Secretary of State for Work and Pensions v MB (JSA)

A Union citizen seeking work must show a genuine chance of being engaged. The chance must rest on objective material and offer real prospects of obtaining genuine and effective work within a reasonable period. It is not enough that employment is merely possible or not hopeless.

The ordinary civil standard of proof applies. A period of six months or more of unsuccessful jobseeking is a material consideration, but it creates no automatic time limit and does not justify raising the substantive Antonissen test. The requirement in regulation 6(7) of the Immigration (European Economic Area) Regulations 2006 for compelling evidence can operate only through a proper evaluation of the evidence under that test.

Four linked appeals concerning income-based jobseeker’s allowance raised issues about the so-called genuine prospects of work test following amendments to the Immigration (European Economic Area) Regulations 2006.

The Secretary of State appealed First-tier Tribunal decisions in favour of MB, AB and AM. VA appealed a First-tier Tribunal decision dismissing his claim. MB and AB also relied respectively on alleged dependency on an employed daughter and on permanent-residence and pregnancy-related rights.

The central issue was whether each claimant had shown that he or she was continuing to seek employment and had a genuine chance of being engaged, and what effect the domestic requirement for compelling evidence had on that EU-law test.

1. The Secretary of State’s appeals in MB, AB and AM were allowed; VA’s appeal was allowed. The First-tier Tribunal decisions were set aside. MB’s appeal against the benefit decision was remade and dismissed. AB’s claim based on a genuine chance of being engaged was remade and dismissed, but the permanent-residence issue was stayed pending the Court of Appeal’s decision in SSWP v Gubeladze. AM’s and VA’s cases were remitted for rehearing.

2. Under Article 45 TFEU and Antonissen, a genuine chance of being engaged must be objectively founded and must offer real prospects of obtaining genuine and effective work within a reasonable period. A particular job offer is powerful but not indispensable evidence. Qualifications or training due to be completed after the decision date may be relevant because the question concerns a future chance, but their likely completion and effect on employment prospects require findings of fact.

3. The ordinary civil standard applies. Regulation 6(7) of the Immigration (European Economic Area) Regulations 2006 cannot elevate the substantive threshold above the EU-law test. It may require careful assessment of inherent probabilities, including the claimant’s prolonged lack of success. Six months of unsuccessful jobseeking is a material consideration which a tribunal must address, but it is neither an absolute limit nor a statutory step-change in the right of residence.

4. A claimant’s compliance with a jobseeker’s agreement may demonstrate continued jobseeking, but cannot alone establish a genuine chance of being engaged. Tribunals must not treat departmental guidance as law and, in their inquisitorial jurisdiction, may need to explore relevant evidence beyond the limited matters elicited at an interview.

5. MB had no genuine chance of being engaged. Her lengthy unsuccessful search, lack of qualifications and speculative evidence about possible future assistance outweighed the limited encouragement from advisers. Her daughter’s small, intermittent contributions to utilities did not establish the real factual dependency required for a right of residence as an ascending-line family member.

• Upper Tribunal (Administrative Appeals Chamber): The Secretary of State’s appeals in MB, AB and AM were allowed, and VA’s appeal was allowed. The relevant First-tier Tribunal decisions were set aside.

• First-tier Tribunal: MB’s appeal was allowed at Wolverhampton on 10 February 2015; AB’s appeal was allowed at Bolton on 17 April 2015; AM’s appeal was allowed at Northampton on 8 October 2015; and VA’s appeal was dismissed at Fox Court on 5 November 2015.