DV v Her Majesty's Revenue and Customs (CHB)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Markus |
| Neutral Citation | [2017] UKUT 155 (AAC),[2017] UKUT 155 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | European Union law,Residence,presence conditions,European Union law - free movement,European Union law - workers,presence conditions - right to reside,Markus,K |
| Date | 06 April 2017 |
| Published date | 25 April 2017 |
DV v HMRC
[2017] UKUT 0155 (AAC)
1
IN THE UPPER TRIBUNAL Appeal No. CSF/251/2016
ADMINISTRATIVE APPEALS CHAMBER
Before: Upper Tribunal Judge K Markus QC
DECISION
The appeal is dismissed.
Representation:
Appellant: Mr D. Kelly (Welfare Rights Officer)
Respondent: Ms E. Roxburgh (counsel)
REASONS FOR DECISION
1. The short point in this appeal is whether the First-tier Tribunal erred in law in
deciding that the Appellant’s work as a Big Issue seller was not genuine and
effective so that it did not give rise to a right of residence for the purposes of
entitlement to child benefit. Permission to appeal was given by the First-tier
Tribunal. An oral hearing of the appeal took place before me on 29 March 2017.
The Appellant was represented by Mr David Kelly (welfare rights officer) and
HMRC was represented by Ms Elizabeth Roxburgh (counsel). I am grateful to
both for their written and oral submissions.
The law
2. The applicable law is not in dispute. In summary an EEA national’s right to reside
in the United Kingdom depends on their remaining a “qualified person”, which
includes a self-employed person, defined as “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”: regulations 14(1), 6(1) and
4(1) of the Immigration (European Economic Area) Regulation 2006 (“the EEA
Regulations”). Article 49 provides that freedom of establishment includes the
“right to take up and pursue activities as self-employed persons and to set up and
manage undertakings, in particular companies and firms…”.
3. Self-employment for these purposes has a Community law meaning. It exists
where economic activities are carried out by a person outside any relationship of
subordination with regard to the conditions of work or remuneration and under his
own personal responsibility: Jany v Staatssecretaris van Justitie Case C-268/99,
[2001] ECR I-8615 at paragraph 37. Economic activities include the provision of
services in return for some form of remuneration provided that the work performed
is genuine and effective rather than marginal and ancillary: Jany at paragraph 33.
4. The requirement for work to be genuine and effective applies equally to the
activities of employed persons, as to which there is a considerable body of case
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