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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> MDB & Ors v Secretary of State for the Home Department [2012] EWCA Civ 1015 (24 July 2012) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2012/1015.html Cite as: [2012] EWCA Civ 1015, [2012] 3 CMLR 43

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
SIJ STOREY & SIJ S.M. WARD
IA/18640/2008, IA18638/2008 & IA/18637/2008

		Royal Courts of Justice Strand. London. WC2A 2LL
		24/07/2012

Lord Justice Hooper:

Introduction

1. The appellants appeal the decision of SIJs Storey and Ward sitting in the Upper Tribunal (Immigration and Asylum Chamber)^[1] dismissing the appeals of the appellants against the refusal of the respondent in October 2008 to grant them a document certifying their permanent residence status under Regulation 15 of the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations"). The Tribunal also decided that the appellants did not have an extended right of residence under Regulation 14(2) of the 2006 Regulations. The Tribunal said that, if the appellants had had an extended right of residence, then the appeals would have been allowed. The Tribunal also concluded that the Immigration Judge had rightly rejected an Article 8 claim.
2. This appeal concerns, firstly, Article 12 of Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community ("Regulation 1612/68")^[2], which makes special provision for the rights of children of workers exercising the right of free movement.
3. Secondly, the appeal concerns the relationship between the rights given under Article 12 and the rights to acquire permanent resident status or extended resident status under respectively Regulations 15 and 14 of the 2006 Regulations, as interpreted in such a way as to comply with Directive 2004/38^[3], the Citizenship Directive. In this court the respondent withdrew an important concession which she had made before the Immigration Judge and the Upper Tribunal. Put simply, she had conceded that the right to reside in order to be able to enjoy the benefits of Article 12 carried with it the rights to permanent residence and extended residence granted in the 2006 Regulations.
4. Thirdly, the appeal concerns the impact, if any, of the decision of the CJEU in Zambrano C-34/09 decided on 8 March 2011. Although Zambrano had not been decided by the time the Upper Tribunal reached its decision, there is no dispute that we should consider what effect, if any, Zambrano has on the appellants' cases.
5. Fourthly, the appeal is concerned with the application of Article 8, particularly in the light of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 and with section 55 of the Borders, Citizenship and Immigration Act 2009 which imposes duties upon the respondent in relation to the welfare of children within the UK.
6. I can deal with the fourth issue very briefly. The parties have agreed that this issue should be remitted and I would remit it.

The first issue: Article 12

7. Article 12 provides:

The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State's general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory.

Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions. (Emphasis added)

8. The fifth recital to Regulation 1612/68 explains the purpose behind Article 12:

Whereas the right of freedom of movement, in order that it may be exercised, by objective standards, in freedom and dignity, requires ... that obstacles to the mobility of workers shall be eliminated, in particular as regards the worker's right to be joined by his family and the conditions for the integration of that family into the host country.

