In the case of Hrabkova v Secretary of State for Work and Pension  EWCA Civ 794, the Court of Appeal has confirmed that self-employed workers do not hold the same rights as regular workers under EU Law. The question has risen whether a person with a child at school who had been self-employed and ceased work is able to claim Employment Support Allowance.
Under Article 10 of the EU Regulation 492/2011, the child of an EEA national who works or has worked in the UK has the right to continue his or her education in the UK. Furthermore, the primary carer of that child in education has a derivative right to reside in the UK.
Provision was introduced to recognise a right of residence in the Immigration (European Economic Area) Regulations 2006. This derivative right of residence is now located in the EEA Regulations 2016, more specifically Regulation 16(3) for the child and Regulation 16(4) for the parent.
EEA Nationals with a right to reside are entitled to access of certain public funds, including the afore-mentioned Employment and Support Allowance.
The case background regard Ms Hrabkova a Slovakian national. She entered the UK in 2001 with her son. She took up self-employment while her son started attending school. Due to an illness, she had to stop working.
The First-Tier Tribunal and the Upper Tribunal found that Ms Hrabkova did not currently have a right to reside in the UK due to the fact that she was self-employed and not a worker. Hence, she could not claim Employment and Support Allowance. An appeal was raised against this decision.
Ms Hrabkova submitted that:
“Applying the EU law principles of freedom of movement and/or non-discrimination, a self-employed person must have the same entitlement to ESA as a worker, and that accordingly Article 10 of the 2011 EU Regulations is to be interpreted as applying not only to workers but also to self-employed persons .”
The Court of Appeal decided that it does not need to refer the case to the Court of Justice of The European Union because the issues above had already dealt with in a previous case in 2013. It was previously found that Article 12 could not be interpreted as conferring a right to residence on an individual who is the primary carer of the child of a person who was or is self-employed.
The Court of Appeal further found that the doctrine of discrimination does not apply in this case as the Treaty of the Functioning of the European Union (TFEU) defines worker and self-employed separately. In other words, these two positions are not identical in EU Law.
This is not the first time that case law confirms that self-employed individuals do not have the exact same right as workers under EU law. In the case of Jessy Saint-Prix vs Secretary of State for Work and Pensions C-507/12, the court found that an EEA national who has become temporarily unable to continue working due to pregnancy or childbirth, retained her status as a worker in EU Law and therefore her right to residence in the UK. Self-employed individuals in same circumstances will not similarly retain their right of residence.