Order
of the Upper Tribunal
(Administrative Appeals Chamber)
The following questions are referred to the European Court
of Justice for a preliminary ruling:
In circumstances where a
claimant:
(a) is a citizen of the Czech Republic;
(b) came to the United Kingdom before her country acceded to the EU;
(c) remained here following
accession;
(d) thereafter
established herself in self-employment under Article 49 TFEU (ex Article 43
TEC);
(e) is
no longer in self-employment; and
(f) is
the primary carer of a child who entered general education while she was
established in self-employment,
does the claimant have a right
to reside in the United Kingdom on the basis that:
(a) Regulation
1612/68 applies, together with the reasoning of the European Court of Justice
in Baumbast and R v Secretary of State for the Home Department (Case
C-413/99) [2002] ECR I-7091, London Borough of Harrow v Ibrahim (Case
C-310/08) and Teixeira v London Borough of Lambeth (Case C-480/08);
(b) there
is a general principle of EU law that equates the position of workers and the self-employed;
(c) it
would impede or deter the freedom of establishment if the claimant did not have
a right to reside; or
(d) some
other basis?
Reasons
for Reference
A.
Why the questions are referred
1.
The questions referred arise in a number of cases. This case is
appropriate for a reference on account of the quality of the claimant’s
representation and arguments. The Secretary of State, of course, always has the
benefit of experienced representatives, but the assistance available to
claimants varies.
2.
I have attempted in the questions referred, in these reasons and in the
Common Appendix to be consistent in using the word ‘worker’ in its narrow sense
and not as a general term covering those engaged in economic activity regardless
of whether on an employed or self-employed basis.
B.
The appeal
3.
This appeal was brought by the Secretary of State, with the permission
of the First-tier Tribunal, against the decision of that tribunal in the
claimant’s favour.
4.
I held an oral hearing on 16 September 2010. The Secretary of State was
represented by Ms Deok Joo Rhee of counsel and the claimant was represented by Mr
Graham Tegg of the Child Poverty Action Group. I am grateful to them both their
written and oral arguments. The appeal was heard at the same time as the appeal
in Czop (CIS/1465/2009).
5.
Following the hearing, I decided to refer questions to the European
Court of Justice. I allowed the parties a chance to comment on my draft
questions and reasons. Ms Rhee has done so and I am grateful to her for her
submissions. I have essentially accepted her suggestions. Despite being allowed
additional time, Mr Tegg has not done so, perhaps because of the other demands
on his time in connection with legislation currently before Parliament. It is
fair to record that he had mentioned asking the European Court of Justice to
consider whether the claimant had a right to reside on the basis of her
immigration documentation. I understand that the Court has the power to
consider any basis on which the claimant might have a right to reside even if
it is not raised expressly in the questions referred.
C.
The claimant’s circumstances
6.
The claimant is a citizen of the Czech Republic, which acceded to the EU
on 1 May 2004. Since that date, the claimant has also been a citizen of the
European Union. She arrived in the United Kingdom on 3 March 2001 and was
self-employed as a cleaner from 16 November 2007 to 8 September 2008. She has
three children, born in 2003, 2004 and 2007. Her eldest child entered general
education a week before she ceased to be self-employed.
D.
The claim for income support
7.
The claimant made a claim for income support on 15 September 2008, but this
was refused on 6 October 2008 on the ground that she was a person from abroad. She
can only succeed if she was not a person from abroad at that time. That is the
effect of section 12(8)(b) of the Social Security Act 1998:
‘In deciding
an appeal under this section, an appeal tribunal-
…
(b) shall
not take into account any circumstances not obtaining at the time when the
decision appealed against was made.’
8.
As a person from abroad, the claimant’s applicable amount was nil.
Entitlement to income support is calculated by reference to this amount. The
effect of a nil amount is that the claimant is not entitled to income support. This
is the effect of the following legislation.
9.
Income support was established by the Social Security Act 1986. The
relevant provisions have been consolidated by the Social Security Contributions
and Benefits Act 1992.
10.
Section 124(1) of the 1992 Act provides:
‘(1) A person in Great Britain is entitled to income support if-
…
(b) he has no income or his
income does not exceed the applicable amount.’
11.
Section 135 provides:
‘(1) The applicable amount, in
relation to any income-related benefit, shall be such amount or the aggregate
of such amounts as may be prescribed in relation to that benefit.
(2) The power to prescribe applicable amounts
conferred by subsection (1) above includes power to prescribe nil as an
applicable amount.’