9. The first appellant, A1, is the mother of the second and third appellants, A2 and A3. A1 is of Argentinean nationality and has been living in this country since September 2001.
10. The second appellant, A2, was born in this country in November 2001, has lived nowhere else and entered the public educational system in December 2006. The third appellant, A3, was born in this country in December 2004, has lived nowhere else and entered the public educational system in February 2008. Both are Italian nationals. The fact that they have Italian nationality is not relevant for the purposes of Article 12, given that Article 12 does not require the children to hold any particular nationality.
11. It is not in dispute that, if the conditions of Article 12 are satisfied, A2 and A3 acquire what has been described as "an independent legal position". See Teixeira [2010] ECR I-1107, per the Advocate General at paragraph 39 and Ibrahim [2010] ECR I-1065 where the right is described as "a right of residence independent of" any right which the parents may enjoy.
12. It is not in dispute that if A2 and A3 are entitled to the benefits of Article 12 they are entitled to reside here to enjoy those benefits. See Baumbast [2002] ECR I-7091 paragraph 63 and Teixeira paragraphs 44-45 per the Advocate General where an explanation is given of the reasons why the children acquire a free-standing right of residence.
13. It is not in dispute that if A2 and A3 are entitled to the benefits of Article 12 and continue to reside here to enjoy those benefits, then A1 has a right to reside here as their carer, at least for the time being, (Baumbast paragraphs 71-73) without being required to satisfy the conditions laid down in the Citizenship Directive and even if she is a burden on the social assistance system of the host State (Teixeira paragraphs 61 and 70). It is to be noted that the IJ found that "the appellants and Mr LDB are reliant solely on public funds" and that "the entire family is an unreasonable burden on public funds in the United Kingdom".
14. The entitlement of A2 and A3 to the rights given by Article 12 is dependent upon their father's position. Mr LDB is an Italian national who came to the UK in 1999 and apart from a period of less than a year in 1999-2000 he has lived here ever since. He married A1 in 2001 and in 2006 she obtained court orders forbidding him from, amongst other things, molesting her (later replaced with undertakings). It is agreed that the fact that the marriage has, in effect, come to an end is not relevant to the Article 12 issue which we have to resolve (Baumbast paragraph 63).
15. It is not disputed (on the facts of this case) that if, after A2 was born here, Mr LDB was "employed" within the meaning of Article 12, then A2 is entitled to the benefits of Article 12, even though Mr LDB was thereafter no longer employed here, or otherwise economically active or even living here. The same applies to A3. See Teixeira paragraph 45; paragraph 63.2 of the respondent's skeleton argument and Brown v Secretary of State for Scotland Case 197/86, paragraph 30.
16. The Upper Tribunal concluded, as had the Immigration Judge, that Mr LDB had never been "employed" for the purposes of Article 12 since his arrival here and thus the children could not enjoy the benefits of Article 12. The appellants challenge that conclusion.
17. The only period of employment (in the usual sense of that word) upon which the appellants rely is a period of part-time employment as a maintenance cleaner between June and August 2007. Mr LDB was employed for 10 weeks, working 8 hours a week and earned just over £1000. Thus his total hours of employment (in the usual sense of that word) were 80 hours. To put it another way, he has only been employed for 80 hours between his arrival in this country in 1999 and the decision of the Upper Tribunal in 2010 to refuse the appellants' appeal against the refusal of the respondent to grant them a document certifying their permanent residence status under the 2006 Regulations.
18. If the appellants are right that the 80 hours/10 weeks satisfy Article 12, then the appellants are entitled under Article 12 to all the educational rights therein referred to. Given that the educational rights conferred by Article 12 are to be provided to the appellants upon the same conditions as nationals, it follows that they would be, amongst other things, entitled to free primary and secondary education and to assisted tertiary education upon the same terms as UK nationals. Mr Beal submits that it would be very surprising if one period of 80 hours work over 10 weeks in the eighth year of what was, at the time of the Upper Tribunal hearing, an eleven year residence entitles Mr LDB's children to the rights granted by Article 12.
19. Mr Beal explained to us that although Mr LDB whilst unemployed may have no Treaty (or domestic) rights to reside here, nonetheless he could not be expelled except in accordance with Chapter VI of the Citizenship Directive.
20. In addition to the 80 hours/10 weeks in 2007, the appellants rely upon a period in 2002-2003 when Mr LDB was looking for work. It is the submission of Ms Stratford QC that whilst job-seeking Mr LDB was "employed" for the purposes of Article 12. If she is right that would make A2 entitled to the Article 12 rights when he entered the educational system in 2006 but not (she concedes) A3 who was not born at that time. As to this period the Upper Tribunal said:

"26. So far as concerns September 2002/November 2003, it is not in dispute that during this period he was issued with a residence permit (for two periods of six months each) on the basis that he was a job-seeker. That made him a qualified person within the meaning of the relevant legal provision in force at the time - reg 5(a) of the Immigration (European Economic Area) 2000 Regulations (SI 2000/2326). Since reg 3(1)(a) of the same Regulations defined "worker" as having the same meaning as in Article 39 of the EC Treaty, [Mr LDB] was entitled during this period to be considered as a worker (the same definition is given in reg 4(1)(a) of the 2006 EEA Regulations), notwithstanding that he was only looking for work."

21. The Upper Tribunal rejected the appellants' submissions both as to the 2002-2003 period and period of 80 hours/10 weeks in 2007. As to the former, the Upper Tribunal said that Mr LDB, as a jobseeker, was not "employed" for the purposes of Article 12.
22. I shall deal with this period briefly. Although Ms Stratford submitted that the conclusion was wrong, it seems to me quite clear from the wording of Article 12 that a child does not obtain an Article 12 right simply because his or her parent is a national of another Member State who has been looking for work in the host State. A person looking for work cannot reasonably be described as "employed", even if he may for certain purposes to be treated as a worker.
23. I turn to the 80 hours/10 weeks period in 2007.
24. The Immigration Judge and the Upper Tribunal approached this period by asking whether the period qualified Mr LDB as a "worker" for the purposes of the law relating to the free movement of workers. They reached the conclusion that it did not, a conclusion which Mr Beal supports and Ms Stratford challenges.
25. Mr Beal concedes, in paragraph 59 of his skeleton argument, that if a person is or was a "worker" within the meaning of the Citizenship Directive, then he is or has been employed for the purposes of Article 12. He submits:

"... the definition of worker ought to be applied consistently in both measures. It would be odd and undesirable if a different definition of worker were to be applied to each measure."

