Punakova: Whether formerly self-employed EU nationals with children in education in the UK have a right to reside

Last updated: February 25, 2013

Punakova C-148/11 (Joined with Czop C-147/11) - Right to reside test - Formerly self-employed workers with children in education - 'Baumbast' rights - Article 12 Regulation (EEC) 1612/68 on the freedom of movement of workers.

This was a potential test case extending the scope of the “right to reside” test, which governs access to certain benefits for EU workers in the UK. It follows from a series of cases in the European Court of Justice (Baumbast C-413/99, Ibrahim C-310/08 and Teizeira C-480/08) establishing residence rights for EU nationals who (i) were formerly employed in the UK and (ii) are the primary carer of a child who is in education in the UK (see CPAG’s previous post on "Baumbast" rights).

The question in this case was whether this rule also applies to the children of EU nationals who had previously been self-employed. The issue is important because without a right to reside such children will be left in poverty.

Ms Punakova was a self-employed Czech national with two children in education who claimed income support on the birth of her third child. This was refused and she appealed to the First-tier Tribunal which found she did have a right to reside. The Secretary of State for Work and Pensions appealed to the Upper Tribunal, which referred the question to the European Court of Justice (the “ECJ”).

The ECJ heard the case in May 2012. Just before the hearing, the UK Government conceded that the claimant’s child’s father had previously been employed in the UK and therefore she had a right to reside as the primary carer of a migrant worker's child. The ECJ therefore did not need to consider the self-employment issue and consequently, in a decision published on 21 November 2012, Upper Tribunal Judge Jacobs dismissed the Secretary of State’s appeal.

The question of whether a formerly self-employed primary carer of a child in education has a right to reside falls to be answered in a future case.

Counsel in this case was Helen Mountfield QC.