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Neutral Citation Number:
Reported Number: R(IS)4/09
File Number: CIS 408 2006
Appellant:
Respondent:
Judge/Commissioner: Judge M. Rowland
Date Of Decision: 31/10/2007
Date Added: 23/11/2007
Main Category: European Union law
Main Subcategory: free movement
Secondary Category: Residence and presence conditions
Secondary Subcategory: right to reside
Notes: European Union law – free movement – EU citizen leaving work to care for her husband who is not a EEA national – whether they retain rights of residence under Article 18(1) of the EC Treaty Residence and presence conditions – right to reside – scope of Article 18(1) of the EC Treaty The claimant was a Cameroon national. While seeking asylum, he married a French national. She was working in the United Kingdom and therefore, as a “qualified person” as defined by regulation 5 of the Immigration (European Economic Area) Regulations 2000, had a right to reside in the United Kingdom. By his marriage he acquired a right of residence as a member of her family. He then became seriously ill and his wife gave up work to look after him. His claim for income support was rejected on the ground that he lost his right of residence when his wife gave up work. He appealed and a tribunal allowed his appeal on the ground that his wife had not lost her status of “worker” because she was involuntarily unemployed while looking after him and therefore remained a “qualified person”. The Secretary of State appealed to the Commissioner. Held, dismissing the appeal, that: 1. regulation 5(2)(a) of the 2000 Regulations, under which a person may remain a “qualified person” while temporarily incapable of work, contemplated the person who claimed to be a worker being ill rather than someone else being ill and therefore the claimant’s wife did not remain a qualified person by virtue of regulation 5(2)(a) while she was looking after the claimant (paragraph 11); 2. the term “involuntarily unemployed” in regulation 5(2)(b) of the 2000 Regulations must be regarded as focussing on the question whether the claimant is still in the labour market rather than on the circumstances in which he or she ceased to be employed and, in the present case, the claimant’s wife had withdrawn from the labour market and thus was not involuntarily unemployed (paragraphs 12 and 13); 3. Article 18(1) of the EC Treaty can confer a right of residence in addition to those conferred by directives made for the purpose of giving effect to rights arising in respect of freedom of movement (Baumbast v Secretary of State for the Home Department (case C-413/99) [2002] ECR I-7091 followed) but, where it is clear that the extent of a right of residence conferred by a directive has deliberately been drawn with a view to ensuring that a class of persons does not have a right of residence, a national court is not entitled to undermine the directive by finding that that class of person has a right of residence by virtue of Article 18(1), because Article 18(1) is made subject to directives by the very terms of the Treaty and such a finding would amount to a finding that the directive was ultra vires (paragraphs 23 to 27); 4. however, a person may be found to have a right of residence by virtue of Article 18(1) of the EC Treaty where the principle of proportionality requires that a lacuna in directives must be filled, proportionality must be judged by reference to, inter alia, Directive 2004/38/EC in any case arising after the adoption of that directive and there may, in principle, be circumstances in which the principle of proportionality requires that a right of residence be recognised even though the claimant is not self-sufficient (paragraph 37); 5. where a worker exercising rights under Article 39 of the Treaty in the United Kingdom is obliged to cease work and cannot be available for alternative work due to a need to care for his or her spouse who is a not a citizen of the Union but who is temporarily seriously disabled, they both retain rights of residence in the United Kingdom in the circumstances that arose in this case (paragraph 54).
Decision(s) to Download: R(IS) 4-09 bv.doc R(IS) 4-09 bv.doc