12.
The Income Support (General) Regulations 1987 are made, in part, under
that authority. Paragraph 17 of Schedule 7 to those Regulations prescribes that
the applicable amount for a ‘person from abroad’ is nil.
13.
‘Person from abroad’ is defined by regulation 21AA. This has been the
governing provision since 30 April 2006. At the time of the claim in this case,
it read:
‘Special
cases: supplemental – persons from abroad
21AA.—(1) “Person from
abroad” means, subject to the following provisions of this regulation, a claimant
who is not habitually resident in the United Kingdom, the Channel Islands, the
Isle of Man or the Republic of Ireland.
(2) No claimant shall be
treated as habitually resident in the United Kingdom, the Channel Islands, the
Isle of Man or the Republic of Ireland unless he has a right to reside in (as
the case may be) the United Kingdom, the Channel Islands, the Isle of Man or
the Republic of Ireland other than a right to reside which falls within
paragraph (3).
(3) A right to reside falls
within this paragraph if it is one which exists by virtue of, or in accordance
with, one or more of the following—
(a) regulation
13 of the Immigration (European Economic Area) Regulations 2006;
(b) regulation
14 of those Regulations, but only in a case where the right exists under that
regulation because the claimant is—
(i) a
jobseeker for the purpose of the definition of "qualified person" in
regulation 6(1) of those Regulations, or
(ii) a
family member (within the meaning of regulation 7 of those Regulations) of such
a jobseeker;
(c) Article 6 of Council Directive No.
2004/38/EC; or
(d) Article
39 of the Treaty establishing the European Community (in a case where the
claimant is a person seeking work in the United Kingdom, the Channel Islands,
the Isle of Man or the Republic of Ireland).
(4) A claimant is not a
person from abroad if he is—
(a) a worker for the
purposes of Council Directive No. 2004/38/EC;
(b) a self-employed person
for the purposes of that Directive;
(c) a
person who retains a status referred to in sub-paragraph (a) or (b) pursuant to
Article 7(3) of that Directive;
(d) a
person who is a family member of a person referred to in sub-paragraph (a), (b)
or (c) within the meaning of Article 2 of that Directive;
(e) a
person who has a right to reside permanently in the United Kingdom by virtue of
Article 17 of that Directive;
(f) a
person who is treated as a worker for the purpose of the definition of
"qualified person" in regulation 6(1) of the Immigration (European
Economic Area) Regulations 2006 pursuant to—
(i) regulation
5 of the Accession (Immigration and Worker Registration) Regulations 2004
(application of the 2006 Regulations in relation to a national of the Czech
Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia or the Slovak
Republic who is an "accession State worker requiring registration"),
or
(ii) regulation
6 of the Accession (Immigration and Worker Authorisation) Regulations 2006
(right of residence of a Bulgarian or Romanian who is an "accession State
national subject to worker authorisation");
(g) a
refugee within the definition in Article 1 of the Convention relating to the
Status of Refugees done at Geneva on 28th July 1951, as extended by Article
1(2) of the Protocol relating to the Status of Refugees done at New York on
31st January 1967;
(h) a
person who has exceptional leave to enter or remain in the United Kingdom granted outside the rules made under section 3(2) of the Immigration Act 1971;
(hh) a
person who has humanitarian protection granted under those rules;
(i) a
person who is not a person subject to immigration control within the meaning of
section 115(9) of the Immigration and Asylum Act and who is in the United
Kingdom as a result of his deportation, expulsion or other removal by
compulsion of law from another country to the United Kingdom; or
(j) a
person in Great Britain who left the territory of Montserrat after 1st November
1995 because of the effect on that territory of a volcanic eruption.’
14.
The operation of these provisions is this:
·
Claimants who come within regulation 21AA(4) are not persons from
abroad. They will all have the right to reside and do not have to be habitually
resident.
·
In order to be entitled to income support, anyone else must be
habitually resident (regulation 21AA(1)). If they are not, they are persons
from abroad and not entitled to income support.
·
In order to be habitually resident, they must have a right to
reside (regulation 21AA(2)). If they do not, they are persons from abroad and
not entitled to income support.
·
But persons who come within regulation 21AA(3) cannot have a
right to reside and cannot, therefore, be habitually resident, As a result,
they are persons from abroad and not entitled to income support.
E.
The decision of the First-tier Tribunal
15.