26. I, for my part, am not sure that the respondent should have made this concession given that Article 12 imposes such heavy obligations upon the host State and given that even a very short period as a "worker" for the purposes of the Directive will, having regard to this concession, trigger Article 12. It is in my view arguable that the test in Article 12 could be a higher test than the test as applied by the ECJ when deciding the meaning of the word "worker" for the purposes of the Citizenship Directive. If Mr LDB was a "worker" for the purposes of the Citizenship Directive for the 80 hours/10 weeks that he worked, it would be surprising if such a short period entitled the children to the rights under Article 12, given that the right of a national of one Member State to reside in another Member State is subject to restrictions designed to prevent such persons becoming a burden on the social assistance system of that Member State.
27. Having expressed my concerns about the concession, I shall assume it to have been rightly made.
28. As I have already said (paragraph 15 above), it is not disputed that if after A2 and A3 were bom here, Mr LDB was "employed" within the meaning of Article 12, then A2 and A3 are entitled to the benefits of Article 12, even though Mr LDB was thereafter no longer employed here, or otherwise economically active or even living here. It follows therefore that the question which has to be asked, on the facts of this case, is, in respect of each child: "After the birth of the child was Mr LDB a "worker" within the meaning of the Citizenship Directive?" If the answer to this question is: "Yes", then the child is entitled to the benefits of Article 12 even though Mr LDB was only a "worker" for a very short time.
29. The Treaty on the Functioning of the European Union provides that every person holding the nationality of a Member State shall be a citizen of the Union. The Treaty confers on every citizen of the Union "the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect" (Article 21(1)). The current relevant measure is the Citizenship Directive, the provisions of which are reflected in domestic law by the 2006 Regulations.
30. Article 7(1) of the Directive provides that all Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they are (inter alios) "workers or self-employed persons in the host Member State".
31. Article 7(3) makes provision for the retention of the status of worker in certain defined circumstances. It provides:

For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:

(a) he/she is temporarily unable to work as the result of an illness or accident;

(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;

(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a jobseeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;

(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.

32. Mr Beal submits that Article 7(3) is "highly pertinent" (paragraph 60 of his skeleton argument). I am not sure that he is right in the context of the first issue. Article 7(3) is relevant to a decision whether a Union citizen from one member State has a right of residence in another member State under the Citizenship Directive, but I do not see its relevance in relation to Article 12 once the concession has been made that the test for "employment" in Article 12 is the same test as the test for a "worker" in the Citizenship Directive. This is because Article 12 refers to a person who is or has been employed.
33. I turn now to the approach by the Upper Tribunal to the 2007 period. The Upper Tribunal said:

"28. So far as concerns June-August 2007, however (by which time [Mr LDB] fell under the 2006 EEA Regulations), we consider it was open to the IJ to find that his employment for that period, a period of 10 weeks during which his hours of work were only eight hours a week, was insufficient for him to qualify as a worker for the purposes of EU free movement law. Of course the term "worker" in Union law is to be given a very wide interpretation and a person might be a worker even if he works only part-time and for a limited period. In Levin 53/81 [1982] ECR 1035 a chambermaid who was employed for only 30 hours a week and earned less than the minimum wage was held to be a worker. However, the tests applied in Levin and subsequent case law include that the services performed must be genuine and effective and more than marginal and ancillary. In addition, as noted by Arden LJ in Barry v London Borough of Southwark [2008] EWCA Civ 1440 and by the Tribunal in IP & Others (A2 national-worker authorisation-exemptions) Bulgaria [2009] UKAIT 42 (both cases citing Nini-Orasche Case C-413/01), in deciding whether a person is a worker it is also necessary to consider all the circumstances relating to the nature of the activities in question and the employment relationship at issue, including the duration of the employment and prior employment history. The more recent judgment of the ECJ in Vatsouras Case C-2/08 and Koupatantze Case 3/08, 4 June 2009 [2009[ EUECJ C-22/08 have confirmed these principles. As noted by Advocate General Colomber in his Opinion in Vatsouras at para 63: "Anyone wishing to join the workforce has better credentials if they have carried out responsibilities with a wage earning aspect of some kind in the past.

29. Bearing in mind that [Mr LDB's] period of employment in 2007 was only for 10 weeks, that his hours were only 8 hours a week and that previously he had been unemployed since his arrival in the UK in 2002 [this should read 1999], we do not consider that the IJ erred in evaluating the facts relating to his 2007 employment as she did."

