(European Union law : free movement) [2014] UKUT 573 (AAC)

UKUT-AAC
(European Union law : free movement)
[2014] UKUT 573 (AAC) · 2014-12-31
[1]This case was initially argued primarily on the footing of whether particular arrangements constituted a person a “worker” or not. In any event, after careful consideration, in particular in relation to the impact of the recent decision of the Court of Justice of the European Union in C-456/12 O and B , EU:C:2014:135 , I have concluded that the appeal fails additionally on the ground of lack of any sufficient “residence” on the part of the person concerned. I am sorry that it has taken me some time to come to this position and regret any inconvenience this may have caused.[2]A summary of the facts of the case, largely taken from the skeleton argument for the appellant which is accepted by the respondent, appears below.[3]The appellant is a German national born in 1934 who moved to the UK on 29 December 2011 in order to be nearer to her daughter (a Canadian national who is working in the UK) and son-in-law (“Mr H”) (a UK national who is self-employed in the UK). The appellant is financially dependent on her daughter and son-in-law.[4]Mr H has (to put it neutrally) carried out duties for the International Bible Students Association (“the Association”) in Greece and Germany as a plumber and heating engineer on three separate occasions. On each occasion, the cost of his travel was covered by the Association and other incidental costs of carrying out the duties were met and board and lodging were provided. He received no payment of money other than reimbursement of the items mentioned above. There is no evidence that he was accompanied on these trips. His periods of work were as follows:(a) 18 September 1989 to 18 October 1989 (Greece)(b) 7 December 1990 to 22 December 1990 (Greece)(c) 28 August 1993 to 11 September 1993 (Germany). It is convenient to note here that, as regards Greece, these fall after the date at which regulation 1612/68 first applied to Greece, namely 1 January 1988 (see Art 45 of the Act of Accession of the Hellenic Republic).[5]In May 2003 Mr H married his wife, the appellant’s daughter.[6]On 22 February 2012, the respondent determined that the appellant was not entitled to state pension credit on the ground that she lacked the right to reside for the purpose of regulation 2 of the State Pension Credit Regulations 2002/1792 (“the 2002 Regulations”).[7]On 8 October 2012 the Association printed off a document entailed “International Worker Profile” in respect of Mr H, which in due course formed part of the evidence before the First-tier Tribunal (FtT). It set out personal details including noting “Pay Way? Yes”, and particulars of a number of matters specific to the Christian faith, such as his date of baptism and his membership of particular Christian organisations. It recorded Mr H’s years as a skilled plumber, noting “Small commercial/domestic design & installation. Registered plumber. Hotwater installator (sic). For QBs with team”. It noted the sort of placements for which he was available (two weeks) and then set out under “History” particulars of the assignments noted above, along with observations having the flavour of a reference, such as “Outgoing, friendly personality. Proficient in all aspects of plumbing. Capable pipe-welder. Keenly interested in supporting construction.” It was, in short, a document by which the Association maintained records of a person it might wish to involve again in connection with its activities.[8]The appeal came before the FtT, which considered the following issues:(1) whether the appellant had a right to reside in the UK for a period longer than three months on the basis that she was the family member of a self-employed EEA national (Mr H) by virtue of Mr H having resided as a worker in another member State and the operation of regulation 9 of the Immigration (European Economic Area) Regulations 2006/1003 (“the 2006 Regulations”);(2) whether the appellant had a right to reside under article 7 of Directive 2004/38; and(3) whether there is an accidental lacuna in EU legislation covering economically inactive migrants in the UK who are family members of UK citizens.[9]A hearing on 6 July 2012 was adjourned part-heard so that Mr H, who had not attended on that occasion, could be invited to give oral evidence about his activities in Greece and Germany at a resumed hearing, which duly took place on 11 December 2012.[10]The FtT found against the appellant on all three points. Permission to appeal was subsequently given by a judge of the FtT, without limitation, but with the observation that: “Whilst most of the arguments which are made in the application appear to be without merit, it is reasonable for the Upper Tribunal at least to have the opportunity of considering the applicability to this case of R(IS)4/09.” (R(IS)4/09 is a case where a claimant was able successfully to assert that it would be disproportionate to deny them a right of residence relying directly on article 18 of the EC Treaty (now art 21 TFEU).)[11]Before the Upper Tribunal, the grounds remained essentially the same, although the second and third grounds were run together and a further ground had been added in the light of the judgment of the CJEU in C-140/12 Pensionsversicherungsanstalt v Brey which had been delivered in September 2013. The additional ground suggested that it was unlawful for the respondent automatically to refuse the appellant pension credit on the basis that she failed the right to reside test in regulation 2.