Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the First-tier Tribunal under reference 160/09/04164, made on 21 January 2010 at Fox Court, did not involve the making of an error on a point of law.

Reasons for Decision

1.           This is an appeal by the Secretary of State against the decision of the First-tier Tribunal, brought with the permission of that tribunal. In view of the Secretary of State’s response to my directions on the appeal, it is not necessary to invite the claimant to respond, as I am able to give a decision his favour.

A.          History and background

2.           The claimant made a claim for a jobseeker's allowance on 9 March 2009, but this was refused on 21 May 2009 on the ground that (as someone seeking employment) he did not have a right to reside for the purposes of that allowance. The tribunal allowed his appeal and decided that he had a right to reside as a self-employed person. The claimant is Polish and came to the United Kingdom with his two children in 2006; his wife joined them in 2007. The tribunal found that he had been engaged in regular self-employment since October 2006. At the time of his claim, his self-employed work had just dried up and he was continuing to search for work in that capacity. The tribunal found that this was a possibility in the short-term. Accordingly, it found that he retained his status as a self-employed person.

B.          Analysis

3.           The claimant was looking for employment as a worker. I assume that, although it has not yet been investigated and decided. He was, therefore, a jobseeker for the purposes of EU law.

4.           The tribunal found that he remained self-employed at the date of his claim for a jobseeker's allowance: paragraph g on page 46. It is not, perhaps, expressed as clearly as it might be, but there is no room for doubt that the tribunal so found.

5.           I have already decided in Secretary of State for Work and Pensions v JS [2010] UKUT 240 (AAC) (CIS/0616/2010) that a claimant who remains in self-employment may nonetheless be entitled to a jobseeker's allowance:

‘5. I do not accept that a claimant who is for the moment doing no work is necessarily no longer self-employed. There will commonly be periods in a person’s self-employment when no work is done. Weekends and holiday periods are obvious examples. There may also be periods when there is no work to do. The concept of self-employment encompasses periods of both feast and famine. During the latter, the person may be engaged in a variety of tasks that are properly seen as part of continuing self-employment: administrative work, such as maintaining the accounts; in marketing to generate more work; or developing the business in new directions. Self-employment is not confined to periods of actual work. It includes natural periods of rest and the vicissitudes of business life. This does not mean that self-employment survives regardless of how little work arrives. It does mean that the issue can only be decided in the context of the facts at any particular time. The amount of work is one factor. Whether the claimant is taking any other steps in the course of self-employment is also relevant. The claimant’s motives and intentions must also be taken into account, although they will not necessarily be decisive.’  

6.           That decision has not been appealed. It is moreover, confirmed by regulation 85A(4)(b) of the Jobseeker's Allowance Regulations 2006 (SI No 207):

‘Special cases: supplemental - persons not in Great Britain

85A.—(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.

…

(4) A claimant is not a person from abroad if he is—

…

(b) a self-employed person for the purposes of that Directive;

There would be no point including self-employment in that provision if a claimant was not potentially entitled to a jobseeker's allowance while maintaining that status.

7.           There is in principle no reason why a person may not have a right to reside on a number of bases. A person who is a worker may also have a permanent right to reside. Each member of a couple who are both working has a right to reside both as a worker and as a family member of the other. And so on. For immigration purposes, this may be of no significance. However, it is potentially of significance for the purposes of benefit entitlement.

8.           There is, therefore, no reason why a claimant who remains in self-employment may not rely on that status for the purposes of a claim for a jobseeker's allowance while seeking employment as a worker.

9.           I have considered regulation 4(2) of the Accession (Immigration and Worker Registration) Regulations 2004 (SI No 1219) provides:

‘(2) A national of a relevant accession State shall not be entitled to reside in the United Kingdom for the purpose of seeking work by virtue of his status as a work seeker if he would be an accession State worker requiring registration if he began working in the United Kingdom.’

However, the claimant in this case was not claiming a jobseeker's allowance by virtue of that status and could rely on his right to reside as a self-employed person, not as a person seeking work.

C.          The effect of my decision

10.        The tribunal did not make an error of law when it decided that the claimant had a right to reside in the United Kingdom. The claimant is therefore entitled to a jobseeker's allowance, provided he satisfied the other conditions of entitlement. The Secretary of State will now investigate those conditions and decide his claim accordingly.