Hrabkova v The Secretary of State for Work and Pensions

Article 10 of EU Regulation No 492/2011 applies only to children of nationals who are or have been employed in another member state. It cannot be extended to include self-employed persons, so the primary carer of a child of a self-employed person has no derivative right of residence under that provision.

The Treaty on the Functioning of the EU and the Charter do not create a general right to equal treatment between workers and self-employed persons where specific EU legislation draws a distinction. A prior CJEU decision resolving the issue meant that no further preliminary reference was required.

The appellant, a Slovakian national, entered the United Kingdom with her son, became self-employed, and ceased work through illness. Her son remained in education in the United Kingdom. Her claim for income-related Employment and Support Allowance was rejected because she was treated as lacking a right to reside.

The First-tier Tribunal and the Upper Tribunal dismissed her appeal. Before the Court of Appeal, she argued that EU law gave a self-employed parent the same derivative right of residence as a worker parent, or that a preliminary reference should be made to the CJEU. The central issue was whether Article 10 of EU Regulation No 492/2011 could extend to self-employed persons.

1. Appeal dismissed. Arden LJ gave the judgment, with Black and Flaux LJJ agreeing.
2. The CJEU decision in Secretary of State for Work and Pensions v Czop [2013] PTSR 334 resolved the issue. It held that the relevant education provision conferred a derivative right of residence on the primary carer of a migrant worker’s or former migrant worker’s child, but not on the primary carer of the child of a self-employed person. The CJEU treated that reasoning as part of its decision, rather than obiter. Its statement that it was unnecessary to consider another possible basis of residence did not leave the self-employed-parent issue open.
3. That conclusion was consistent with the wording and structure of EU Regulation No 492/2011, whose relevant chapter concerns workers and workers’ families. It was also consistent with Tilianu [2011] PTSR 781. The Court saw no proper basis for treating Tilianu as decided per incuriam. Morelle Ltd v Wakeling [1955] 2 QB 379 showed that per incuriam requires an omission to take account of binding statutory material or case law, not merely the absence of a particular argument.
4. The alternative argument based on non-discrimination also failed. The authorities relied on for nationality discrimination did not establish equal treatment between workers and self-employed persons. Other authorities concerned particular contexts, such as residence cards or dependent relatives, and did not establish a general rule of identical treatment. The Treaty on the Functioning of the EU subjects free movement and residence rights to treaty conditions and implementing measures. It does not give a directly enforceable right to erase a distinction drawn by specific EU legislation. The Charter may assist in interpreting EU legislation, but cannot extend EU competence or bypass those limitations. No further reference to the CJEU was warranted.

• Court of Appeal (Civil Division): Appeal dismissed: [2017] EWCA Civ 794.
• Upper Tribunal (Administrative and Appeals Chamber): Upper Tribunal Judge Jacobs dismissed the appeal from the First-tier Tribunal’s decision.
• First-tier Tribunal: Appeal against refusal of income-related Employment and Support Allowance dismissed.