Shitalben Nagargiri Gauswami v The Secretary of State for the Home Department

For retained rights of residence under regulation 10(6)(a), a non-EEA former spouse who is a genuine jobseeker at the date of divorce is to be treated as a worker. The domestic distinction between workers and jobseekers cannot restrict the broader Treaty meaning of worker in Article 45.

The person must satisfy the jobseeker requirements applied to an EEA national under the Immigration (European Economic Area) Regulations 2006. The retained right must also continue to be supported by the required status until permanent residence is acquired. A contrary construction would produce arbitrary results and undermine the protection afforded to family members on divorce.

The appellant, an Indian national, had married a Portuguese national who later became a British citizen. Their marriage ended by decree absolute on 29 April 2014. Five days earlier, the appellant had entered a jobseeker's agreement. She received jobseeker's allowance and obtained employment on 1 October 2014.

The Secretary of State refused a residence card confirming a retained right of residence. The First-tier Tribunal dismissed her appeal because she had not shown that, at dissolution, she would have been a worker, self-employed person, or self-sufficient person under regulation 6 of the Immigration (European Economic Area) Regulations 2006.

The central issue was whether a non-EEA former spouse who was a jobseeker when the decree absolute was made fell within the reference to a worker in regulation 10(6)(a).

1. Appeal allowed. The First-tier Tribunal made an error of law. Its decision was set aside and the Upper Tribunal remade the decision by allowing the appellant's appeal.

2. The material date at which a retained right becomes necessary is the date of the decree absolute, when the former spouse ceases to be a family member able to rely on the EU spouse's residence rights. Some qualifying conditions, including the EU spouse's status, may be assessed by reference to an earlier date. Regulation 10(6), however, imposes a present and continuing requirement which must be met at and after the decree absolute until permanent residence is acquired.

3. Article 45 of the Treaty includes genuine jobseekers within the concept of workers. Antonissen established that free movement for workers includes seeking employment. Saint Prix confirms that codification in the Directive cannot itself limit the Treaty concept of worker, which must be interpreted broadly.

4. Accordingly, regulation 4(1)(a) directs the Tribunal to the Article 45 meaning of worker. Although regulation 6 separately identifies jobseekers among qualified persons, that domestic distinction cannot exclude a jobseeker from regulation 10(6)(a). The 2006 Regulations, and likewise the 2016 Regulations, did not correctly or sufficiently clearly transpose the applicable EU law on that issue.

5. The appellant had been a jobseeker for five days at the decree absolute and had a genuine chance of engagement. She was therefore a jobseeker and, for regulation 10(6)(a), a worker. She retained a right of residence under Article 13 of Directive 2004/38/EC. Her later durable employment constituted compelling evidence for the period after 91 days. Domestic violence was immaterial because she met the separate duration condition in regulation 10(5)(d)(i).

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the First-tier Tribunal decision for error of law, and remade the decision in the appellant's favour.
• First-tier Tribunal: dismissed the appeal after a hearing on 27 September 2016.
• Permission and judicial review: permission to appeal was initially refused by both tribunals. Walker J granted permission to challenge the Upper Tribunal refusal by judicial review, the refusal was quashed, and the Upper Tribunal subsequently granted permission to appeal.