[12]Written submissions were directed following the oral hearing on a point which had not figured with any prominence at it, namely what was meant by “residence” for the purposes of reg 9 of the 2006 Regulations (for which, see [20] below). The right to reside under State Pension Credit legislation[13]To be able to claim state pension credit a person must be “in Great Britain”: see State Pension Credit Act 2002, s.1(2)(a). Reg 2 of the 2002 Regulations provided at the date of decision: “2.— Persons not in Great Britain(1) A person is to be treated as not in Great Britain if, subject to the following provisions of this regulation, he is not habitually resident in the United Kingdom….(2) No person shall be treated as habitually resident in the United Kingdom… unless he has a right to reside in … the United Kingdom… other than a right to reside which falls within paragraph (3).(3) [There is no suggestion that the appellant has a right to reside covered by any of the provisions listed in this paragraph].(4) A person is not to be treated as not in Great Britain if he is— (a) a worker for the purposes of Council Directive No. 2004/38/EC; (b) a self-employed person for the purposes of that Directive; (c) a person who retains a status referred to in sub-paragraph (a) or (b) pursuant to Article 7(3) of that Directive; (d) a person who is a family member of a person referred to in sub- paragraph (a), (b) or (c) within the meaning of Article 2 of that Directive; (e) –(k) [not material]“ Accordingly, it is to the relevant provisions of EU law and the UK regulations implementing it that we must turn. The Treaty on the Functioning of the European Union[14]Article 20 (ex Article 17 TEC) provides:
“1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: (a) the right to move and reside freely within the territory of the Member States; (b) –(d) [not material] These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.”
[15]Article 21 (ex Article 18 TEC) provides: “1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.” …[16]Article 45 (ex Article 39 TEC) provides:
“1. Freedom of movement for workers shall be secured within the Union. 2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission. ….”
Directive 2004/38 (“the Directive”)[17]Article 3 (1) defines the scope of the Directive: “1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.“[18]Article 2(1) defines “Union citizen” as “any person having the nationality of a Member State. Article 2(2)(d) defines “family member” so as to include “the dependent direct relatives in the ascending line and those of the spouse… .”[19]Article 7(1) provides:
“1.

(c) ”

Immigration (European Economic Area) Regulations 2006[20]The 2006 Regulations seek to implement the Directive. While I need not set them out at length, it is however necessary to set out regulation 9, which implements the decision of the CJEU in C-370/90 Surinder Singh [1992] ECR I-4265 and which at the date of the decision under appeal provided:
“9.— Family members of United Kingdom nationals (1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national. (2) The conditions are that— (a) the United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and (b) if the family member of the British citizen is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the British citizen returned to the United Kingdom. (3) [not material]”
Ground (1): Mr H a ”worker” and appellant has rights via regulation 9 as a family member[21]The appellant faces several obstacles. She has to establish that Mr H was “residing” in Greece or Germany as the case may be when he was only there for sometimes two, sometimes four, weeks. She has to establish that he was doing so “as a worker or self-employed person”. She faces further difficulties under EU law, but it is possible that regulation 9 may mean that she would not, as a matter of domestic law, encounter those further difficulties, though the first two obstacles remain relevant.[22]Regulation 9 brings into play the remainder of the 2006 Regulations as if the United Kingdom national were an EEA national “in relation to a person who is the family member of the UK national” and by the time regulation 9 fell to be applied in this case the appellant was indeed the family member of the UK national. Accordingly, the requirements of paragraph (1) are met. I do not accept Mr Lewis' submission that that would be to apply the regulation with retrospective effect, impermissible in the absence of express words. The regulation speaks and confers rights in the present and makes no distinction as to when the conditions for those rights to apply needed to be fulfilled. I derive little assistance in the present context from Tsavdaris v Home Office [2014] EWHC 440 (QB) where Lang J’s remarks at [34] were concerning the non-retrospectivity of the operation of the Directive (not a domestic regulation implementing other EU law than the Directive) and were made in the context of an argument that a deportation decision and notice to deport, lawful under the 2000 predecessor regulations to the 2006 Regulations but which could not have been made under the latter, had effectively become unlawful once the later came into force and were, therefore, about legislation affecting pre-existing rights and obligations.