The tribunal allowed the claimant’s appeal and decided that she had a
right to reside, and was habitually resident, in the United Kingdom. She was
not, therefore, a person from abroad and was, subject to satisfying the other
conditions, entitled to income support. The judge made this decision on two grounds.
16.
First, the claimant was the primary carer of her eldest child who had
entered education while she remained self-employed. In support, the tribunal
cited Baumbast and R v Secretary of State for the Home Department (Case
C-413/99) [2002] ECR I-7091.
17.
Second, the claimant’s partner had been a worker throughout the time
that she had known him. However, its findings were not sufficient to show that
he had been a worker at the time when their child entered education.
F.
The appeal to the Upper Tribunal
18.
The Secretary of State applied for permission to appeal, essentially on
the ground that Baumbast did not apply following the adoption of Directive
2004/38/EC. That ground can no longer be maintained following the decisions of
the European Court of Justice in London Borough of Harrow v Ibrahim
(Case C-310/08) and Teixeira v London Borough of Lambeth (Case
C-480/08).
G.
The four arguments
19.
There are four arguments that support a right to reside for the
claimant. They are common to both cases referred and are based on: (i)
Regulation 1612/68 and the Baumbast line of authorities; (ii) the
caselaw in which the European Court of Justice has equated workers and the
self-employed; (iii) the caselaw of the European Court of Justice that
prohibits action that impedes or deters the exercise of a fundamental right;
and (iv) Directive 2004/38.
H.
The first argument
20.
This argument relies on Regulation 1612/68 and the Baumbast lines
of authorities. If the right to reside sought by the claimants had been based
on residence as a worker, the issue would have arisen under Baumbast and R v
Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091, London Borough of Harrow v Ibrahim (Case C-310/08) and Teixeira
v London Borough of Lambeth (Case C-480/08). Those cases involved the
coincidence of a parent of a child being a worker at a time when the child was
in education. The child acquired a right to education under Article 12 of
Regulation 1612/68:
‘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.’
The child’s primary carer then acquired a right to reside in
order to render effective the child’s right to education. The carer may or may
not be the parent whose work gave rise to the child’s right.
21.
In Czop, Ms King’s argument at the hearing differed in some
respects from her earlier written argument. She argued that Regulation 1612/68
applied in this case. She referred to the parts of the preamble and Articles
that did not use the term worker. She bolstered this by referring to the third
paragraph of the preamble to Directive 2004/38, arguing that this changed the
context in which Regulation 1612/68 had to be interpreted. The focus, she
argued, was now on the market as a whole with the same fundamental rights for
all those who participated in the market. Ms King also referred to the precise
wording of Article 12. First, she pointed out that on its wording it applies to
children of a person who is ‘or has been’ a worker. She argued that it would
therefore apply to a child whose entered education after the parent ceased to
be a worker. Second, she pointed out that on its wording it depends on the
parent being ‘employed’. She argued that this was wider than worker and
included the self-employed. Referring to Article 8 of the European Convention
of Human Rights, Ms King argued that the respect of family life applied equally
to workers and the self-employed.
22.
Ms Rhee argued that Article 12 did not apply to the self-employed. She
described Ms King’s argument as inconsistent with the scheme of Regulation
1612/68 and the wording of Article 12.
23.
I prefer Ms Rhee’s argument. The language used in the Regulation varies:
sometimes it says ‘worker’, sometimes it says ‘employed’. Despite the
variation, the overall language and purpose is limited to workers. However, as
other issues arise that justify a reference to the European Court of Justice, I
have included the scope of Regulation 1612/68 and the Baumbast line of
authorities in the questions posed.
I.
The second argument
24.
This argument relies on the caselaw of the European Court of Justice
that equates the position of workers and the self-employed. In Punakova,
Mr Tegg cited a number of authorities in which the European Court of Justice
has treated workers and the self-employed as having equivalent rights and
status.
25.
Having considered the authorities cited by Mr Tegg, I am unsure whether
there is a principle of general application that workers and the self-employed
have equivalent status for all purposes. If there is, it would seem to
undermine the separate Treaty bases and legislative treatment. Also, if there
is not a principle of general application, I am not sure in what circumstances
the cases cited apply.
J.
The third argument
26.
