Secretary of State for Work and Pensions v Lucja Czop

Factual and Procedural Background

The case concerns an appeal against the refusal of an income support claim made by the Plaintiff, a Polish national who arrived in the United Kingdom in 2002 on a student visa and was granted leave to remain without recourse to public funds. The Plaintiff was self-employed from 2003 to November 2005 and again from September 2008. She has four children, three of whom were born in the United Kingdom. The Plaintiff's partner, also a Polish national, was self-employed between 2002 and 2007 and was forced to leave the United Kingdom in 2008 but returned in 2010 to live with the Plaintiff and her children.

The Plaintiff made a claim for income support on 29 May 2008, which was refused on 20 June 2008 on the basis that she was considered a person from abroad without a residence permit under Regulation 21AA(4) of the Income Support (General) Regulations 1987. The First-tier Tribunal allowed the Plaintiff's appeal, holding that she had a right to reside for the purposes of the regulation and was therefore entitled to income support. This decision was later reviewed under section 11 of the Tribunals, Courts and Enforcement Act 2007.

Legal Issues Presented

1. Whether the First-tier Tribunal erred in law by finding that the Plaintiff had a right to reside in the United Kingdom for the purposes of Regulation 21AA(4) of the Income Support (General) Regulations 1987.
2. Whether the Plaintiff had acquired a right of permanent residence under Article 16(1) of Directive 2004/38, taking into account her continuous residence and compliance with relevant conditions.

Arguments of the Parties

Appellant's Arguments

• The United Kingdom Government disputed that the Plaintiff's leave to remain was renewed on 28 April 2004.
• The Government argued that the Plaintiff did not have a residence permit under Regulation 21AA(4) and therefore was a person from abroad not entitled to income support.
• It was contended that the Plaintiff did not meet the conditions of Article 7(1)(a) of Directive 2004/38 as she had not pursued self-employment for five years continuously.

Appellee's Arguments

• The Plaintiff argued she had a right to reside for the purposes of the income support regulation and was entitled to such support.
• It was submitted that she met the conditions of Article 7(1)(b) of Directive 2004/38, thus qualifying for permanent residence despite not fulfilling the self-employment condition.
• The Plaintiff emphasized her continuous residence in the United Kingdom for over five years prior to the claim.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined whether the First-tier Tribunal made an error of law in its decision. It affirmed that the Tribunal did not err, noting that the Plaintiff had resided continuously in the United Kingdom for over five years by the date of her income support application. The court considered the Plaintiff’s legal residence status under Article 16(1) of Directive 2004/38, acknowledging that residence periods before Poland’s EU accession are relevant. Although the Plaintiff did not fulfill the self-employment condition under Article 7(1)(a), the court accepted that she met the alternative condition under Article 7(1)(b). Consequently, the Plaintiff held a right of permanent residence and was not to be classified as a person from abroad for the purposes of the income support regulations.

Holding and Implications

The court held that the decision of the First-tier Tribunal was correct and did not involve an error on a point of law. The Plaintiff was entitled to income support as she had a right of permanent residence under the relevant EU Directive and domestic regulations.

The direct effect of this decision is that the Plaintiff’s appeal against the refusal of income support succeeded. No new precedent was established beyond affirming existing principles regarding the acquisition of permanent residence and entitlement to income support.