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Cite as: [2012] UKUT 352 (AAC)

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Secretary of State for Work and Pensions v Margita Punakova [2012] UKUT 352 (AAC) (20 September 2012)
Residence and presence conditions
right to reside

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 168/09/00437, made on 11 May 2009 at Bromley, 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-148/11). In accordance with the normal practice of that Court, Ms Punakova 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.

A. History and background

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:

18 Ms Punakova, a Czech national, arrived in the United Kingdom on 3 March 2001 and was self-employed as a cleaner from 16 November 2007 to 8 September 2008. Her three children were born in the United Kingdom: Nikholas Buklierius, on 1 March 2003, Andreos Buklierius, on 7 July 2004, and Lukas Buklierius, on 21 April 2007. The eldest of those children entered general education a week before Ms Punakova ceased to be self‑employed.

19 On 15 September 2008, Ms Punakova made a claim for income support. As in the Ms Czop’s case, that claim was refused on the ground that she was a ‘person from abroad’. The First-tier Tribunal allowed Ms Punakova’s appeal.

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 Punakova had a right to reside on either of two bases: (i) the self-employed basis - as the primary carer of a child who was self-employed when her child entered education; or (ii) the common period basis - as the primary carer of a child who entered education at a time when his father was no longer a worker.

4. In the event, the Court did not need to answer my questions. As it explained:

27 So far as Ms Punakova is concerned, it is apparent from the file placed before the national court that she is the primary carer of her son Nikholas Buklierius, in education since September 2008 and the son of Mr Buklierius, a Lithuanian national who was employed in the United Kingdom during the years 2004, 2005 and 2008.

28 As the Government of the United Kingdom conceded at the hearing, as mother of a migrant worker’s child of whom she is the primary carer and who is attending educational courses, Ms Punakova therefore has a right of residence under Article 12 of Regulation No 1612/68.

5. As the case had appeared to me, there was no evidence that Mr Buklierius had been in work at any time when his child was in education. The Secretary of State took a different view. On that view, Ms Punakova had a right to reside under established caselaw. Accordingly, the First-tier Tribunal came to the correct decision when it found that she had that right. It only remains for me formally to dismiss the Secretary of State’s appeal to the Upper Tribunal, which I do.

B. The effect of my decision

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 Punakova’s entitlement, if any, to income support from 15 September 2008 (the date of her claim). That process may already have begun.

C. The questions referred to the Court of Justice of the European Union

7. The court did not answer the questions I summarised in paragraph 3 above. The self-employed issue will have to be decided in an appropriate case. The common period issue is now covered by legislation: regulation 15A(3) 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).

Signed on original
on 20 September 2012

Edward Jacobs
Upper Tribunal Judge

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