34. In paragraph 28 the Tribunal states that, in accordance with the authorities, "the services performed must be genuine and effective and more than marginal and ancillary" and that the duration of the employment and prior employment history are relevant. In paragraph 29 the Tribunal is relying on the fact that the period of employment was only for 10 weeks and then only for 8 hours a week, that Mr LDB had been unemployed since his arrival in the United Kingdom and that the IJ did not err in her evaluation of the facts relating to the 2007 employment.
35. In the light of this conclusion it is necessary to examine in more detail the factual conclusions of the IJ about the 2007 period of employment and Mr LDB's history of seeking, or not seeking, work. The IJ heard evidence from A1 and Mr LDB, as well as one other witness. Although Mr LDB claimed in evidence to have worked and studied here, the IJ reached unchallenged findings that Mr LDB was not a witness of truth upon whose evidence any reliance could be placed.
36. Under the heading "My Findings", the IJ concluded that Mr LDB had failed to adduce a shred of evidence that he had worked in the United Kingdom other than for the period in 2007. As to that period the IJ said that this work "seems to have been undertaken to maintain his claim for benefits" (para. 21). The IJ went on to say:

"23. ... [Mr LDB] claimed he was looking for work but his claim stands in contrast to the evidence of the first appellant that he spends the days with her having lunch with her, doing the school runs. I find the appellants have not established on the burden of proof required of them that [Mr LDB] is actively seeking work despite the fact that he appears to have persuaded the benefits agency that he is. His conduct strongly suggests otherwise. As part of the conditions of payment of JSA he is required to attend skills training courses but there is no evidence this is ongoing training lasting six months as he tried to claim before me, and the letter at page 21 of the appellants' bundle refers to one training day on 17th November 2008. It is hard to see how [Mr LDB] could attend any prolonged courses when he spends so much time doing nothing at the appellants' address.

24. No evidence has been adduced that [Mr LDB] has been involuntarily unemployed and no evidence has been put before the respondent or before me to show that he was employed for one year or more before becoming unemployed. There is no credible evidence before the respondent or before me that he has been unemployed for less than 6 months or that he is actively seeking work and that he has a genuine chance of being employed. I find the appellants have not established that [Mr LDB] can be considered a jobseeker as defined under Regulation 6(4). No evidence has been adduced that he is actively seeking employment in the form of copies of letters of application, application forms, invitations to interview and outcome letters. The appellants have adduced no evidence that [Mr LDB] has a genuine chance of being engaged in employment or that he has embarked upon vocational training.

25. I find as a matter of fact that the appellants have not shown on the burden of proof required of them that [Mr LDB] has been exercising Treaty rights in the United Kingdom....

…

27. The appellants ... have not shown on the burden of proof required of them that [Mr LDB] has been exercising Treaty rights in the United Kingdom."

37. It is right to say that the IJ's conclusions in 2009 that Mr LDB was not actively seeking work or seeking vocational training are expressed in the present tense, but it seems clear to me that the IJ was finding that Mr LDB's attitude to work as expressed in this finding had not changed over many years and such a finding would be consistent with the finding in paragraph 21 that the work in 2007 "seems to have been undertaken to maintain his claim for benefits".
38. I turn to the arguments upon which Ms Stratford relies to support her submissions that the 2007 10 weeks/80 hours period of work qualified as "employment" for the purposes of Article 12.
39. In her skeleton argument Ms Stratford submits^[4]:

"21. The only basis on which the UT appears to have held that the 2007 period of employment was not work was that it was part-time, moderately remunerated, and of relatively short duration. As to these factors:

a. It is well established that part-time work may constitute work within the meaning of EU law: Levin [1982] ECR 1035 §§15-16 referred to in Barry [2009] ICR 437 at §18;

b. There is no minimum remuneration required: Levin §15- 16 again referred to in Barry at §18. The relatively limited amount of remuneration received by [Mr LDB] cannot "have any consequence in regard to whether or not the person is a 'worker' for the purposes of [EU] law", nor the fact that he may have supplemented that remuneration through financial assistance from public funds: Joined Cases C-22/08 and C- 23/08 Vatsouras and Koupatantze [2009] ECR I-4585, §§27- 28;

c. As to the 10 week duration of the work, in Ninni-Orasche [2003] ECR I-1187 the ECJ held that a period of 2 ½ months (i.e. 10 weeks) was sufficient (see §§18 and 32). The ECJ held in terms that the fact that employment is of short duration cannot, in itself, exclude that employment from qualifying as work within the meaning of EU law: Ninni- Orasche §25. In Barn a period of work of only two weeks was sufficient to qualify as a worker (see §22). In Vatsouras and Koupatantze the national court had held that Mr Koupatantze had engaged in professional activity lasting "barely more than one month" (§25), and yet the ECJ did not rule out that the professional activity might be real and genuine so as to grant 'worker' status (§30).

d. Nor is it relevant to consider the period of employment in relation to the total duration of residence by the person concerned in the host Member State: Ninni-Orasche §30.

e. Duration is therefore a factor, but it is not a determinative one: Barry §20. For example, in Case C-357/89 Raulin v Minister van Onderwijs en Wetenshappen [1992] ECR I- 1027 the total amount of work performed was 60 hours over a period of 16 days under an 'on call contract' as a waitress (§3). Even there, the ECJ was not prepared to exclude a finding that the work was sufficient to confer worker status (§§13-15). In the present case, by contrast, [Mr LDB] worked for 80 hours over a 10 week period."

