a French national. The Secretary of State refused the application. The First-tier Tribunal dismissed his appeal, finding that his wife was neither a worker nor a jobseeker and rejecting his human-rights claim.

The Upper Tribunal set aside that decision for error of law and re-made it. The principal questions were whether the appellant’s wife retained worker status after leaving work to care for her children; whether she qualified as a jobseeker; and whether the appellant had a derivative right of residence as the primary carer of a child in reception-class education under regulation 15A of the Immigration (European Economic Area) Regulations 2006.

1. Appeal allowed outright. The appeal failed under regulation 6 because the appellant’s wife had ceased to be a worker and did not, at the hearing date, have a genuine chance of obtaining employment as a jobseeker. It succeeded because the Secretary of State’s non-discretionary concession gave the appellant a derivative right of residence under regulation 15A.

2. Applying Secretary of State for Work and Pensions v Dias [2009] EWCA Civ 807, the Tribunal held that a woman who voluntarily leaves the labour market after maternity leave in order to care for her children loses worker status. The pending reference in Saint Prix v Secretary of State for Work and Pensions [2012] UKSC 49 concerned pregnancy and childbirth, not the distinct position of leaving work to look after children.

3. The Secretary of State accepted that a former worker who becomes unemployed and seeks work again can potentially be a jobseeker under regulation 6(4). Applying the two-limb approach in Antonissen C-393/96 P(R), the appellant’s wife was genuinely seeking work, but her lengthy absence from the labour market, limited steps to improve employability and lack of success in obtaining work meant she no longer had a genuine chance of being employed.

4. Reception-class education for a child below compulsory school age fell within the exclusion for nursery education in regulation 15A(6)(a). The Tribunal considered that the direct effect of Article 12 of Regulation 1612/68 in this context was uncertain, but a reference was unnecessary. The Secretary of State had conceded that a primary carer in the appellant’s position fell within regulation 15A, a more generous domestic provision permitted by Article 37 of the Citizenship Directive.

5. The Article 8 claim fell away because the appellant had a derivative right of residence and the EEA decision could not lead to his removal.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal outright after setting aside and re-making the First-tier Tribunal’s decision.
• First-tier Tribunal: Dismissed the appeal in a determination sent on 4 June 2011. The Upper Tribunal held that it contained material errors of law.