Retaining self employment status - right to reside

Client is a Latvian National, came to UK in 2009 with her 2 children and was self employed as a cleaner.  In March 2011 she married a Pakistani national with limited leave to remain although she does not know what type of visa he had or if he had a public funds restriction.  She then fell pregnant and had to give up self employment in August 2011 early in the pregancy because of severe morning sickness.  She has not worked since - says she was unwell thorughout the pregancy.  In late 2011 she separated from her husband and the baby was born in March 2012.

Applied for IS in September 2012 and is awaiting a decision.  Has also made several tax credits claims as a lone parent during summer and autumn 2012 but these seem to have failed as she did not supply documents on request.  Has recenty claimed again and is waiting for a decision from HMRC.  Seems to have been in reciept of Child Benefit continuously since arriving in UK. 

Says she is currently not sure whether she will ever return to the self employed work.  At present does not want to because of the difficulty of getting childcare.  My gut feeling is she will struggle to argue that she has retained self employed status - but I would welcome second opinions on this.  As far as I can tell she does not have a right to reside via any other route.

Are her children in education? We’re currently waiting for reasons from the First-Tier Tribunal, which rejected our appeal, in a similar case to Czop (formerly self-employed, children in education). Argument is that this gives the carer a RTR similar to Teixera and Ibrahim though it’s far from resolved and we’re looking to appeal to the UT.

I wonder whether a similar argument to Zambrano might apply. If TCNs can get Zambrano protection, then, a fortiori, so should EU citizens. But will be difficult as the domestic benefits Regs have been amended and you will not only have to argue these are unlawful but that Zambrano goes further than is explicit (though I would say actually Zambrano goes further than the basic EU position - citizenship is the fundamental status after all).

Neither of these arguments, however, will get you anything in the short-term as far as I know. I’m not too familiar with the rules around interim payments (though I do know the Birmingham Law Centre are JR-ing a decision not to grant a Crisis Loan and Interim Payments to a TCN in the Zambrano situation).

It might nonetheless be possible to argue she is still self-employed. Self-employment encompasses both time of feast and famine, as the judge said in SSWP v JS (IS) [2010] UKUT 240 (AAC) (see CPAG’s note on Tilianu here http://www.cpag.org.uk/content/right-reside-and-self-employment-review). She then retained this status through sickness under art 7(3)(a) Dir 2004/38 and is now in the stages of evaluating the profitability of certain ventures. Obviously, if she tells a judge she doubts she’ll be active again, then this might damage things; but I would argue that an element of doubt as to your future activity is always present in self-employed activity - no matter how bleak things look.

And, of course, work as little as a couple of hours a day, no matter how low-paid, is still self-employed activity so long as it’s genuine and effective (ECJ Case Jany). Taking in some ironing or whatever should be enough.

I’d be careful of arguing JS in this case; the facts were very different. JS had kept working, albeit only a couple of hours here and there and was trying to ramp up their business again; there wasn’t a distinct end point such as falling ill involved.

True, though where the end-point is temporary illness, you can retain your worker/self-employed status under the Directive. But I accept this looks like a very difficult case on the facts.