Czop

I was the representative in this case. I attach a copy of the judgment.
The United Kingdom conceded its appeal five minutes before the ECJ hearing. It was stated that this was because it was (suddenly) accepted she had attained a permanent residence right, having been in the UK lawfully for more than five years at the time she claimed Income Support.
During this five year period she had variously been a student, self-employed, an employee (very briefly), and the partner of a self-employed person. There were evidential problems with establishing she had attained a permanent right, which is why it had not been actively pursued. So I was very taken aback when they conceded on this basis.
I believe they did so because they were aware that this case would test whether self-employed migrant Union citizens have equivalent rights to social assistance in a host member state as employee migrants, and they knew our arguments had sufficient weight to establish that they do.
They therefore conceded on the basis of self-sufficiency because that took her employment status, and that of her partner, out of the equation.
It is stated at paragraph 39 of the judgment that, as the UK had conceded on the basis of five years’ self-sufficiency, there was ‘no need to consider whether Ms Czop also has a right of residence on another basis under European Union law’.
In the newsfeed piece, it is stated that the ECJ held that Article 12 of EC Regulation 1612/68 does not expressly apply to self-employed migrants. However, this does not mean that our other arguments would not have succeeded, had they been considered. As stated, the UK conceding for the reason it did at the stage it did meant that they were not, in this case.
I would be very keen to pursue another case with similar facts, as this point of law still needs testing and I have undertaken extensive research and preparation.
I am happy to eneter into correspondence with anyone who shares my interest in this subject!

I note at para 40, the ruling, that the judges stated the provision MUST be interpreted as applying to “workers” but can’t be interpreted as applying to the self-employed.

Is the question on the self-employed and Teixiera still open for debate?

Does the ruling, itself, not put an end to the question?

At paragraph 22 of the judgment, it is stated that the Upper Tribunal referred three questions to the ECJ to enable it to establish whether Ms Czop had a right to reside in the UK at the time in question, for purposes of claiming Income Support:

1) Did Regulation 1612/68 apply?
2) Is there a general principle of EU law that equates the position of workers and the self-employed? and/or
3) Would it impede or deter the freedom of establishment (in self-employment in a host Member State) if she did not have a right to reside in those circumstances?

Only the first of these questions is answered by this judgment. The other two remain ‘up for grabs’, and there are strong arguments as to why both should be answered affirmatively.

However, as stated at paragraph 63 of the judgment, the court did not deem it necessary to consider those arguments on this occasion. This was because the United Kingdom conceded its appeal at the eleventh hour, on the basis that it had changed its mind, and now accepted she derived a permanent right of residence under Article 16(1) of Directive 2004/38 (paragraph 61).

It also conceded its appeal against the First-tier decision in Ms Punakova’s case on a relatively weak, less rigorously pursued basis.

I remain convinced that it did so with a view to avoiding these cases testing the second and third questions.

Thanks for your response Gwyneth, wasn’t quite sure what the ruling meant with regard to the “self-employed” v “worker” situation, but you have confirmed my thoughts.

By the way,if I do come across people with cases resembling this one, is it ok to forward your details so they could contact you and discuss?

Thanks.

That would explain why a case of mine, (concerning whether a 16 year old Polish national, estranged from parents, could receive IS in order to continue education, on basis of right to reside derived from self-employed father), which was stayed awaiting the outcome of the Punakova case, was suddenly and unexpectedly reviewed to produce a positive outcome.

Gwyneth King - 07 September 2012 01:33 PM

I am happy to eneter into correspondence with anyone who shares my interest in this subject!

I have a couple of clients affected by this. One’s Swedish, the other Norwegian, which makes the citizenship arguments a bit trickier, though not impossible in my view.

I would be really interested to get in touch with you about this - is it possible to send a private message on here so I can give you my details?

It is really awkward for everyone else when the Government concedes a point in a particular case. Because it hasn’t been decided by the Court, it is not an authority that can create a precedent for other cases. So just because your client’s case may look similar on the facts to one where there has been a concession, you can’t rely on it to have the same outcome.

Yes, I’m more than happy to correspond about any similar cases, and to share my legal research. You could send a private message on here, or email me at work - .(JavaScript must be enabled to view this email address).

And re. them conceding - don’t even get me started! It was infuriating.