40. She continued:

"22. Turning to the requirement that the work must be "effective and genuine" rather than "marginal and ancillary", there is nothing to suggest that [Mr LDB's] employment was not pursuant to an ordinary contract for services. Just as in Barry, the work was of economic value to CCM, who would have had to employ someone else to fulfil [Mr LDB's] duties if he had not worked for them (Barry §23 per Arden LJ). The work was not ancillary to anything else such as a tenancy (see the example given by Arden LJ in Barry at §20). Nor was the work marginal. As in Barry, it was a role for which [Mr LDB's] employers CCM were prepared to pay a not insignificant sum as remuneration (£1055 in total [72/§22], compared with the £789.86 net paid to Mr Barry {Barry §§9 & 23)."

41. As to the reliance by the Upper Tribunal on Mr LDB's history of unemployment, Ms Stratford submits that "factors relating to the conduct of the person concerned before and after the period of employment are not relevant in establishing the status of worker: Ninni-Orasche §28."
42. As to the "suggestion in the Determination of IJ EB Grant that the work may have been undertaken to maintain Mr LDB's claim for social security", Ms Stratford submits that "the motives which may have prompted a worker to seek employment in a Member State are "of no account and must not be taken into consideration." She relies particularly on Levin at paragraph 22. Ms Stratford submitted that, in the light of this principle, the decision whether work is "genuine" must be resolved objectively and not subjectively.
43. The effect of Ms Stratford's arguments is that, once you eliminate each of the factors which the authorities show should not be taken into account, there is no other conclusion than that the 2007 period of 80 hours/10 weeks was "employment" for the purposes of Article 12.
44. The decision which most supports the appellants' submissions is Ninni-Orasche. The first question posed for the Court related to whether Mrs Ninni-Orasche had acquired the status of a worker for the purposes of Community Law by reason of a period of short-term employment taken up by her. Mrs Ninni-Orasche was an Italian national who had been married to an Austrian since 18 January 1993. She had been resident in Austria since 25 November 1993 and held an Austrian residence permit valid until 10 March 1999. That permit conferred on her the right to take up and pursue activities as an employed or a self-employed person in the territory of Austria under the same conditions as a national worker. From 6 July to 25 September 1995, Mrs Ninni- Orasche was employed in Austria for a fixed term as a waitress and cashier in an Austrian catering company. Aside from her duties as cashier, she was also responsible for the ordering and storage of goods offered for sale. On 16 October 1995, she successfully sat, in Italy, an examination completing a course of secondary school studies in the form of evening classes which required her attendance only at the examinations. She thereby obtained a diploma which entitled her to enrol at an Austrian university. Between October 1995 and March 1996, Mrs Ninni-Orasche sought employment in Austria corresponding to her education and professional experience by sending unsolicited applications to hotels and a bank without success. In March 1996, she therefore began studying romance languages and literature, specialising in Italian and French, at the University of Klagenfurt in Austria. If she was a worker, then she was entitled to financial assistance to help her with her university education.
45. The Austrian and other Governments submitted that the national court should be entitled to assess all the circumstances (applying objective criteria) in order to establish whether Mrs Ninni-Orasche was genuinely seeking to exercise her right to freedom of movement with a view to working or, alternatively, attempting to create a situation in which it appeared that she was a worker with the sole aim of obtaining financial assistance.
46. The Court said:

"23. First of all, it is settled case-law that the concept of worker", within the meaning of Article 48 of the Treaty, has a specific Community meaning and must not be interpreted narrowly (see, to that effect, inter alia, Case 66/85 Lawrie-Blum 119861 ECR 2121, paragraph 16, Case 197/86 Brown [1988] ECR 3205, paragraph 21, Case C-3/90 Bernini [1992] ECR I- 1071, paragraph 14, and Case C-337/97 Meeusen [1999] ECR I-3289, paragraph 13).

24. Moreover, that concept must be defined in accordance with objective criteria characterising the employment relationship in view of the rights and duties of the persons concerned. The essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person in return for which he receives remuneration (see Lawrie-Blum, cited above, paragraph 17, Case 344/87 Bettray [1989] ECR 1621, paragraph 12, and Meeusen, cited above, paragraph 13).

25. In the light of that case-law, it must be held that the fact that employment is of short duration cannot, in itself, exclude that employment from the scope of Article 48 of the Treaty.

26. In order to be treated as a worker, a person must nevertheless pursue an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and accessory (see, in particular, Levin, cited above, paragraph 17, and Meeusen, paragraph 13).

27.When establishing whether that condition is satisfied, the national court must base its examination on objective criteria and assess as a whole all the circumstances of the case relating to the nature of both the activities concerned and the employment relationship at issue.

