N v Her Majesty's Revenue and Customs (CHB)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Mitchell |
| Neutral Citation | [2021] UKUT 28 (AAC) |
| Subject Matter | European Union law - free movement,Mitchell,E |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Published date | 03 March 2021 |
N v HMRC (CHB) [2021] UKUT 28 (AAC)
CF/1789/2016 1
IN THE UPPER TRIBUNAL Upper Tribunal case No. CF/1789/2016
ADMINISTRATIVE APPEALS CHAMBER
Before: Mr E Mitchell, Judge of the Upper Tribunal
Date of hearing: 7 March 2020 (with subsequent written submissions)
Venue: Field House, Bream’s Buildings, Central London
Attendances: For the Appellant Mr Bagshaw (non-legally qualified advocate),
instructed by Citizens Advice Liverpool.
For the Respondent, Mr Rainsbury (of counsel), instructed by HMRC
Legal Services.
Decision: The decision of the First-tier Tribunal (7 March 2016, Liverpool, file reference SC
068/15/04138) did not involve the making of a material error on a point of law. Under section
11 of the Tribunals, Courts and Enforcement Act 2007, this appeal is DISMISSED.
REASONS FOR DECISION
Introductory
1. Despite the length of the reasons for this decision, the conclusion may be simply stated. A
street musician, or busker, as that undertaking is conventionally understood, cannot be a self-
employed person for the purposes of establishing a right to reside in the UK under EU law.
2. In these reasons:
- “2006 Regulations” means the Immigration (European Economic Area) Regulations
2006;
- “Child Benefit Regulations” means the Child Benefit (General) Regulations 2006;
N v HMRC (CHB) [2021] UKUT 28 (AAC)
CF/1789/2016 2
- “the Directive” means Council Directive 2004/38/EC;
- “Jany” means the decision of the European Court of Justice in Jany and Others v
Staatssecretaris van Justitie, Case C-268/99 (20 November 2001);
- “JR” means the decision of the Upper Tribunal in JR v Secretary of State for Work &
Pensions [2014] UKUT 154;
- “Tolsma” means the decision of the European Court of Justice in Tolsma (case C-
16/93)
- “Treaty” means the Treaty on the Functioning of the European Union;
- “van Roosmalen” means the decision of the European Court of Justice in van
Roosmalen v Bestuur van de Bedrijfsvereniging voor de Gezondheid, Geestelijke en
Maatschappelijke Belangen, Case 300/84 (23 October 1986)
Background
HMRC’s decision on Mrs N’s child benefit claim
3. Mrs N’s child benefit claim, dated 2 April 2015 was made in respect of one child. Her
claim form stated that she:
- was a Romanian national (and hence an EEA national);
- arrived in the U.K. more than three months ago;
- was a self-employed Big Issue seller, and had been so since 4 December 2015. She
earned about £280 per month; and
- was married to Mr N, also a Romanian national. His self-employment in the UK began
on 20 July 2010, and he earned £400 per month.
4. On 22 April 2015, HMRC asked Mrs N to complete the form UK Child Benefit for People
Coming from Abroad. Mrs N’s completed form stated that:
- she arrived in the UK in December 2010;
N v HMRC (CHB) [2021] UKUT 28 (AAC)
CF/1789/2016 3
- she intended to stay in the UK with Mr N for ten years; they had both come to the UK
to look for work;
- her self-employed work involved standing outside a supermarket offering Big Issue
magazines for sale to passers-by. She sold about 40 magazines each week and incurred
weekly travel expenses of £40;
- Mr N worked for 25 hours per week as a street musician and earned £5,200 per
annum. He had “several hundred” customers, i.e. passers-by;
- neither Mrs N nor Mr N had a VAT registration number, separate business bank
account nor accountant. They had not registered as self-employed with H.M.R.C;
- in Romania, Mrs N had worked as a casual agricultural labourer and Mr N as a street
musician; and
- Mr & Mrs N’s child started UK state education in September 2014.
5. On 4 June 2015, HMRC refused Mrs N’s child benefit claim on the ground that she did not
have a right to reside in the UK. Her subsequent appeal to the First-tier Tribunal mainly
focussed on the legal implications of her work selling the Big Issue which, for present
purposes, I need not go into. Insofar as Mr N’s situation was concerned:
(a) Mrs N’s request for mandatory reconsideration of HMRC’s decision argued that Mr N’s
self-employment was genuine and effective but did not give further details;
(b) by letter dated 22 September 2015, HMRC sought further information about Mr N’s work
including a breakdown of hours worked, invoices and receipts, and asked whether he was
registered for Class 2 National Insurance contributions. The letter also sought further
information about Mrs N’s Big Issue sales. Mrs N responded to the request for Big Issue
information but not to the queries about Mr N.
Proceedings before the First-tier Tribunal
6. Mrs N’s notice of appeal to the First-tier Tribunal was drafted by her representative at
Wavertree CAB. The notice of appeal did not address Mr N’s situation although subsequent
written submissions argued that he had worked as a street musician in the UK since 2010, his
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