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 173/08/01052, made on 30 January 2009 at Fox Court, did not involve the making of an error on a point of law.

Reasons for Decision

1.          This case was the subject of a reference to the Court of Justice of the European Union (Case C-147/11). In accordance with the normal practice of that Court, Ms Czop was named in the Court’s answers to the questions referred. It would, therefore, be pointless to follow the normal practice of this Chamber in social security cases and anonymise this decision.

2.          It is convenient to take the statement of the facts of this case from the decision of the Court of Justice of the European Union:

12 Ms Czop’s partner, Mr Krzyzowski (who is not the father of Ms Czop’s eldest child), is also a Polish national and was self-employed between 2002 and 2007. In 2008, he was forced to leave the United Kingdom. In 2010, he joined Ms Czop and has since then been living with her and her children in the United Kingdom.

13 Ms Czop made a claim for income support on 29 May 2008, which was refused on 20 June 2008. As she returned to self-employment in September 2008, that claim concerns only the period from May to September 2008.

14 The Secretary of State for Work and Pensions refused the claim on the ground that Ms Czop was a ‘person from abroad’ because she did not have a residence permit for the purposes of Regulation 21AA(4) of the Income Support (General) Regulations 1987.

15 The First-tier Tribunal allowed Ms Czop’s appeal, holding that she had a right to reside for the purposes of that provision and should not therefore be deemed to be a ‘person from abroad’. In consequence, Ms Czop was entitled to income support.

3.          The Secretary of State appealed against the First-tier Tribunal’s decision to the Upper Tribunal and I referred questions to the Court of Justice of the European Union. Essentially, I wanted to know whether Ms Czop had a right to reside as the primary carer of a child who had been self-employed but was no longer self-employed when her child entered education.

4.          In the event, the Court did not need to answer my questions, because Ms Czop had a right to reside under subsequent caselaw. The Court decided that a self-employed person was not a worker for the purposes of Article 12 of Regulation 1612/68/EEC. It went on:

35 It is settled case-law that periods of residence completed by a national of a non‑Member State in the territory of a Member State before the accession of the non‑Member State to the European Union must, in the absence of specific provisions in the Act of Accession, be taken into account for the purposes of the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38, provided that those periods were completed in compliance with the conditions laid down in Article 7(1) of that directive (Joined Cases C‑424/10 and C‑425/10 Ziolkowski and Szeja [2011] ECR I‑0000, paragraph 63).

36 In that regard, it is common ground that, by 29 May 2008 – the date on which she applied for income support – Ms Czop had resided in the United Kingdom for a continuous period of more than five years.

37 Secondly, according to the information provided by the United Kingdom Government at the hearing, it seems that Ms Czop had resided ‘legally’, for the purposes of Article 16(1) of Directive 2004/38, in the United Kingdom.

38 Although Ms Czop had not pursued an activity as a self-employed worker for five years in the United Kingdom and, consequently, did not meet the conditions laid down in Article 7(1)(a) of Directive 2004/38, she nevertheless – as the United Kingdom Government stated at the hearing – met the conditions laid down in Article 7(1)(b) of that directive.

5.          Accordingly, the First-tier Tribunal came to the correct decision when it found that she had right to reside. It only remains for me formally to dismiss the Secretary of State’s appeal to the Upper Tribunal, which I do.

6.          As I have dismissed the Secretary of State’s appeal, the decision of the First-tier Tribunal stands and must be implemented. The Secretary of State will now investigate and decide on Ms Czop’s entitlement, if any, to income support from 29 May 2008 (the date of her claim) until she returned to self-employment in September that year. That process may already have begun.

7.          The court did not answer the questions I summarised in paragraph 3 above. The issue whether a primary carer may have a right to reside of a formerly self-employed primary carer will have to be decided in an appropriate case.

8.          I note that the Court directed oral argument on, among other matters, ‘the question whether the refusal to grant income support constitutes discrimination within the meaning of Article 18 TFEU. In the event, it did not refer to that issue in its judgment. It does not appear to be covered by regulation 15A of the Immigration (European Economic Area) Regulations 2006 (SI No 1003), inserted by paragraph 9 of Schedule 1 to the Immigration (European Economic Area) (Amendment) Regulations 2012 (SI No 1547).