In the case of Hrabkova v Secretary of State for Work and Pension [2017] EWCA Civ 794, the Court of Appeal confirmed once again that self-employed individuals do not have the same rights as workers under EU law. The specific question in this case was whether a person with a child at school who had been self employed and ceased work might be entitled to claim Employment Support Allowance.

Some legal background

It might be useful to start by setting out the law underpinning this case.

By virtue of Article 10 of the EU Regulation 492/2011, the child of an EEA national who works or has worked in the UK has the right to continue his or her education in the UK.

In addition, the primary carer of that child in education has a derivative right to reside in the UK.

Provision was made to recognise a right of residence in the Immigration (European Economic Area) Regulations 2006. This derivative right of residence can now be found in the EEA Regulations 2016,  at Regulation 16(3) for the child and Regulation 16(4) for the parent.

By way of example, Alain is a French national who came to the UK with his eight year old daughter, Laure, in September 2015. Laure started school then. In January 2017 Alain has an accident and has to stop working. Under Regulation 16(3), Laure continues to have the right to reside in the UK so that she may continue her education. Alain is Laure’s primary carer and therefore also has a right to reside in the UK under Regulation 16(4).

EEA nationals with a right to reside are entitled to certain benefits, including Employment and Support Allowance (“ESA”). Therefore, in the example above, Alain could claim ESA.

Factual background

Ms Hrabkova is a Slovakian national. She entered the UK in 2001 with her son. She took up self-employment while her son started school. She then had to cease work because of illness while her son remained in school.

The First-Tier Tribunal and the Upper Tribunal found that Ms Hrabkova did not have the right to reside in the UK, as she was previously self-employed and not a worker. Therefore, she could not claim Employment and Support Allowance. Ms Hrabkova appealed against the decision.

The issue of the appeal

The basic issue of the appeal was whether the primary carer of a child who was self-employed had the same rights to social security as one who was employed.

The Appellant submitted that

applying the EU law principles of freedom of movement and/or non-discrimination, a self-employed person must have the same entitlement to ESA as a worker, and that accordingly Article 10 of the 2011 EU Regulations is to be interpreted as applying not only to workers but also to self-employed persons [23].

The Appellant agreed, however, that these questions had to be referred to the CJEU for a preliminary ruling. The questions to be asked to the CJEU would be whether, in the case-scenario above, “self-employed” should be read into the Regulations because

1. there is a general principle of EU law that equates the position of workers and the self-employed;
2. it would impede or deter the freedom of establishment if the claimant did not have a right to reside;
3. it would interfere disproportionately with the claimant or the claimant’s child’s rights as a citizen of the EU to reside in its member states?

A self-employed individual does not have the same rights as a worker under the Regulations

The Court of Appeal decided that it didn’t have to refer the case to the CJEU because the issues above had already been dealt with in the case of Czop [2013] PTSR 334 . In that case, the CJEU had found that Article 12 could not be interpreted as conferring a right to residence on the person who is the primary carer of the child of a person who is or was self-employed.

The Court of Appeal further found that the doctrine of discrimination did not apply.

the fact is that it is clear that the TFEU draws a distinction between the status of “worker” and that of “self-employed” and it is not open to the courts to treat the two statuses as identical [72].[…]

There is, as I see it, no relevant directly enforceable right under the TFEU for a self-employed person to be treated identically with an employed person where as here EU legislation indicates otherwise [73].

It is not the first time that case law confirms that self-employed individuals do not have the same rights as workers under EU law. In the case of Jessy Saint–Prix vs Secretary of State for Work and Pensions C-507/12, for example, the court found that an EEA national who becomes temporarily unable to work due to pregnancy and childbirth, retained her status as a ‘worker’ in EU law and therefore her right of residence in the UK. Self-employed individuals in same circumstances will not similarly retain their right of residence.