This argument relies on the caselaw of the European Court of Justice
that recognises freedom of movement and establishment as fundamental concepts
of EU law. These rights must be fully effective. Accordingly, Member States are
not permitted to take action that would impede the exercise of those rights or
deter anyone from exercising them. For example, the European Court of Justice
found that there had been deterrence in R v Immigration Appeal Tribunal, ex
parte Secretary of State for the Home Department (Case C-370/90). The
husband, who was Indian, had married a British national in the United Kingdom. They had moved to work in Germany and then returned to the United Kingdom to open a business. Their return to the United Kingdom was in exercise of
their domestic law rights, not EC rights. The issue arose whether the husband
had a right to reside in the United Kingdom, which he would have under EU law
as the spouse of a national of a Member State. The Court decided (paragraph 23)
that the right of freedom of movement had to be fully effective and that a
national of State A would be deterred from exercising the right of free
movement to leave that State to work in State B if, on return to the home
State, a spouse were not accorded the same right to reside as would be granted
under EC law. Accordingly, the United Kingdom was required to give the husband
that right.
27.
I note that this analysis was not used in the Baumbast line of
authorities. That may merely reflect the questions posed for the European Court
of Justice. I also note that there was no inquiry whether there was actual
deterrence in the Immigration Appeal Tribunal case; on the facts, it
seems that there was not. Nor was the wife exercising an EU right when she
returned to the United Kingdom; she did so under domestic law. And in Zambrano
v Office national de l’emploi (ONEm) (Case C-34/09), the Grand Chamber
decided that it was to be assumed that there would be an impediment to the
effective right of EU citizenship for children whose parent might have to leave
their national State (paragraph 44). However, there must be something more than
a merely theoretical impediment or deterrence. In Moser v Land Baden-Württemberg
(Case 180/83) [1984] ECR 2539, Mr Moser was a German who was refused access to
post-graduate training in order to become a teacher, because he was a member of
the Communist Party. He argued that this was contrary to European law. On a
reference, the European Court of Justice decided that EC law did not apply,
because (paragraph 15) the issue that arose was ‘wholly internal to a Member
State, in other words there is no factor connecting them to any of the
situations envisaged by Community law.’ Mr Moser argued that there was an
impediment to the exercise of his right of freedom of movement, as his
inability to qualify as a teacher would prevent him from being able to move to
take up work in another Member State. The Court rejected this as a ‘purely
hypothetical prospect’ and insufficient (paragraph 18).
28.
Does this reasoning apply to these cases? Does it matter that, in Czop,
the claimant’s partner was already in self-employment at the time of accession
and did not exercise an EU right in order to establish himself here? Does it
matter that in Czop the claimant’s son came to the United Kingdom only after she ceased to be established in self-employment? Does it matter that the
claimant established herself in self-employment before accession (albeit that
she remained established in self-employment after accession)? Does it matter
that, in Punakova, the claimant established herself in self-employment
only after accession and did not move here in order to do so? Is it necessary
for there to be some exercise of an EU right in order to trigger the right to
reside? Would there be sufficient connection with an EU right to do any of the
following after accession: (i) to remain here (Czop and Punakova);
(ii) to remain here in reliance on an EU right in order to be free from the ‘no
recourse to public funds’ condition (Czop); (iii) to set up in
self-employment (Punakova); (iv) or to bring a child here (Czop)?
K.
The fourth argument
29.
This argument relies on Directive 2004/38, Article 12(3) provides:
‘The Union citizen’s departure
from the host Member State or his/her death shall not entail loss of the right
of residence of his/her children or of the parent who has actual custody of the
children, irrespective of nationality, if the children reside in the host
Member State and are enrolled at an educational establishment, for the purpose
of studying there, until the completion of their studies.’
30.
This is a codification of the Baumbast decision, but it is wider.
It extends Baumbast, as it is not limited to workers. On my reading, the
right may derive from any Union citizen who has the right of residence and that
right may arise from work or self-employment. Nor is it tied to the scope of
Regulation 1612/68.
31.
It is clear from Ibrahim and Teixeira that the Baumbast
caselaw survives the coming into force of the Directive. It is not replaced or limited
by the Directive. However, this produces the apparently anomalous result that
someone who is the primary carer for a child of a self-employed person has the
limited benefit of the Directive, but not the broader benefit of the caselaw. I
wonder if the focus on Regulation 1612/68 in the caselaw merely reflects the
way that the questions were posed to the Court. Is the Directive an indication
that there is a broader principle that is not limited to workers?
L.
An additional argument
32.
In addition, Ms Rhee argued that a claimant from the Czech Republic, or any other A8 country, could only access full EU rights after working in
registered employment for 12 months. I reject that argument elsewhere.
|
Signed on original
on 14 March 2011
|
Edward Jacobs
Upper Tribunal Judge
|
