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‘Worker’ includes ‘job seeker’ for retained rights of residence purposes

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Staying in UK after divorce is something that many non-EU citizens are concerned about. It’s a particular worry if something happens to their Employment to threaten their retained rights of residence. A recent case welcomed by many EEA Immigration solicitors has clarified the position for non-EU citizens who have been through a divorce and become ‘job seekers’. While this situation of temporary unEmployment could have brought retained rights of residence to an end, our London immigration solicitors look at the case of Gauswami (retained right of residence: jobseekers) India in which the Upper Tribunal held that job seekers could not be excluded from the retained rights of residence given to ‘workers’, following divorce from an EU citizen.

Retained rights of residence

Retained rights of residence are an important benefit granted to non-EU citizens (and those from outside the EEA), who come to the UK with an EU citizen exercising his or her freedom of movement. Solicitors familiar with divorce and Immigration law, and the interplay between them, will be well-versed in the relevant part of the Immigration (European Economic Area) Regulations 2016 (‘the EEA Regulations’). Regulation 10 of the EEA Regulations provides that individuals in this situation retain their right to live and work in the UK in certain circumstances, such as death of the EU citizen, or if the marriage ends in divorce.

The EEA Regulations qualify the right in respect of those whose marriage or civil partnership to the EU citizen/EEA citizen has terminated. In order to benefit from retained rights of residence, the non-EU citizen must be “(a) …a worker, a self-employed person or a self-sufficient person under regulation 6; or (b) is the family member of a person who falls within paragraph (a).” The Secretary of State for the Home Department recently tried to argue that the term ‘worker’ should be given a restrictive interpretation based on Regulation 6 of the EEA Regulations. This defines ‘qualified person’ and distinguishes between workers and job seekers. The Upper Tribunal preferred the argument that the more expansive definition provided in Regulation 4 of the EEA Regulations should apply. Regulation 4 ascribes the same meaning to ‘worker’ as that contained in Article 45 of the Treaty on the Functioning of the European Union and includes those looking for work.

The facts in Gauswami

In a situation that many of the best Immigration solicitors will recognise, the facts of the case were not straightforward. In outline, Ms Gauswami is an Indian citizen who married a Portuguese citizen in India in July 2008. Her husband, Mr V, had previously travelled to the UK, exercising his freedom of movement rights, in 1998, and became a British citizen by naturalisation in 2006. After the wedding, later in 2008, Ms Gauswami came to the UK on a family permit, and in 2009 was granted a residence card, valid until October 2014, as the spouse of an EEA national.

There were various problems in the marriage and while she was in India in 2013, her husband applied for a divorce – apparently without her knowledge. The decree absolute was issued on 29th May 2014. Just 5 days earlier, she had entered into a job seekers’ agreement with the Department for Work and Pensions and started to receive Job Seekers Allowance in May 2014. She obtained Employment in October the same year, but when she applied for a residence permit, based on her retained rights of residence as the ex-spouse of an EEA national, the application was refused.

The Upper Tribunal upholds the appeal and the retained rights of residence of job seekers

The Upper Tribunal noted the case law of the Court of Justice of the European Union prefers a wide interpretation of the term ‘worker’ – in particular in the case of Antonissen, the predecessor provision of Article 45 was defined as including those looking for work as well as those working. In the case of St Prix the CJEU upheld the retained rights of residence of a woman who had to stop working because of her pregnancy. The First Tier Tribunal rejected arguments that Ms Gauswami could rely on these cases to establish her own retained rights of residence and found that she had to be either a worker, self-employed, or self-sufficient under the provisions of Regulation 6 to benefit.

The Upper Tribunal did not agree. The key issue was that the categories of ‘qualified person’ in Regulation 6, distinguishing worker and job seeker as different categories, were introduced to reflect the conditions that case law and, subsequently, the 2004 Directive have placed upon job-seeking EU nationals. However, it is necessary to look more widely, to Article 45 and to the purpose behind these retained rights of residence, to establish whether job seekers should be allowed to benefit.

Rights of residence are essentially in place to give full effect to freedom of movement, allowing EU citizens to travel with family members who might not otherwise be able to do so. There were a number of reasons which persuaded the Upper Tribunal that I the circumstances, ‘worker’ should include ‘job seeker’ and Ms Gauswami should benefit from retained rights of residence.

As a final finding, the Upper Tribunal held that to exclude job seekers from retained rights of residence would amount to indirect discrimination against women.

Anyone concerned about their Immigration status following the break up of a marriage or civil partnership should take advice from the best Immigration solicitors they can find. OTS Solicitors are Legal 500 Immigration solicitors with a solid reputation in both Immigration and divorce law. Book an appointment with one of our specialist divorce and Immigration solicitors today by calling 0203 959 9123.

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