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Neutral Citation Number:	2009 18
Reported Number:
File Number:	CF 2266 2007
Appellant:	The Commissioners for Her Majesty’s Revenue and Customs v Ruas [2009] EWCA Civ 1043)
Respondent:
Judge/Commissioner:	Judge J. Mesher
Date Of Decision:	23/03/2010
Date Added:	12/02/2009
Main Category:	Residence and presence conditions
Main Subcategory:	presence
Secondary Category:	European Union law
Secondary Subcategory:	Council regulations 1408/71/EEC and (EC) 883/2004
Notes:	Reported with the decision of the Court of Appeal as [2010] AACR 31 Residence and presence conditions – presence condition – entitlement to child benefit for child not in Great Britain – meaning of “employed or self-employed person” in Article 1 of Council Regulation (EEC) 1408/71 The claimant was a Portuguese national. He came to the United Kingdom from Portugal in 2000 with his wife and youngest daughter. His two elder daughters remained in Portugal, and he sent money for their upkeep. The claimant worked in Britain and paid national insurance contributions until he became unable to work in 2004 because of ill-health. Child benefit was claimed for all three children in January 2002, but was awarded only in respect of his youngest daughter. In 2006 the claimant asked for a review and completed a form applying for child benefit for his two elder daughters. At that time he was in receipt of disability living allowance and income support and qualified for national insurance credits on the ground of incapacity for work. The Commissioners for Her Majesty’s Revenue and Customs refused his application in respect of his two elder daughters because they were not, and could not be treated as being, in Great Britain as required by section 146(1) of the Social Security Contributions and Benefits Act 1992. The issue on appeal was whether he could benefit from Article 73 of Council Regulation (EEC) No 1408/71 as an employed or self-employed person and therefore entitled to United Kingdom family benefits in respect of members of his family residing in another Member State. The tribunal held (following R(F) 1 /94). that although he came within the personal scope of the Regulation because he had been employed in the United Kingdom he could not benefit from Article 73 because he was not employed or self-employed at the time of the claim. The Upper Tribunal judge declined to follow R(F) 1/94 on the point in issue and held that the circumstances of the claimant in the present case could not be distinguished in any relevant way from those accepted by the European Court of Justice in Case C-85/96 Martinez Sala v Freistaat Bayern [1998] ECR I-2691 and Case C-262/96 Sürül v Bundesanstalt für Arbeit [1999] ECR I-2685 as meeting the definition of “employed or self-employed person” in Article 1(a)(ii) of the Regulation, under which he could be identified as an employed or self-employed person on the basis of the relevant scheme being one for all residents or the whole working population. Provided he satisfied the condition in section 143(1) of the 1992 Act by contributing to the cost of providing for his elder daughters at a weekly rate not less than the relevant weekly rate of child benefit, they were members of his family for the purposes of Article 73 and he was entitled to child benefit for them. The Commissioners appealed to the Court of Appeal. The Commissioners argued (citing Case 17/76 Brack v Insurance Officer [1976] ECR 1429, Case 84/77 Caisse Primaire d’Assurance Maladie d’Eure-et-Loir v Tessier [1978] ECR 7 Case C-15/90 Middleburgh v Chief Adjudication Officer [1991] ECR 1-4655 and C-4/95 and C-5/95 Stöber and Piosa Pereira v Bundesanstalt für Arbeit [1997] ECR 1-511) that the effect of the United Kingdom’s entry in Annex 1 to the Regulation was to restrict limb (ii)(a) of Article 1 to persons who are currently an “employed earner” or a “self-employed earner” within the meaning of the domestic legislation or a person claiming a benefit who was previously employed and whose national insurance contributions can be linked to the benefit claimed. Held, dismissing the appeal, that: 1. Brack, Tessier, Middleburgh and Stöber do not clearly support the Commissioners’ analysis of the effect of the United Kingdom’s entry in Annex 1 and had the Community jurisprudence ended with Stöber, there would have been sufficient doubt to warrant a reference to the European Court of Justice (paragraphs 50 to 56); 2. doubts were, however, removed by the ECJ’s judgment in Sala, where the ECJ plainly did not require, for the purposes of Mrs Sala’s entitlement as an employed person within Article 1(a)(ii), that she should be in current employment or that there should be a link between the benefit she claimed and her previous employment, and that interpretation was confirmed by Case 182/78 Bestuur van het Algemeen Ziekenfonds Drenthe-Platteland v G Pierik [1979] ECR 1977 (paragraphs 57 to 60); 3. that interpretation was supported by the policy underlying the Regulation disclosed by its recitals, which show that, although the Regulation is an instrument for co-ordination rather than harmonisation, the policy underlying the Regulation is that, in support of the freedom of movement of workers who are nationals of Member States, employed persons and self-employed persons moving within the Community should be subject to the social security scheme of only one single Member State in order to avoid the overlapping of national provisions and ensuing complications, and that the exceptions to the general rule should be as limited as possible (paragraph 61).
Decision(s) to Download:	[2010] AACR 31 bv.doc