Case No. UKUT-00433-(IAC)

39. The grounds of appeal are, in part misconceived. It is not arguable that, as is averred at paragraph [1.a] that Judge Blum misdirected himself to the effect that an individual could be a jobseeker only if previously employed, nor is it arguable that he misconstrued regulation 6 (2) of the EEA Regulations. On the contrary, he directed himself properly at paragraph [23] that a jobseeker can be a qualified person, but that to do so an applicant must show that he is seeking employment and has a genuine chance of being engaged. That is entirely consistent with the established jurisprudence, in particular with Antonissen , and with the EEA Regulations. 40. Contrary to what is averred, Judge Blum did accept [23] that the appellant was seeking employment, and accepted the evidence of HMRC to that effect. What he did not accept was that she had genuine chance of being engaged in employment when she first entered, or throughout the period she was looking for employment. 41. The grounds of appeal are further misconceived in averring at [1.b] that Judge Blum erred in his approach to the evidence as to whether the appellant had worked prior to 2009. The grounds state at paragraph [2] that the appellant was a jobseeker, looking for employment and attending approved training from her arrival in this country until 24 th September 2009 and make no mention of the alleged prior employment. It is therefore inconsistent to argue that the appellant had in fact worked prior to that date. 42. Judge Blum records [22] that the appellant initially said she had been employed for six months in 2006 and for a month in 2008; that her evidence changed in cross-examination; that there was no documentary evidence relating to such employment; and, that her daughter said she had not worked prior to 2009. The records from HMRC adduced by the appellant and attached to the grounds of appeal disclose no record of tax or NI contributions paid until 2009/10. There is thus no positive documentary evidence from HMRC or any other source that the appellant had worked. 43. It was for the appellant to establish that she had been employed as claimed. The Judge noted discrepancies in the oral evidence, and the absence of documentary evidence of employment, and the absence of any record or tax or National Insurance paid at the relevant time. He explained adequately why, in the circumstances, he did not accept the claim that the appellant had worked prior to September 2009, and he was entitled to come to that conclusion. 44. Judge Blum was thus entitled to find that, prior to starting work on 24 September 2009, the appellant had spent a period of 3 years and 11 months without employment, and despite attending in this period the three courses referred to above, had not previously found employment. We consider that in the circumstances, he was entitled to conclude that she had not, on her arrival or during the whole of that period, shown that she had a genuine chance of employment. His conclusion that the appellant was not a qualified person was one open to him and his reasons for reaching that conclusion are adequately reasoned and based on sufficient evidence. 45. While the appellant’s presence may have been lawful for the first three months of her stay here, it ceased to be so thereafter as the evidence did not establish that she had a genuine chance of being employed from the outset, nor could it be argued that she fell to be treated as a “worker” for the purposes of Article 45 (ex Article 39) TFEU (even with the Antonissen concept of a worker-cum-jobseeker). 46. We do not accept the argument that an individual who has acquired the status of worker for the purposes of article 45 (ex Article 39) through being a jobseeker, retains that status if she ceases to be a jobseeker. In such a scenario, the purpose in interpreting article 45 widely – to give effect to the right to move to another member state to seek employment – is absent. Such an argument, if correct, would expand “worker” to cover any individual who had ever entered another Member State to seek work. That is plainly contradictory to the jurisprudence as set out above. 47. Further, while the appellant attended three courses, that does not assist her. Even assuming that they were vocational courses, regulation 6 (2) provides that the status of worker is only extended for those who have ceased working; the appellant had not worked. Article 7 (3) of the Citizenship Directive does not assist her either, as again, the status of worker for those attending training is predicated on that person having worked prior to commencing training. 48. For these reasons, we find that the decision of the First-tier Tribunal did not involve the making of an error of law capable of affecting the outcome. We therefore uphold its decision to dismiss the appeals.