EEA Nationals are allowed to remain in the UK whilst they are exercising their right to freedom of movement under the EEA Regulations. In order to have a right to remain in the UK however, EEA nationals must fit within one of the ‘qualified’ categories, which are:
- Self-sufficient persons
Over the years, the EEA Regulations have been amended a number of times by the UK Government. These amendments appear to have reduced the rights that EEA jobseekers have to remain in the UK. This can be particularly important for EEA nationals who wish to apply for permanent residence. A permanent residence application requires a continuous period of 5 years ‘qualified status’ with no breaks, and EEA Nationals may need to show that they were present in the UK as a jobseeker to fill any gaps between work or studies.
Two recent decisions of the Court have helped to re-affirm the rights that EEA Nationals have to remain in the UK whilst job seeking.
In the case of KS v Secretary of State for Work and Pensions  UKUT 269 AAC the Tribunal looked at the requirement within the regulations that a person provide ‘compelling evidence’ where they had been job seeking for more than 91 days. This requirement was controversial, as the previous case of Antonissen (C-292/89) had found that a person should be permitted a period of at least 6 months to find work and be treated as a ‘worker’ during that period. In KS the Court explained that the requirement to provide ‘compelling’ evidence however was just a requirement that on the ‘balance of probabilities’ a person establish that they have a genuine chance of finding work. That is the normal standard of proof applied in civil courts and therefore the use of the word ‘compelling’ does not introduce an additional hurdle for EEA nationals to jump through.
In the case of MB and others v Secretary of State for Work and Pensions  UKUT 372 AAC the Court went on to consider the ‘compelling evidence’ test of genuinely searching for and finding work. The Courts confirmed that a person must have a chance of being engaged within a ‘reasonable period’ and that the test involved looking forward, including if the person was to obtain qualifications which would enable them to obtain work. There must be ‘real prospects’ of obtaining work and the burden is on the jobseeker to show this.
The Court’s decisions in these cases are re-assuring as the Courts have shown that they will continue to interpret EU law in a manner which continues to strongly protect free movement rights for EEA nationals and their family members.
For further information please contact Mark Lilley-Tams at email@example.com.