Right to reside for the self-employed

Last updated: June 22, 2017

 MH v Secretary of State for Work and Pensions C3/2015/2886

The issue raised by this case in the Court of Appeal is whether the UK’s Immigration (EEA) Regulations 2006 must be read pursuant to EU law as providing a right to reside in the UK not only to EEA children in education whose parents have been employed persons, but also to those whose parents have been ­self-employed persons.  Regretfully the Court of Appeal has decided that there is no such requirement.

The Appellant, a Slovakian national, came to the UK in 2010 with her son.  She took up self-employment and her son started at school.  Subsequently, the Appellant had to give up her self-employment due to illness, while her son continued at school. As she was unable to work, the Appellant claimed Employment and Support Allowance (‘ESA’) but the DWP did not accept that either she or her son had the right to reside in the UK (one of the conditions of entitlement to ESA).  It is this decision which is the subject of appeal.

On behalf of the Appellant, it was submitted that there was no proper basis for distinguishing between the children of self-employed persons and children of employed persons and that preventing children of the self-employed from having the right to reside in the UK to enjoy education was a discriminatory and disproportionate limitation on the free movement rights of self-employed persons, contrary to the fundamental rights guaranteed by EU law.

An earlier case raising the same issue had been considered by the European Court of Justice (Secretary of State for Work and Pensions v Czop and Punakova [2012] EUECJ C-147/11).  While the CJEU had concluded in Czop that the then relevant EU regulation did not cover children of self-employed, it was submitted on behalf of Ms Hrabkova that it did not need to go further, given a concession by the UK, to consider whether children of self-employed persons enjoyed the same education right by direct application of the fundamental rights established by EU law.  As such, a preliminary reference to the CJEU was sought.

The Court of Appeal refused to make a reference to the CJEU and dismissed the appeal on the basis that (i) Czop was conclusive of the issue and could not be taken as leaving open the possibility that the non-discrimination principle might apply; and (ii) there was no relevant directly enforceable right under EU law for a self-employed person to be treated identically with an employed person where EU legislation indicates otherwise.

The Court of Appeal's judgment is available here

Permission to appeal to the Supreme Court is being sought.