R (Tilianu) v Social Fund Inspector
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Moore-Bick,Lord Justice Elias |
| Judgment Date | 08 December 2010 |
| Neutral Citation | [2010] EWCA Civ 1397 |
| Docket Number | Case Nos: C1/2010/0556 & C1/2010/0556(A) |
| Court | Court of Appeal (Civil Division) |
| Date | 08 December 2010 |
[2010] EWCA Civ 1397
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Christopher Symons QC
(Sitting as a Deputy High Court Judge)
Before Lord Justice Sedley
Lord Justice Moore-Bickand
and
Lord Justice Elias
Case Nos: C1/2010/0556 & C1/2010/0556(A)
Mr Simon Cox and Ms Alison Pickup (instructed by Streetwise Law Centre) for the Appellant
Mr Jason Coppel and Denis Edwards (instructed by DWP Legal Group) for the Respondent
This appeal against the judgment of Christopher Symons QC, sitting as a deputy judge of the Queen's Bench, comes before the court by permission of Lord Justice Scott Baker, who wrote:
“I think that there are issues here that warrant the attention of the Court of Appeal, although the appellant may have an uphill struggle to succeed.”
The issue in the appeal is stated in this way by Simon Cox, counsel for the appellant:
“whether an EU citizen who is no longer a self-employed person retains the status of worker or self-employed person in the circumstances described in sub-paragraphs (b) and (c) of article 7(3) [of Directive 2004/38] by virtue of his previous employment as a self-employed person.”
The question has been answered in the negative by the judgment of the deputy judge, [2010] EWHC 213 (Admin), as well as by a decision of Judge Rowland in Secretary of State for Work and Pensions v RK [2009] UKUT 208 (AAC), both of them impressively reasoned decisions. Before answering it for ourselves, it is necessary to describe what I regard as the unsatisfactory way it has come before the court.
Mr Tilianu is a Romanian national and thus an EU citizen. He came to the United Kingdom in June 2008 and began working under the Construction Industry Scheme. He was able to produce some payslips for this period. From January to February 2009 he says he worked for his uncle, though the legal nature of the relationship is obscure. Then on 26 February 2009 he was admitted to hospital with a drug-resistant form of TB. Before his discharge on 13 July 2009 he claimed employment and support allowance (ESA), then after his discharge claimed jobseeker's allowance ( JSA). While the latter claim was pending Mr Tilianu ran out of funds and applied for a crisis loan from the social fund.
Both allowances were refused on the ground that, having no right to reside here, the appellant was not habitually resident. This has not been directly challenged. The crisis loan was refused on review by a social fund inspector (SFI), on the ground that, since he was not habitually resident, the appellant was a “person from abroad” and therefore ineligible. A challenge by way of further review failed.
This was the situation when the case came before the Administrative Court. But shortly before the hearing in this court a fresh decision was made that the appellant was after all entitled to ESA, and a payment was made to him accordingly. This is something of an embarrassment for the Secretary of State, since the decision, which is in law his own decision, is to an extent contrary to the stance he takes in these proceedings through his counsel Jason Coppel.
But these proceedings have not taken the form of a claim for benefit. There have been as yet no findings of fact by a competent tribunal. Rather than pursue his appeal to the tribunal against the refusal of JSA, Mr Tilianu sought by way of judicial review a declaration that self-employment comes within the meaning of “employment” in article 7(3)(b) and (c) of the Directive, together with consequential relief which is no longer material. Since no appeal lay from the refusals of a crisis loan it was not realistic for the Secretary of State to submit that judicial review was the wrong way to proceed; but the result has been that we are required to answer the question without reference to ascertained facts. In particular we do not know what the true employment status of the appellant was at each material time.
The reason why this may not only matter but be crucial is that the concept or status of self-employment, on which the present question of law turns, is elusive. It is, first of all, an oxymoron: you cannot in law or in common sense be employed by yourself. What it signifies in English is carrying on business on your own behalf by providing services to others. Its counterpart in both the Treaty and the Directives is “worker”. The equivalents in the French version of the Directive are travailleur non salarié – a non-salaried worker – and travailleur salarié; in the German version, Selbstständiger – literally a freestanding person – and Arbeitnehmer – literally one who takes work. These disparities of language and usage, however, are not problematical because they are subsumed in the autonomous meaning given by EU law to both concepts. For EU purposes, a worker is anyone who, irrespective of the legal label put on the relationship, “performs services for and under the direction of another person in return for which he receives remuneration” as contrasted with “independent providers of services”: Allonby v Accrington and Rossendale College [2004] ICR 1328 (ECJ), §67–8.
We do not know where Mr Tilianu comes on this spectrum; but Mr Cox's case is that, even if he falls outside the catholic EU class of ‘worker’ and turns out to have been an independent provider of services, the appellant is still entitled to the benefits he claims. The unlikelihood of this being the case with an unskilled building worker underscores the inappropriateness of litigating on a bare hypothesis.
In this factual vacuum, I turn to the question of law. It arises from article 7 of the Directive, of which the two material paragraphs read:
Article 7—Right of Residence for more than three months
1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
(a) are workers or self-employed persons in the host Member State; or
(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State
….
3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self- employed person in the following circumstances:
(a) he/she is temporarily unable to work as a result of an illness or accident;
(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job- seeker with the relevant employment office;
(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than one year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the...
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