Halimo Yusuf & Ors v The Secretary of State for the Home Department

A person who qualifies as a jobseeker must show both that they are seeking work and that they have a genuine chance of engagement. The permissible period for seeking work is not unlimited.

A person treated as a worker solely because they are seeking employment does not retain worker status after ceasing to be a jobseeker. The retention provisions in Directive 2004/38/EC and the Immigration (European Economic Area) Regulations 2006 protect persons who have ceased employment. They do not extend that protection to a person who has never been employed.

Attendance at approved training, without a remunerated contractual employment relationship, is not employment. It cannot establish worker status for a person who has not previously worked.

The appellants, a Dutch national and her children, appealed against the dismissal by the First-tier Tribunal of their appeals from the refusal of documents confirming permanent residence under the Immigration (European Economic Area) Regulations 2006.

They contended that the first appellant had been a qualified person from her arrival in 2005, initially as a jobseeker and later as a worker, and that the children were her dependants. She had not obtained employment until September 2009, although she had received jobseeking benefits and attended approved training courses.

The central issues were whether she had shown a genuine chance of employment while jobseeking, whether jobseeker-derived worker status could be retained, and whether the training constituted employment or student status.

1. The appeal was dismissed. The First-tier Tribunal had made no material error of law in finding that the first appellant had not been a qualified person throughout the period relied on.

2. Under Regulation 6(4), a jobseeker must establish that they are seeking employment and have a genuine chance of being engaged. The First-tier Tribunal accepted that the appellant sought work, but was entitled to find that her lengthy period without employment, the lack of supporting evidence and the surrounding evidence did not establish a genuine chance of employment. Her residence was therefore not shown to be lawful beyond the initial three months on the basis of jobseeking.

3. The wider meaning of worker under Article 45 TFEU protects a person moving to another Member State to seek work. It does not mean that a person who has acquired worker status only as a jobseeker retains that status after ceasing to seek work. Such a construction would remove any effective limit on the period of jobseeking and would conflict with the governing jurisprudence.

4. Regulation 6(2) and Article 7(3) of Directive 2004/38/EC retain worker status for persons who have ceased working or employment in the specified circumstances. They did not assist the appellant because she had not worked before undertaking the training.

5. Approved training did not create an employment relationship. There was no evidence of a contractual relationship for remuneration between the appellant and either the employment authorities or the college. Nor could she rely on student status, because there was no evidence of comprehensive sickness insurance.

6. The Upper Tribunal upheld the dismissal of the appeals. It noted, without deciding the point, that fresh permanent-residence applications could be made if later continuous employment had supplied the necessary qualifying period.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the First-tier Tribunal's dismissal.
• First-tier Tribunal: Judge Blum, in a determination promulgated on 28 October 2013, dismissed the appeals against the refusal of permanent-residence documentation under the Immigration (European Economic Area) Regulations 2006.