Hrabkova v The Secretary of State for Work and Pensions

Hearing dates: 28 February to 01 March 2017

Approved Judgment

Issue on this appeal

The issue on this appeal is whether this Court should request the Court of Justice of the European Union ("the CJEU") to give a preliminary ruling on the interpretation of EU Regulation 492/2011 ("the 2011 EU Regulations"), Article 10. That gives the child of a worker or former worker the right ("the education right") to education in the state in which his parent is employed. The parent of a child exercising the education right has a right to reside in that member state as a result. The question is whether an EU national self-employed parent ("the EU self-employed parent") of an EU national child in education here has, by virtue of the provisions of the EU treaties and the right to equal treatment, the same right to reside here as an EU national employed parent ("the EU worker parent") of a child in education here, who has such a right as a result of Article 10. The appellant will then be entitled to income-related Employment and Support Allowance ("ESA"), to which she is not currently entitled because she is a former self-employed person and not a worker or former worker. In these circumstances she is treated by domestic legislation as not having a right to reside.

Factual and legal context in which this question arises

The background can be shortly stated. The appellant is a Slovakian national. She entered the UK on 21 August 2001 with her son. She took up self-employment and her son entered school in the UK. The appellant ceased work through illness and her son continues to be in education here. The appellant claimed ESA but her claim was rejected on the basis that she did not have the required right to reside in the UK. She appealed to the First-tier Tribunal and then to the Upper Tribunal. Both tribunals dismissed her appeal. The appellant claims a derivative right of residence under EU law: she claims that her son is entitled to be educated here and that, as a result, she has a derivative right of residence as his primary carer to reside here to enable him to exercise that right. These rights are derived on her case from Article 10 of the 2011 EU Regulations.

ESA is an income-based benefit paid to those with limited capability for work or limited capability for work-related activity. The basic conditions of entitlement are set out in section 1 of the Welfare Reform Act 2007. The amount of the benefit is calculated by reference to section 4 of the Welfare Reform Act 2007 and to the Employment and Support Allowance Regulations 2008 ("the ESA Regulations").

The appellant must show that under domestic legislation she has a right to reside in the UK. This is because the overall effect of Regulations 69, 70 and Part 1 of schedule 5 to the ESA Regulations is that a "person from abroad" has a nil "applicable amount" of ESA.

The appellant cannot show a right to reside in the UK under these Regulations. Regulation 70 defines "person from abroad" so far as material in the following terms:

70 Special cases: supplemental — persons from abroad

"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.

A claimant must not be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless the claimant 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). … (emphasis added)

If the appellant had been a former worker, she would have a right to reside which is derived from her son because she is his primary carer. This derivative right is defined by Regulation 15A(3)(b) of the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations"). (The 2006 Regulations have now been repealed, but subject to transitional savings). Regulation 4 of the 2006 Regulations defined "worker" and "self-employed person" as follows:

4.—(1) In these Regulations —

(a) "worker" means a worker within the meaning of Article 45 of the Treaty on the Functioning of the European Union;

(b) "self-employed person" means a person who establishes himself in order to pursue activity as a self-employed person in accordance with Article 49 of the Treaty on the Functioning of the European Union;

Regulation 15A(3)(b) of the 2006 Regulations provided:

Derivative right of residence

15A.—(1) A person ("P") who is not an exempt person and who satisfies the criteria in paragraph (2), (3), (4), (4A) or (5) of this regulation is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria.

…

(3) P satisfies the criteria in this paragraph if—

(a) P is the child of an EEA national ("the EEA national parent");

(b) P resided in the United Kingdom at a time when the EEA national parent was residing in the United Kingdom as a worker; and

(c) P is in education in the United Kingdom and was in education there at a time when the EEA national parent was in the United Kingdom.

Regulation 15A (3) implemented Article 12 of EU Regulation No 1612/68 ("the 1968 EU Regulations"). These Regulations were replaced in 2011 by the EU Regulation No 492/2011 ("the 2011 EU Regulations"). I refer to both sets of Regulations together as "the EU Regulations". Article 12 of the 1968 EU Regulations conferred a right to education on children of a worker from one member state in another member state where the worker is employed. It has been replaced by Article 10 of the 2011 EU Regulations. There is no material difference in the wording of Articles 12 and 10 of the relevant Regulations. It is sufficient in this judgment primarily to refer to Article 10.

Article 10 provides as follows:

Workers' families

Article 10

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…. [emphasis added]

The expression "employed" is not defined by the EU Regulations, but the concept of "worker" has been elucidated by the CJEU. An essential feature is that "a person performs services for and under the direction of another person in return for which he receives remuneration" ( Case 53/81 Levin v Staatssecretaris van Justitie [1982] 2 CMLR 454). In other cases, where a person is not a worker but provides services, freedom of establishment is available.

Secretary of STate for Work and Pensions v Czop and self-employed parents' rights

As drafted, Article 10 applies only to the children of employed persons. The CJEU confirmed this in Case 147/11 Secretary of State for Work and Pensions v Czop [2013] PTSR 334 (which was joined with another case, Case 148/11 Secretary of State for Work and Pensions v Punakova).

Mrs Czop was a Polish national who had come to the UK before Poland acceded to the EU. She had been self-employed and claimed income support for a period prior to resuming self-employment. She had a child in education in the UK, who had come to the UK after Poland's accession to the EU and after Mrs Czop ceased to work in the UK.

The questions referred were whether, in these circumstances, Mrs Czop had a right to reside in the United Kingdom:

on the basis that (individually or cumulatively)

[1 ] Regulation No 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) [2003] ICR 1347 [2002] ECR I-7091; Ibrahim and Secretary of State for the Home Department (Case C-310/08) [2010] PTSR 1913 [2010] ECR I-1065; and Teixeira (Case C-480/08) [2010] PTSR 1913 [2010] ECR I-1107;

[2] there is a general principle of EU law that equates the position of workers and the self-employed;

[3] it would impede or deter the freedom of establishment if the claimant did not have a right to reside? [bracketed numbers added]

The CJEU held that a worker who was the primary carer of a child to which Article 12 applied had a derivative right of residence under its jurisprudence (see judgment, [25]).

However, the CJEU held that this did not assist Mrs Czop as a self-employed person does not come within Article 12:

29 On the other hand, Ms Czop cannot derive a right of residence from the sole fact that she is the primary carer of her son Lukasz Czop, who entered the educational system in the United Kingdom in 2006.

30 Neither the father of Lukasz Czop nor Ms Czop herself has been employed in the United Kingdom. It is apparent from the clear and precise wording of Article 12 of Regulation No 1612/68, which refers to 'the children of a national of a Member State who is or has been employed', that that provision applies only to the children of employed persons.

31 Moreover, the literal interpretation of that provision, according to which it applies only to employed persons, is supported both by the general scheme of Regulation No 1612/68, the legal basis for which is Article 49 of the...