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Neutral Citation Number:	2011 UKUT 109 AAC
Reported Number:
File Number:	CIS 2357 2009
Appellant:	Secretary of State for Work and Pensions
Respondent:	MP
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	14/03/2011
Date Added:	19/04/2011
Main Category:	Residence and presence conditions
Main Subcategory:	right to reside
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2013] AACR 6 Free movement of workers – whether an EU citizen formerly in self-employment has a right of residence when caring for a dependant child Ms Czop and Ms Punakova arrived separately in the United Kingdom (UK) some years before 2004 when their respective countries of origin, Poland and the Czech Republic, joined the European Union (EU). Thereafter, Ms Czop and Ms Punakova remained in the UK and established themselves in self-employment and both also had a child in education for which they were the primary carer (Ms Czop stopped work before her child started school). In 2008 both Ms Czop and Ms Punakova separately claimed income support. Each was refused benefit on the grounds that they were persons from abroad. They both appealed. In each case the First-tier Tribunal (F-tT) allowed the appeal holding that the claimant had a right to reside in the UK and was habitually resident (not a person from abroad). The F-tTs granted the Secretary of State permission to appeal against the decisions to the Upper Tribunal (UT). Following an oral hearing the UT judge decided to refer various questions to the Court of Justice of the European Union (CJEU) concerning whether anyone in similar circumstances had a right to reside in the UK on the basis that: (a) Regulation 1612/68 applied, together with the reasoning of the Court of Justice of the European Union in Baumbast and R v Secretary of State for the Home Department [2002] ECR I-7091, London Borough of Harrow v Ibrahim [2010] ECR I-1065 and Teixeira v London Borough of Lambeth [2010] ECR I-1107; (b) there was a general principle of EU law equating the position of workers and the self-employed; (c) it would impede or deter the freedom of establishment if the claimants did not have a right to reside; or (d) some other basis. During the hearing before the CJEU the Secretary of State accepted that both claimants had a right to reside for the purposes of their claims to benefit: Ms Czop by reason of five years residence and Ms Punakova as the primary carer of a child in education by reason of her partner having been a worker. Accordingly, the CJEU did not need to consider whether or not there was a right of residence on some other basis of European law. Held, that: 1. Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community must be interpreted as conferring on the person who is the primary carer of a migrant worker’s, or a former migrant worker’s, child who is attending educational courses in the host Member State a right of residence in that State, although that provision cannot be interpreted as conferring such a right on the person who is the primary carer of the child of a person who is self-employed (paragraph 40); 2. Article 16(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States must be interpreted as meaning that a European Union citizen who is a national of a Member State which recently acceded to the European Union may, pursuant to that provision, rely on a right of permanent residence where he or she has resided in the host Member State for a continuous period of more than five years, part of which was completed before the accession of the former State to the European Union, provided that the residence was in accordance with the conditions laid down in Article 7(1) of Directive 2004/38 (paragraph 40). Following the CJEU’s ruling the UT judge dismissed the appeals, as the F-tT’s decisions did not involve any errors in law, and referred both cases to the Secretary of State so that the claimant’s benefit claims could be determined.
Decision(s) to Download:	CIS 2357 2009-00.doc [2013] AACR 6ws.doc