28. It should be stated that, with respect to the assessment whether employment is capable of conferring the status of worker within the meaning of Article 48 of the Treaty, factors relating to the conduct of the person concerned before and after the period of employment are not relevant in establishing the status of worker within the meaning of that article. Such factors are not in any way related to the objective criteria referred to in the case-law cited in paragraphs 23 and 24 of this judgment.

29. In particular, the three factors referred to by the national court, namely the fact that the person concerned took up employment as a waitress only several years after her entry into the host Member State, that, shortly after the end of her short term of employment, she obtained a diploma entitling her to enrol at university in that State and that, after that employment had come to an end, she attempted to find a new job, are not linked either to the possibility that the activity pursued by the appellant in the main proceedings was ancillary to the nature of that activity of the employment relationship.

30. For the same reasons, nor can the Court accept the argument put forward by the Danish Government that, in order to assess whether activities pursued as an employed person are effective and genuine, it is necessary to take account of the short term of the employment in relation to the total duration of residence by the person concerned in the host Member State, which, in the main proceedings, was two and a half years.

31. Finally, as regards the argument that the national court is under an obligation to examine, on the basis of the circumstances of the case, whether the appellant in the main proceedings has sought abusively to create a situation enabling her to claim the status of a worker within the meaning of Article 48 of the Treaty with the aim of acquiring advantages linked to that status, it is sufficient to state that any abusive use of the rights granted by the Community legal order under the provisions relating to freedom of movement for workers presupposes that the person concerned falls within the scope ratione personae of that Treaty because he satisfies the conditions for classification as a worker within the meaning of that article. It follows that the issue of abuse of rights can have no bearing on the answer to the first question.

32. Having regard to the preceding considerations, the answer to the first question must be that the fact that a national of a Member State has worked for a temporary period of two and a half months in the territory of another Member State, of which he is not a national, can confer on him the status of a worker within the meaning of Article 48 of the Treaty provided that the activity performed as an employed person is not purely marginal and ancillary.

It is for the national court to carry out the examinations of fact necessary in order to determine whether that is so in the case before it. Circumstances preceding and subsequent to the period of employment, such as the fact that the person concerned:

- took up the job only some years after his entry into the host Member State,

shortly after the end of his short, fixed-term employment relationship, became eligible for entry to university in the host Member State by virtue of having completed his schooling in his country of origin, or

attempted to find a new job in the period between the end of the short, fixed-term employment relationship and the time when he took up his studies,

are not relevant in this connection." (Emphasis added)

47. The Court did accept that, when considering for the purposes of the second question whether Mrs Ninni-Orasche was voluntarily unemployed, the following findings might be relevant: as soon as her contract of employment had expired, Mrs Ninni- Orasche had obtained a diploma entitling her to enrol at a university in the host Member State; the search for a new job had begun immediately after the employment relationship had come to an end; and findings about the nature and level of the new employment sought. As to these matters the Court said, in answering the second question:

"46. However, those factors might prove to be relevant when examining the question whether, in the present case, the appellant in the main proceedings took up short-term employment with the sole aim of benefiting from the system of student assistance in the host Member State."

48. The Court appears to have been saying that if Mrs Ninni-Orasche took up short-term employment with the sole aim of benefiting from the system of student assistance in the host Member State, then, whilst the short-term employment may well qualify her as a worker, she might be voluntarily unemployed if she took up short-term employment with the sole aim of benefiting from the system of student assistance. If she was voluntarily unemployed she might not be eligible for the student assistance to which she would otherwise be entitled.
49. Ms Stratford submits, in reliance on the words which I have italicised, that in deciding whether the 80 hours/10 weeks of work were sufficient to qualify Mr LDB as a worker, the Tribunal must apply an objective test and must ignore his conduct before and after this period of work. Therefore, she submits that in answering the question: "Did the appellants show that Mr LDB was exercising his rights under the Directive to work here?", the fact that he seems to have undertaken the work to maintain his claim for benefits is irrelevant. Ms Stratford also submits that the finding that he was not seeking work being based on his conduct over many years both before and after the short period of work, is likewise irrelevant. She submits that, applying an objective test, the work which Mr LDB did was sufficient to qualify him as a worker and that is the end of the matter.
50. I turn to Barry, upon which Ms Stratford also strongly relies. The facts and the issue in that case, as formulated by Arden LJ, were:

"1. This appeal concerns one of the eligibility conditions for social housing. A person is not in general ineligible under this condition if he is a worker from another EEA State. But if he has ceased to work, certain restrictions apply. In particular, he must not have been unemployed for more than six months. In this context, Community law governs the concept of "worker". By a decision dated 4 July 2007, the review officer of the respondent, the London Borough of Southwark ("Southwark"), pursuant to s 202 of the Housing Act 1996 ("the 1996 Act"), determined that the appellant, Mr Barry, a citizen of the Netherlands and thus a citizen of the European Union, was not a "worker" for the purpose of Community law for a period of two weeks in July 2006 in which he worked as a steward at the All England Tennis Championships at Wimbledon. This was the only employment that he had undertaken in the relevant six month period. The question to be decided on this appeal is whether that decision discloses an error of law."

