Tilianu, R (on the application of) v Secretary of State for Work and Pensions

Under article 7(3)(b) and (c) of Directive 2004/38, retention of worker status after involuntary unemployment applies to a person who was a worker in the EU-law sense. It does not extend to a person who was self-employed, even though article 7(1)(a) separately recognises workers and self-employed persons as grounds for residence.

The distinction is supported by the wording and structure of the Directive, including article 17, which expressly refers to both unemployment and periods not worked. Any marginal anomalies created by the bright-line distinction do not justify altering its plain meaning. The court decided the legal issue without determining the appellant’s actual employment status.

The appellant, a Romanian national and Union citizen, entered the United Kingdom in June 2008 and worked under the Construction Industry Scheme. He later suffered serious illness, claimed employment and support allowance and then claimed jobseeker’s allowance. His benefit claims and application for a crisis loan were refused on the basis that he lacked a right to reside and was a person from abroad.

He sought judicial review and a declaration that self-employment fell within article 7(3)(b) and (c) of Directive 2004/38. The Administrative Court dismissed that contention: [2010] EWHC 213 (Admin). The appeal concerned whether a former self-employed person could retain worker or self-employed status under those provisions. The court proceeded without findings by a competent tribunal about the appellant’s true employment status.

1. Appeal dismissed. The appellant was not entitled to the declaration sought. The court stressed that it was deciding only the construction of article 7(3)(b) and (c), not whether the appellant had in fact been a worker or an independent provider of services.
2. For EU-law purposes, the status of worker is autonomous. It concerns a person who performs services for and under the direction of another in return for remuneration, as distinct from an independent provider of services. The legal label attached to the relationship is not determinative.
3. On the natural meaning of article 7(3), the references in sub-paragraphs (b) and (c) to involuntary unemployment, having been employed, and registering as a job-seeker concern persons who have been workers. Article 7(3)(a), which plainly accommodates both workers and self-employed persons during temporary incapacity, is neutral rather than evidence that (b) and (c) cover both classes.
4. The other language versions could not be used to enlarge the English text. The Directive’s recitals and antecedent measures did not establish a different intention. Article 17 materially supported the respondent’s construction because it expressly distinguished unemployment from periods not worked and referred to both employed and self-employed persons.
5. The resulting bright-line distinction may produce anomalies, such as different consequences for a business owner and an employee whose work ends in the same event. Such anomalies do not displace the plain meaning of the legislation once employment status has been ascertained.

Lord Justice Moore-Bick and Lord Justice Elias agreed with Lord Justice Sedley. The appeal was dismissed.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the construction of article 7(3)(b) and (c) adopted below.
• Administrative Court: The Administrative Court rejected the argument that self-employment was covered by article 7(3)(b)–(d): [2010] EWHC 213 (Admin).