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Self employed & Teixeira case
Hi Guys, sorry another long winded R2R case…any advice would be very much appreciated.
Client is aged 30 with two dependants aged 8 & 2 years. Client is currently receiving CTC and CHB.
Client is a Bulgarian national, arrived in the UK on 15/06/2008 to join her husband (also Bulgarian) who was working in the UK.
Client is now separated from her husband, separation date 20/02/2012.
Client tells me her husband was self employed and also worked for an employer since entering the UK. However, client does not have any contact with her husband, neither does she have access to any documents relating to her husbands work status.
Both her children are in full time education in the UK
Client is not currently looking for work because she has to care for her child aged 2 years.
Client has worked as a self employed cleaner and on and off during 2008 & 2011 all of which amount to 1-3 months work at a time.
Client has never applied for a workers registration certificate.
Client made a claim for Income Support but has been refused based on R2R.
Client does not have to apply for workers registration certificate because she is self employed. She is not working because she is unable to due to child care. I do not think she meets the criteria under the Teixeira case as there is no evidence that the client or her husband hold a workers registration certificate.
Question - Do self employed count towards Teixeira case and would client have to provide evidence of her husbands work history?
Would client be entitled to claim JSA is she does not have a workers registration certificate?
1. The issue of whether or not a person who is the primary carer of the children of a formerly self employed person has a right to reside where those children are receiving education is due to be decided in the Czop and Punakova cases. Judgment is to be given by the Court of Justice on 06/09/2012.
2. Worker registration certificates were for A8 nationals. Bulgaria is an A2 state. The rules for this relate to worker authorisation (basically if you are an A2 national subject to worker authorisation you need the permission BEFORE you start work).
3. I note you say her husband worked for an employer. If this was authorised work (or he was a person not subject to authorisation) then she may have Teixeira rights anyway on that basis.
4. If her husband is self employed NOW then she has a right of residence through him in any event (provided not divorced- see Diatta v Land Berlin case.
5. In terms of evidencing husband’s work if she cannot do this then she should explain why to the DWP and ask them to check with HMRC (give as much detail about his NINO, age, name, proof of marriage as possible etc)- they are required to do this- see Kerr v DSDNI [2004] UKHL 23 at around paras 60-66. If they don’t do it then client should possibly win appeal in any event.
And to answer question - if client has a R2R she can claim JSA. She will if cases in 1 succeed or 3 or 4 applies.
[ Edited: 7 Aug 2012 at 01:56 pm by Martin Williams ]1. The issue of whether or not a person who is the primary carer of the children of a formerly self employed person has a right to reside where those children are receiving education is due to be decided in the Czop and Punakova cases. Judgment is to be given by the Court of Justice on 06/09/2012.
2. Worker registration certificates were for A8 nationals. Bulgaria is an A2 state. The rules for this relate to worker authorisation (basically if you are an A2 national subject to worker authorisation you need the permission BEFORE you start work).
3. I note you say her husband worked for an employer. If this was authorised work (or he was a person not subject to authorisation) then she may have Teixeira rights anyway on that basis.
4. If her husband is self employed NOW then she has a right of residence through him in any event (provided not divorced- see Diatta v Land Berlin case.
5. In terms of evidencing husband’s work if she cannot do this then she should explain why to the DWP and ask them to check with HMRC (give as much detail about his NINO, age, name, proof of marriage as possible etc)- they are required to do this- see Kerr v DSDNI [2004] UKHL 23 at around paras 60-66. If they don’t do it then client should possibly win appeal in any event.
And to answer question - if client has a R2R she can claim JSA. She will if cases in 1 succeed or 3 or 4 applies.
Brilliant! Thanks Martin!
So the husband and the client would have had to obtain prior authorisation before working in the UK, does this count for self employed workers too? Or do they not have to obtain prior authorisation if self employed?
Client is not too sure about her husband working for an employer now? But if he was she would automatically have the R2R and the DWP could check with HMRC?
Client does not seem to have any documentation. How would she prove that she or her husband had prior authorisation to work? If client and husband have NI No: etc would this be enough to prove authorisation has been given?
Sorry for all the questions, I tend to get very confused with these cases!!
FYI, here are rightsnet news item stories on the Punokova and Czop cases, quoted by Martin, which give links to the cases themselves:
FYI, here are rightsnet news item stories on the Punokova and Czop cases, quoted by Martin, which give links to the cases themselves:
Thanks Domino
FYI, here are rightsnet news item stories on the Punokova and Czop cases, quoted by Martin, which give links to the cases themselves:
Thanks Domino
Oh, not subscribed :o( Keep on at my employers…need to get on at them a bit more!!
hi cookie ...
all cabx have free access ... you just need to email us the subs code from CABlink
cheers - shawn
hi cookie ...
all cabx have free access ... you just need to email us the subs code from CABlink
cheers - shawn
In all the years i have worked here and i never knew this!! Thanks Shawn!
To answer your last two questions:
1. No, self-employed Bulgarians do not need special permission to work as a sole trader or one-man-band company director. They have the same rights in that regartd as any other EEA national
2. Possession of a NINO does not in itself prove that the husband’s work as an employee was authorised. He would have needed a NINO to pay NI contributions while he was self-employed. But it does make it easier for DWP to keep to their side of the info-gathering bargain: the more evidence the claimant can provide, the better the chance the DWP will be able to confirm her story. Obviously she must know her husband’s name and DOB, his NINO narrows it down further, the place where and dates when he worked would be even better.
Thank you thats great!