Key Facts
- •VB, a Norwegian national, and AD, a British citizen, jointly claimed Universal Credit (UC).
- •The Secretary of State for Work and Pensions (SSWP) initially denied VB UC entitlement due to lacking a qualifying right to reside.
- •VB appealed to the First-tier Tribunal (FtT), which allowed the appeal based on a since-overturned Court of Appeal decision.
- •The Upper Tribunal (UT) considered three potential bases for VB's right to reside: self-employment, self-sufficiency, and retained worker status.
- •The UT considered evidence of VB's actions in setting up a lingerie business, including purchases of materials and registration with HMRC.
Legal Principles
Freedom of establishment under Article 49 TFEU and its implementation in UK law.
Article 49 TFEU, Directive 2004/38, Immigration (European Economic Area) Regulations 2016.
Right of residence for self-sufficient persons under Article 7(1)(b) of Directive 2004/38 and its implementation in UK law.
Article 7(1)(b) Directive 2004/38, Immigration (European Economic Area) Regulations 2016, C-247/20 VI v Commissioners of HM Revenue and Customs, C-140/12 Pensionsversicherungsanstalt v Brey.
Retention of worker status under Article 7(3) of Directive 2004/38 and its implementation in UK law.
Article 7(3) Directive 2004/38, Immigration (European Economic Area) Regulations 2016, KH v Bury MBC and SSWP, C-507/12 Saint Prix, SSWP v MK.
Outcomes
The UT allowed the SSWP's appeal on a point of law but remade the decision in favour of the claimants.
The UT found that VB had a qualifying right to reside based on her self-employment activities, concluding that she had taken sufficient preparatory steps towards a genuine and effective business before the date of the DWP's decision.