Personal Immigration

Retained worker status for self-employed in line with employed workers - Court of Justice decision in C-442/16, Gusa, 20 December 2017

The Court of Justice decision in Gusa may be very important to EU nationals and family members looking to make applications for permanent residence based on retained worked status, or, as in the case itself, in relation to showing entitlement to social assistance.

The Facts

Mr Gusa, a Romanian national, entered the Republic of Ireland in October 2007 and was supported by his adult children who also resided there. From October 2008 until October 2012, he worked as a self-employed plasterer and paid his taxes etc. in Ireland.

He stopped working in October 2012, claiming an absence of work caused by the economic downturn, and registered as a jobseeker with the relevant Irish authorities. He then had no more income, as his children had left Ireland and were no longer supporting him financially.

Mr Gusa made an application for jobseeker’s allowance in November 2012, which was refused, as he could not demonstrate that he had a right to reside.  This was challenged and ultimately the Supreme Court (Ireland) made a reference to the CJEU.

The questions referred were:

‘1.  Does an EU citizen who (i) is a national of another Member State; (ii) has lawfully resided in and worked as a self-employed person in a host Member State for approximately four years; (iii) has ceased his work or economic activity by reason of absence of work and (iv) has registered as a jobseeker with the relevant employment office retain the status of self-employed person pursuant to Article 7(1)(a) whether pursuant to Article 7(3)(b) of Directive 2004/38 or otherwise?

2.  If not, does he retain the right to reside in the host Member State not having satisfied the criteria in Article 7(1)(b) or (c) of Directive 2004/38 or is he only protected from expulsion pursuant to Article 14(4)(b) of Directive 2004/38?

3. If not, in relation to such a person is a refusal of a jobseeker’s allowance (which is a non-contributory special benefit within the meaning of Article 70 of Regulation No 883/2004) by reason of a failure to establish a right to reside in the host Member State compatible with EU law, and in particular Article 4 of Regulation No 883/2004?’

Decision

The Court relied on the purpose of the Directive – to remedy the sector-by-sector, piecemeal approach which characterised the instruments of EU law which preceded that directive and which dealt separately, in particular, with workers and self-employed persons, by providing a single legislative act codifying and revising [pre-existing legislation]’ and found at paragraph 41 that:

“To interpret Article 7(3)(b) of that directive as covering only persons who have worked as employed persons for more than one year and excluding those who have worked as self-employed persons for that period would run counter to that purpose.”

The Court identified that this would introduce an “unjustified difference” in treatment between employed and self-employed workers.

Impact on Immigration (EEA) Regulations 2016 

The definition of ‘qualified person’ in Regulation 6 of the 2016 Regulations does not reflect the approach of the CJEU, and it may be that the Regulations have to be disapplied by the courts and tribunals until such a time as they are amended.

This is good news for self-employed people and their family members looking to apply for permanent residence if the self-employed person had to stop work during the relevant five year period and is able to show that they retained their qualified person status.

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For advice and assistance in relation to an EEA residence card application or appeal, contact our EEA Immigration Barristers in London on 0203 617 9173 or via our our enquiry form.

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