Legal challenge regarding qualified person status for A2 national

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  • #38170
    mwake
    Participant

    We have a case of a single Romanian lady with a dependant child.
    She came into the UK in 2009 and moved to Newcastle on 30/10/2010.
    She registered as self-employed with HMRC however she has told us that she has not done any self-employed work since the end of July 2010.
    We have refused her HB/CTB as we beieve that she is a PFA and therefore not entitled to benefit.
    We made this decision because we believe that she does not fall into the groups of A2 nationals who can claim HB/CTB; she is not working and registered with WAS or SAWS; she is not a highly skilled migrant; she was not working legally prior to 01/01/2007 and has not completed 12 months continuous work prior to 01/01/2007 and she is not working as self-employed (by her own admission she has not done any self-employed work since the end of July 2010.
    She has appealed against our decision.
    HB Reg 10(3) is mentioned and we are told that a right to reside will not qualify to meet Reg 10(3) if it is one of those listed in Reg 10(3A) (those listed are only the right of residence all EEA nationals have during their first three months in the UK and the right of residence which an EEA national who is a jobseeker or the family member of a jobseeker has). Accordingly, any right of residence which an A2 national has in the UK other than those listed in Reg 10(3A) will be sufficient to meet Reg 10(3).
    She has accepted that Circular A10/2010 confer rights to a child of a national of a memeber state who has been employed but not self-employed.
    However she argues that the Upper Tribunal in Secretary of State for Work and Pensions v MP (IS) [2011] UKUT 109 (AAC) did not accept that was the case and ask us to look at paragraph 19 of the judgement.
    We have looked at this case and as it involves a Czech national who lived in the UK from 03/01/2001(prior to her country acceding to the EU)it cannot apply to an A2 national.
    Reference is also made to the Baumbast, Ibrahim and Teixeira cases.
    However we believe that these cases do not match this case.
    Basically what we are asking is can we pay HB/CTB to this claimant?
    We don’t think that we can.

    #107550
    Kay_Tade
    Participant

    It’s a case fully loaded with questions but it’s of no aid to her as decision has been referred to ECJ. BUT, I may be in a minority here, I think, as long as Ibrahim and Teixeira fits, then it doesn’t matter if you were self-employed or employed. As long as you have worked and have been lawfully resident in the UK then Ibrahim and Teixeira says you have R2R based on Art 12 for the child.

    #107556
    Debbie Wake
    Participant

    Doesn’t A10/2010 exclude self employed A2 Nationals from the Ibrahim/ Teixeira judgements? It may be chsnged following the ECJ decision but for now won’t the current judgements stand?

    #107560
    Kay_Tade
    Participant

    The circulars are only guidance.

    This is an extract from Deborah Lawrie-Blum v Land Baden-W├╝rttemberg, C-66/85, 3 July 1986 (EU caselaw)

    “Free movement of workers is a fundamental freedom of all EU nationals. This case is very important because it confirms that principle and provides a definition of who is a worker. While some Member States argued that the definition of a worker is in accordance with their national law, the Court held that the meaning of the term is a common Union one across the Member States. Any EU national who fills the conditions:
    -for a period of time;
    -provides services to another person or company; My emphasis : [Self employed]
    -is under the direction of another person;
    -receives remuneration for those services is a worker and thus entitled to full range of EU freedoms and rights.”

    I think Secretary of State for Work and Pensions v MP (IS) [2011] UKUT 109 (AAC) has been referred to ECJ to better clarify the Ibrahim/ Teixeira judgements

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