Yucel Dasdemir v The Secretary of State for the Home Department

Under Rule 21 of HC 510, self-employment may consist of providing services through personal skill. There is no universal minimum investment, requirement for premises, or requirement for a separate business bank account. The activity must nevertheless be genuine self-employment, rather than disguised employment or employment requiring a work permit.

The distinction is a factual assessment of the relationship as a whole. Control by the recipient of the services is a relevant and potentially decisive consideration. Working part-time for several businesses does not, without more, establish self-employment.

The appellant, a Turkish national, had leave under the Ankara Agreement to operate a Mexican restaurant. After that business failed, he told the Secretary of State that he was working as a self-employed chef for other restaurants.

The Secretary of State curtailed his leave and made a removal decision. The First-tier Tribunal dismissed his appeal, finding that his arrangements amounted to part-time employment rather than self-employment. The appellant appealed on the basis that the judge had imposed inappropriate requirements for self-employment and had failed properly to assess his circumstances.

The Upper Tribunal had to decide whether the First-tier Tribunal had made a material error of law, whether the appellant's work fell within Rule 21 of HC 510, and whether the simultaneous removal decision was valid.

1. The appeal against curtailment was dismissed. The First-tier Tribunal made no material error of law in finding that the appellant was a part-time employee and no longer a self-employed businessman.

2. Rule 21 of HC 510 extends to a person who invests personal skill in providing services. It does not impose fixed minimum requirements of financial investment, premises, a business bank account, or profit-sharing. The rule nevertheless excludes disguised employment and employment for which a work permit is required.

3. Whether a person is employed or self-employed is a factual question assessed on all the evidence. Control over the relationship is a relevant and potentially decisive consideration. Here, the appellant did the same work as restaurant staff, worked regular pre-arranged days solely for three businesses, and worked under each owner's directions as to when, where and what to prepare. Those matters supported the finding of employment. His own clothing, liability insurance, cash payment, tax treatment and culinary skill did not outweigh that conclusion.

4. Once the Secretary of State had shown a change of circumstances, the appellant bore the burden of showing that his proposed replacement activity remained self-employment within Rule 21. Post-decision material was relevant only if it existed when the curtailment decision was made, or later related to an issue then in existence.

5. The appeal against removal was allowed. The simultaneous removal decision appeared inconsistent with Adamally and Jaferi, [2012] UKUT 00414 (IAC). The Secretary of State could make a fresh removal decision.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal against the removal decision but dismissed the appeal against curtailment: [2013] UKUT 121 (IAC).
• First-tier Tribunal: Judge Tipping dismissed the appeal on 4 December 2012, finding that the appellant's activities amounted to disguised employment.