Home > Cases > Upper Tribunal rules that “residence” in another EEA State is a judgment of fact and degree

If a UK national carries out duties for a charity in another EEA State intermittently for short periods, and is provided with board and lodging but not otherwise paid, does he “reside” there as a “worker” for the purpose of the Immigration (EEA) Regulations 2006, such that his German mother-in-law acquires a right to reside in the UK, and hence is entitled to state pension credit, as the family member of a self-employed EEA national?

The appellant in VW v Secretary of State for Work and Pensions(CPC/4072/2013) had moved to the UK in 2011 to be nearer her daughter, a Canadian national who was working in the UK, and her son-in-law, H, a UK national who was self-employed. Her application for state pension credit was refused on the ground that she lacked the right to reside in the UK for longer than 3 months, as required by regulation 2 of the State Pension Credit Regulations 2002.

Over three short periods in the late 80s/early 90s, H had carried out duties for the International Bible Students Association in Greece and Germany as a plumber and heating engineer. Each time, the cost of his travel was covered by the Association and he was provided with basic accommodation and food. He was not otherwise paid.

Upper Tribunal Judge C G Ward accepted the Secretary of State’s submission that, when asking whether an individual has “resided” in another EEA State, “what is required is… a judgment of fact and degree as to whether the individual has lived in the EEA State in question with sufficient permanence, continuity, or at least some expectation of continuity, to warrant the conclusion that he ‘resided’ there within the ordinary meaning of the word” (para. 40). In this case, the judge was not satisfied that H had ever “resided” in Greece or Germany for this purpose:

“41. … It may however be inferred that the reasons which led him to travel to Greece and Germany to perform, short-term and on a discontinuous basis, duties in which he was skilled on a basis which did no more than ensure he was not out of pocket to any significant extent[,] were those of Christian commitment to serve, as and when he had the opportunity to do so in a particular way, rather than any desire to shift his place of residence (or to acquire a second such place) from the UK to the country concerned… While I acknowledge that in principle he could have been ‘resident’ in both the UK and the other Member State(s) concerned, on the available evidence I do not consider that he was.”

As for whether H had been a “worker” while in Greece and/or Germany, the judge again agreed with the Secretary of State that this was a matter of fact and degree.

“48. […] I agree [with the submissions made for the Secretary of State] in that the lack of remuneration in that, broader, sense is apt to bear on the true nature of the relationship. While on the authorities an employment relationship will not cease to be one because it does not produce enough to live on, it seems to me that if the individual is not, in some broad sense, better off as a result of performing the services, this may be indicative of a lack of sustainability in the arrangement which may suggest that, in reality, the arrangement is of a nature other than employment (or self-employment)….”

For these reasons, Upper Tribunal C J Ward dismissed the appellant’s appeal.

Gwion Lewis represented the Secretary of State for Work and Pensions.

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