Self-Employed vs Worker: Romanian national’s “Right to Reside” dilemma

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  • #38692
    selina_neville
    Participant

    Can someone shed some light as we are in a “Catch 22” situation…

    Romanian national, came over to the UK as a self-employed builder with his wife and children. They claimed HB/CTB and this was awarded based on the fact the claimant had a ‘qualifying right’ to reside as a self-employed earner.

    After more than 12 months that the claimant had been working as a self-employed builder, the work “dried up” and he claimed JSA. The DWP determined that he ceased to retain the right to reside after he stopped working as a Self employed earner (irrespective of whether he hed been working in that capacity for over 12 months as he was not a ‘worker’) nor was he entitled to JSA/HB/CTB as a Job Seeker within the definitions of Article 7(3)(b) European Parliament and Council Directive 2008/38, which states that a person is not “a person from abroad” provided that person is duly recorded as being unemployed after having been employed for more than one year and has registered as a job seeker with the relevant employment office.

    Our claimant was (arguably) not employed (as such) prior to becoming unemployed i.e. he was a Self employed earner. Moreover, in the case of R (Tilianu) v SS for Work and Pensions (which the claimant’s Rep’s originally sought to rely on) the High Court decided that only workers could retain their rights (to reside) in this way, when they became unemployed.

    Whilst that decision is going to Appeal, the claimant has now gone and got himself a job (with an employer) and re-applied for HB/CTB. This is where we need some guidance:

    As our claiamnt is now working, does that mean that he may have acquired new rights to reside as a ‘worker’ (and may be entitled to HB/CTB)? I am not absolutely clear on this – but believe that he will need to provide us with a Worker Permit (showing that he is authorised to work) and Accession Worker Card….should he apply for these permits now, seeing he has already been in the country (and worked as a self-employed builder) for over a year? :~

    Any advice is much appreciated.

    Selina

    #109286
    Kay_Tade
    Participant

    Hi Selina, yes he needs to register the work in order to continue to claim. This would mean he is no longer self-employed and must be a worker.

    The only way, without going into retaing status and all that, he could have been entitled to claim was if he considered himself as still self-employed when the work dried up. If he did he would be ok to claim HB/CTB and JSA.

    #109287
    selina_neville
    Participant

    Makes sense, thanks Kay

    Selina

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