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Court of Justice finds that self-employed women have maternity rights
Credit: Heather Mount on Unsplash

Court of Justice finds that self-employed women have maternity rights

Yes, the Court of Justice of the European Union has had to find that self-employed EU citizens retain rights of residence during their maternity period. Why on earth the government of the United Kingdom tried to argue they did not is one of those mysteries to which we’ll probably never know the answer. Particularly when the outcome of the case — C‑544/18 HMRC v Dakneviciute — seemed legally inevitable and Brexit has highlighted the need for security of residence rights for women.

We’ve covered this issue repeatedly here on Free Movement. It was astonishing when the UK tried to argue that employed women did not retain rights of residence during time off for maternity reasons. It was astonishing when the UK tried to argue that the period should be less than 12 months. It was astonishing when the UK reversed its policy that self-employed women could also retain rights during time off for maternity.

Essentially, the UK position has been that women who have even short periods of maternity leave lose their EU law right of residence and therefore lose their right to welfare benefits and stop accruing continuous residence to count towards permanent residence.

In Dakneviciute, handed down on 19 September 2019, the Court of Justice held as follows:

a woman who ceases self-employed activity in circumstances where there are physical constraints in the late stages of pregnancy and the aftermath of childbirth retains the status of being self-employed, provided that she returns to the same or another self-employed activity or employment within a reasonable period after the birth of her child.

That the court needed to say this is a sad reflection on the UK’s approach to the rights of EU citizen women.

Well done to my colleagues Adrian Berry and Desmond Rutledge, who have been leading on this issue for years now. As Adrian says over on the Garden Court Chambers website:

This highly significant ruling allows pregnant women to retain a right to reside in the UK during pregnancy and maternity and to be eligible for child benefit, tax credits, homelessness assistance, social housing and other related benefits. It also gives them lawful residence in this period.

Had the Government succeeded many women would have lost their means to live at a critical time in their lives. The ruling protects the position of women and new-born babies.

Perhaps we can now move on. But I’ve thought that before and repeatedly been proven wrong.

Further reading: Adrian writes about the decision on his personal blog, while Desmond took a close look at the legal issues in a previous Free Movement post.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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