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[2009] UKUT 58 (AAC) (11 March 2009)

IN THE UPPER TRIBUNAL Appeal No. CIS/3213/2007

ADMINISTRATIVE APPEALS CHAMBER

Before: UPPER TRIBUNAL JUDGE ROWLAND

Decision: The decision of the Blackburn appeal tribunal dated 24 May 2007 is set aside and there is substituted a decision that, on 22 July 2006, the claimant had a right to reside in the United Kingdom as a self-employed person. Other issues arising on his claim for income support are to be determined by the Secretary of State.

REASONS FOR DECISION

1. The claimant is a citizen of the Czech Republic who had made claims for income support and housing benefit and council tax benefit in 2005. Those claims had been rejected on the ground that the claimant had no right of residence in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland. I have today dismissed appeals by the claimant arising out of those claims (CIS/2675/2006 and CH/4255/2006).
2. On 22 July 2006, the claimant made another claim for income support. It appears that housing benefit and council tax benefit had been awarded on 6 July 2006 with effect from 29 May 2006 and that may have prompted the new claim for income support. The precise basis of the award of housing benefit and council tax benefit is unclear but it may have been on the ground that the claimant had acquired a right of residence by becoming self-employed. It appears that he had been working on a self-employed basis for about three or four hours a week from 22 May 2006, as an interpreter but, unsurprisingly, without making any profit. In fact, most of his work was marketing and preparatory and the first payment he received was in August 2006 for work one earlier in that month. Before May 2006, he had done some interpreting on a voluntary basis. He started an ESOL course for six hours a week on Mondays and Wednesdays in September 2006 and the information on the claim also suggested he had been on a part-time course from 3 October 2005 to 9 June 2006.
3. On 31 October 2006, the Secretary of State disallowed the new claim for income support on the ground that the claimant had no relevant right of residence and so could not be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland and was a "person from abroad" with an applicable amount of nil (see regulations 21 and 21AA of the Income Support (General) Regulations 1987 (S.I. 1987/1967, as then in force)). The claimant appealed. On 24 May 2007, the case came before the Blackburn appeal tribunal which was told that the claimant had been awarded income support from 7 February 2007 on the basis that he had a right to reside in the United Kingdom as a self-employed person. The tribunal dismissed his appeal on the ground that "regulations" required that self-employment be "registered with Her Majesty's Revenue and Customs in order to get worker status" and the claimant had not been registered until December 2006.
4. The tribunal did not identify the "regulations" in question but may have relied upon the submission made by the Secretary of State. Regrettably, the Secretary of State appears to have misrepresented the law. He said –

"[The claimant] … remains an accession State national requiring registration in accordance with regulation 2(4) of the Accession (Immigration and Worker Registration) Regulations 2004, because the self-employment was not registered with HMRC.

Regulation 6(1)(c) of the Immigration (European Economic Area) Regulations 2006 states that a worker must register with HMRC as a self-employed person.

Regulations 8(2) to (11) describe the manner in which the application should be made."

However, regulation 6(1)(c) of the 2006 Regulations (S.I. 2006/1003) says nothing about registration with HMRC and neither does regulation 4 where "self-employed person" is defined as "a person who establishes himself in order to pursue activity as a self-employed person in accordance with Article 43 of the Treaty establishing the European Community". The reference to regulation 8(2) to (11) in the Secretary of State's submission is presumably to the 2004 Regulations (S.I. 2004/1219) but those Regulations are concerned with workers within the scope of Article 39 of the EC Treaty, rather than self-employed persons within the scope of Article 43, and they make no reference to registration with HMRC.

5. It may be true that, for tax and National Insurance purposes, a self-employed person is required to register that status with HMRC. However, it does not follow from a failure to register that a person may not be regarded as a self-employed person. An inability to show registration may in some circumstances be evidence from which it may be inferred that a person is not self-employed but, as the Secretary of State now concedes, that is not the position here, particularly as the time for registering was still running at the date of the claimant's claim for income support.
6. The Secretary of State concedes that the appeal tribunal's decision must be set aside and invites me to give a decision to the effect that the claimant was a self-employed person at the date of his claim to income support on 22 July 2006. In view of the circumstances of this case, the amount of time that has elapsed and the period that is in issue, I am prepared to accept that invitation without giving the facts of the case any more detailed consideration.
7. Accordingly, I allow the claimant's appeal and find that he did have a right of residence at the time of his claim for income support because he was a self-employed person.

MARK ROWLAND

11 March 2009