51. The Court held that the appellant was a "worker" during this period. In the words of Lloyd LJ:

"39. However, ECJ decisions (in particular Ninni-Orasche Case C-413/01, at paragraph 19) show that a short period of employment, even one which was never going to be other than short, can qualify so long as the activity pursued is genuine and effective, rather than marginal and ancillary, and is of economic value to the employer."

52. Lloyd LJ then set out a passage from Lawrie-Blum v Land Baden-Württemberg Case 66/85, [1986] ECR 2121, at paragraphs 16-18 and continued:

"40. Applying the general criteria indicated in that passage, during the two weeks in question ("a certain period of time") Mr Barry was a person who "performs services for and under the direction of another person in return for which he receives remuneration". He provided "a service of some economic value" to his employer, since otherwise he would not have received remuneration of £830 (gross) for his work during the two weeks.

41. It is true that this period of work was short, though I dare say that Mr Barry may have worked long hours during the fortnight in question. I see no reason why, if the question arises, a short period of employment should not count for these purposes. It was real work, and genuine employment. I see nothing about it which could render it fairly describable as marginal. Though it did not last for long, there is nothing in the facts which suggests that it could fairly be regarded as an activity "on such a small scale as to be regarded as purely marginal and ancillary"".

53. Arden LJ reached the same conclusion. see paragraph 26.
54. Mr Beal points out that there was a history of earlier work before the six month period. It is right to say that both Arden and Lloyd LJ accepted that there may be cases where the previous employment record was relevant to decide whether a person was a "worker". But both also made it clear that, in their view (with which Thomas LJ agreed) the period of work at Wimbledon itself qualified the appellant as a "worker".
55. The decisions in Ninni Orasche and Barry support the submissions made by Ms Stratford that during Mr LDB's short period of employment he was a "worker" and the IJ and the Tribunal could not properly find otherwise. She submits that the work which he did cannot properly be described as marginal and ancillary: from an objective standpoint it was genuine and it is impermissible to look at the period before and after a period of work when deciding whether a person is a "worker".
56. I turn to the respondent's arguments.
57. Mr Beal does not quarrel, in large measure, with the principles which Ms Stratford extracts from the cases.
58. In his skeleton argument Mr Beal wrote, in part:

"68. The FTT and the UT were right to find that [Mr. LDB] had never exercised any rights of free movement as a current or former migrant worker. That expression (and indeed the expression "worker") should generally be given its ordinary meaning. See Case 53/82 Levin v Staatssecretaris van Justitie [1982] ECR 1035, ECJ at [9]."

59. Mr Beal then sets out paragraph 17 of Levin, which I shall set out shortly.
60. In paragraph 74 Mr Beal makes the point:

"... the fact that the ECJ has made clear that the decision should be taken in light of all the circumstances of the case is indicative of the Court's view that the question is highly fact-specific and thus that the particular facts of individual cases should not pre-determine how other cases are decided."

Conclusion on the first issue: Article 12

61. In my view the key to the first issue is to be found in the principle that there must be a real link between the person claiming to be a "worker" and the labour market. In Vatsouras and Koupatantze [2009] ECR I-4585 the issue was whether two Greek nationals who had gone to Germany and worked for a short period were entitled to social assistance. The Court said:

"38. It is, however, legitimate for a Member State to grant such an allowance [social assistance] only after it has been possible to establish a real link between the job-seeker and the labour market of that State (Case C-24/98 D'Hoop [2002] ECR I-6191, paragraph 38, and Ioannidis, paragraph 30)

39. The existence of such a link can be determined, in particular, by establishing that the person concerned has, for a reasonable period, in fact genuinely sought work in the Member State in question (Collins, paragraph 70)."

62. In Levin [1982] ECR 1035 the Court said:

"17. ... It follows both from the statement of the principle of freedom of movement for workers and from the place occupied by the rules relating to that principle in the system of the Treaty as a whole that those rules guarantee only the free movement of persons who pursue or are desirous of pursuing an economic activity."

63. In paragraph 21, the Court referred to:

"the requirement, which is inherent in the very principle of freedom of movement for workers, that the advantages which Community law confers in the name of that freedom may be relied upon only by persons who actually pursue or seriously wish to pursue activities as employed persons."

64. In paragraph 22, relied upon by Ms Stratford, the Court continued:

"Once this condition is satisfied, the motives which may have prompted the worker to seek employment in the Member State concerned are of no account and must not be taken into consideration."

