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Tribunal rules a Big Issue seller has no right of residence in EU law

Tribunal rules a Big Issue seller has no right of residence in EU law

Seems like a dubious decision to me on the facts, but it cannot be faulted for rehearsing the relevant law quite thoroughly. The lady in question was earning a steady £50 per week working a 40 hour week and the First-tier dismissed the appeal on the basis that the work was not “genuine and effective”:

19. I considered the totality of the appellant’s family financial circumstances. The appellant’s rent was met by Housing Benefit and she claims Tax Credits of about £150 per week. The appellant’s earnings from selling the Big Issue make up the remainder of the family income and I hold on the balance of probabilities that the appellant’s self employment is not genuine in the sense that it generates a meaningful income. I hold the appellant’s self employment to be a means of demonstrating economic activity for the purposes of qualifying for benefits to which the appellant would otherwise not be entitled to as a person from abroad. In my view earnings of £50 per week plus tips less costs, if any, of travelling to and from work are so low that they must properly be described as marginal and ancillary and therefore the appellant’s self employment cannot be considered to be effective.

24. The appellant’s self employment in the form of a Big Issue seller does not generate an income which enables her to be self sufficient without recourse to public funds. Despite the low return on her efforts the appellant confirmed in her oral evidence that her self employment income was a useful and necessary addition to the household income to the extent that she would not contemplate giving it up or even diverting some of her time to seeking paid employment or more remunerative self employment. I held on this evidence that the appellant was content to continue with her unviable business as it at least served the purpose of giving her the status of a self employed person which in turn gave her a right to reside in the UK for the purposes of claiming other benefits. The appellant’s self- employment in these circumstances is, in my judgment, neither genuine nor effective.

The Upper Tribunal upholds that decision on the basis that the First-tier had not erred in law by either taking into account the proportion of income from social assistance or by treating the low income as determinative.

This should not be taken as indicative that a Big Issue seller is never a worker for the purposes of EU law. The earlier authority of Bristol City Council v FV (HB) [2011] UKUT 494 (AAC) is an example of a decision going the other way.

Source: DV v Secretary of State for Work and Pensions (European Union law – free movement) [2017] UKUT 155 (AAC) (6 April 2017)

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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