The Upper Tribunal has ruled that the term “worker” in the regulations concerning the rights of residence retained by non-EEA nationals if they divorce their EEA spouse includes jobseekers. This means that when someone who has given up work during marriage gets divorced from an EU citizen they will still be able to lawfully live in the UK while they look for a job.

In Gauswami (retained right of residence: jobseekers) India [2018] UKUT 275 (IAC), the Secretary of State for the Home Department argued that it was acceptable under EU law for the EEA Regulations to exclude jobseekers from retaining a right of residence after divorce. The Upper Tribunal rejected this attempt to utilise the distinction between ‘worker’ and ‘jobseeker’ in order to water down the meaning of Article 45 of the Treaty on the Functioning of the European Union, which guarantees free movement rights. Importantly, the Upper Tribunal held that this conclusion applied to both the 2006 and 2016 EEA Regulations and applications for residence made by family members upon the death of their EEA national relative.

Ms Gauswami married a Portuguese citizen and the couple moved to the United Kingdom in 2008. The marriage broke down and divorce proceedings were completed by 29 April 2014. Four days earlier, on 25 April 2014, Ms Gauswami became a jobseeker and started receiving Jobseeker’s Allowance. She got a job on 1 October 2014. The Secretary of State refused her application for a residence card because at the time of the divorce she was a jobseeker rather than an employee and therefore did not qualify as a “worker” under Regulation 10(6)(a) of the Immigration (European Economic Area) Regulations 2006. The First-tier Tribunal upheld that decision.

The Secretary of State’s decision was an attempt to take advantage of the two usages of the term “worker” in the EEA Regulations. The first and most fundamental definition of the term appears in Regulation 4:

“worker” means a worker within the meaning of Article 45 of the treaty on the Functioning of the European Union;

This definition is broad because it is based on the expansive interpretation of Article 45 TFEU in the case law of the Court of Justice of the European Union. The second definition is that contained in Regulation 6, which provides a list of characteristics by which an EEA national can count as a “qualified person”. This list distinguishes between “workers” and “jobseekers”.

The Upper Tribunal accepted that it was necessary for the EEA Regulations to operate using the second distinction on some issues because of differences in the rights provided by EU law to jobseekers and actual employees. However, it ruled that the use of the term “worker” in Regulation 10(6)(a) was a reference to Regulation 4 and therefore the definition of “worker” in Article 45 TFEU. Although this sounds like an arcane point of construction, the tribunal adopted this interpretation out of recognition of the fundamental principle that EU law prevents member states from using domestic immigration law to discourage free movement:

42. It is necessary to recall the purpose behind affording derived rights of residence to the family members of EU nationals. If those nationals were unable to bring their family members with them to another EU State, when travelling there for the purposes of work, then, in many cases at least, the national would be less likely to go to that State for that purpose. The principle of free movement of workers would, as a result, be weakened.

…

43. The retention of rights of residence for family members in the event of the death of the EU national, or in the event of divorce from that national, can be explained in part on the basis that a family member may be much less likely to go with the EU national to the third party State, and make a life there, if the family member knew that, following death or divorce from the EU national, he or she would be left without status in that country.

The Upper Tribunal reinforced this conclusion by noting that any other interpretation would indirectly discriminate against women:

A failure to interpret Article 45 in this way would produce arbitrary and unjustified results. There may be a number of reasons why a woman does not work, during the currency of her marriage. If, when faced with divorce, she decides to seek work, whether through economic necessity or otherwise, and happens to find a job before the decree absolute, she would, on any view, satisfy the requirements of regulation 10(6)(a), so as to retain her right of residence. If, however, she is still seeking employment when the decree absolute is pronounced, then according to the respondent, she cannot retain the right of residence. Not only is such a result perverse; we agree with Ms Asanovic that it would amount to indirect discrimination against women and thus be contrary to Articles 21 and 23 of the Charter of Fundamental Rights of the EU.

This outcome is a vindication of the principle of free movement. The Upper Tribunal has boldly performed its duty under section 2 of the European Communities Act 1972 to enforce rights granted by EU law when interpreting domestic law. The result is a reminder of the current constitutional supremacy of EU law and protects the rights of spouses who give up work during marriage.