65. In my view this paragraph does not help Ms Stratford. Motive is only irrelevant once it is shown that the person claiming to be a "worker" is actually pursuing or seriously wishes to pursue activities as an employed person. In deciding whether a person is actually pursuing or seriously wishes to pursue activities as an employed person, a court is entitled to examine his or her motive.
66. The findings of fact reached by the IJ show that Mr LDB was not exercising his right to work given to him by EU law. The IJ rightly asked this question: "Did the appellants show that Mr LDB was exercising his rights under the Directive to work here?" She answered that question in the negative and the Tribunal held that she was entitled to reach that conclusion. Looking at his whole history, the IJ was entitled to find that, whilst residing here for some 11 years, Mr LDB was not doing that which the Directive entitled him to do, namely work. At no time had he actively sought work and nor was he self-sufficient. The work that he had done in 2007 "seems to have been undertaken to maintain his claim for benefits".
67. In these circumstances the Upper Tribunal and IJ Grant were entitled to conclude that Mr LDB was not a "worker" for the purposes of the Citizenship Directive. It follows that he has not been "employed" for the purposes of Article 12.
68. For these reasons I would dismiss the appeal in so far as it is based on Article 12.

Second issue- right to acquire permanent resident status or extended resident status

69. Given my conclusion on the first issue, this issue falls away.

Third issue- Zambrano

70. When in October 2008 the respondent refused to grant the appellants a document certifying their permanent residence status under Regulation 15 of the 2006 Regulations, the respondent informed A1: "if your appeal is unsuccessful and you do not leave the United Kingdom voluntarily you will be removed to Argentina". The respondent informed A2 and A3: "As EEA nationals you are not required to leave the United Kingdom as a result of this decision".
71. IJ Grant said in paragraph 32:

"All the evidence before me indicates that the first appellant is a good mother and a competent mother and there are no concerns for the children's welfare in her care. If the choice is to leave the children with their father, a man who has not hesitated to utilise domestic violence against their mother (and whom the family courts have prohibited from removing the children from their mother's care), or with the mother who cares for them very well then clearly the children should remain with their mother and return to Argentina with her and not to Italy with their father (because they cannot go alone). The three appellants can and should return to Argentina together and their family life can continue there." (Emphasis added)

72. The IJ was here saying that A2 and A3 (as well as A1l) should "return to Argentina", notwithstanding that the respondent was not requiring A2 and A3 to leave the United Kingdom. Likewise in paragraph 36 IJ Grant said that it would not be a breach of the rights of A2 and A3 (as well as of A1) to "require them to leave the United Kingdom". In paragraph 38 IJ Grant said that A2 and A3 (as well as A1) "have not established on the burden of proof required of them that there will be any breach of their Article 8 rights if they are removed from the United Kingdom to Argentina". This conclusion was upheld by the Upper Tribunal, albeit that the Tribunal did say in paragraph 40 that there was nothing in the evidence to suggest that it would be unreasonable to expect the family to live in Italy.
73. As I have already said, these appeals are, in any event, being remitted to the Tribunal in the light of the fourth issue (see above paragraph 5).
74. The respondent agrees that A2 and A3 cannot be required to leave the EU in the light of Zambrano, which, as I have said, was decided after the Upper Tribunal reached their decision.
75. Given that the respondent was not in her decision letter requiring A2 and A3 to leave the United Kingdom, I find it very difficult to see how what appears to have been a decision to remove A1 to Argentina could be lawful.
76. However the respondent accepts in paragraph 85.1 of her skeleton argument that she has made no decision to remove A1 from the United Kingdom. If it is necessary to do so, the order of the Court can reflect what is said in paragraph 85.1.
77. Finally it is clear that A1, A2 and A3 have no right to an extended right of residence or permanent right of residence under respectively regulations 14 and 15 of the 2006 Regulations. Regulations 14 and 15 set out the requirements for such rights and the appellants do not satisfy those requirements.

Conclusion

78. The appellants succeed in the appeal on the fourth issue only. I would accordingly remit the fourth issue to the Tribunal.

Mr Justice Henderson

79. I agree.

Lord Justice Maurice Kay

80. I also agree.

Note 1   The decision was promulgated on 18 May 2010.    [Back]

Note 2    OJ L 257, 19.10.68, p.2, as amended. Regulation 1612/68 was repealed with effect from 16 June 2011, and replaced by Regulation (EU) No. 492/2011 (OJ L141, 27.5.11, p.1). However, Regulation 492/2011 is merely a codification of the amendments made to Regulation 1612/68, and does not alter any of the provisions relevant to this appeal.    [Back]

Note 3    Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation No 1612/68 and repealing Directives 64/22T/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, OJ 2005 L 197, p. 34, and OJ 2007 L 204, p. 28.    [Back]

Note 4   I have added in the references to the cases where necessary.    [Back]