[23]Turning to paragraph (2), if Mr H was indeed “residing in an EEA State as a worker” when in Greece or Germany, before returning to the United Kingdom, the requirements of sub-paragraph (2)(a) would be met. Sub-paragraph (2)(b) imposes a condition which relates only to a spouse or civil partner of the British citizen. Given that the regulation contemplates its application to family members, a term which as well as spouses and civil partners extends to, inter alios, direct descendants of the British citizen, his spouse or his civil partner who are under 21 or dependants of his, his spouse or his civil partner and dependent direct relatives in his ascending line or that of his spouse or his civil partner, it is perhaps surprising that sub-paragraph (2)(b)is couched in the limited terms which it is: but that is nonetheless so. If the regulation can be relied upon, the consequence would be that a hypothetical EEA national who is self-employed in the UK would have rights under reg 14 of the 2006 Regulations. His family members (irrespective of nationality) would have rights thereunder to accompany him. Applying the deeming provision created by reg 9(1), although the regulation, like the remainder of the 2006 Regulations, does not need to apply to the British citizen himself (because, as against the UK, he can rely on his own citizenship), a family member falling within regulation 9 would be entitled to reside with him.[24]It is necessary first to look at the position under EU law, for purposes including assisting in the interpretation of the domestic legislation. The basic principle is that ”where an Act is passed to give effect to Community law, terms used in the Act must be construed in accordance with that law” (see Bennion on Statutory Interpretation , 6 th edition, at p1156). I see no reason why the same principle should not apply to delegated legislation. Consequently, while the 2006 Regulations do not expressly say so (as they do, in reg 4, for “worker”), it is the EU law meaning which must be given to the word “reside”.[25]The CJEU took the opportunity in O and B to set out the principles governing claims by third-country nationals based on being family members of an EU national who had exercised rights of freedom of movement and, in some cases, residence, when those claims were asserted not against a host Member State of the EU national but against his own Member State following his return to it. Decisions of the CJEU are in general declaratory of how the law must be taken to have been, subject to the Court’s ability to modify the effects of such a decision in exceptional cases: see e.g. C-184/99 Grzelczyk [2002] 1CMLR19; C-163/90 Legros and others ; C-35/97 Commission v France.[26]Article 21(1) TFEU and the Directive do not confer any autonomous right on third country nationals. Such rights as they may have are rights derived from the exercise of freedom of movement by a Union citizen: O and B at [36]. The appellant is German and thus an EU national, not a third country national. But the discussion in O and B is valuable for what it tells us more generally about the ability of a person to rely on a right which she derives through an EU national who is seeking to enforce EU rights against the Member State of which he is a national. The purpose and justification of the derived right of residence is that refusal to allow such a right would interfere with the Union citizen's freedom of movement by discouraging him from exercising his rights of entry into and residence in a host Member State: O and B at [45]. That was similarly the reason for the Court's decision in the earlier case of Surinder Singh, the original catalyst for what is now regulation 9, on which O and B now builds, effectively supplementing the explanation of the legal basis for the earlier decision. Such a right only arises where the residence of the Union citizen in the host Member State has been sufficiently genuine so as to enable the citizen to create or strengthen family life in that Member State : O and B at [51].[27]In the present case, the FtT “found that [Mr H] had not resided in either Greece or Germany in that neither State had become his permanent home for any period of time. [Mr H] agreed that at all times his place of residence remained in the UK.” One may, perhaps, take issue with the apparent reliance in the FtT’s reasons on the concept of the “permanent home”, but as, for the reasons below, I similarly do not consider that Mr H's brief periods in Germany and Greece amounted to “residence” at all, if the FtT might otherwise have been in error of law, any error was not a material one.[28]The appellant submits, for reasons to which I return below, that the phrase “residing in an EEA State as a worker” means no more than “being present in an EEA State as a worker within the meaning of article 45 TFEU and article 7(1)(a) of the Directive.”[29]The respondent submits that the significance of the word “reside” in regulation 9 is that it requires the decision-maker to make a judgement 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 that word. Simply asking whether the individual has been “present” in the EEA State, as submitted on behalf of the appellant, would not be a lawful test.[30]In O and B , Advocate-General Sharpston observed: “96 ....[W]hat does it mean to reside in another member state? .... 97 Directive 2004/38 sets out the conditions under which an EU citizen may reside in another member state without defining what “residence” means. Nor do the Treaties contain a general definition. Certain secondary law instruments define “residence” for the purpose of that particular legislation, referring to notions like “normal residence” or “habitual residence”. 98 ...[R]esidence is not a uniform concept in EU law. 99 ... 100 In Swaddling v Adjudication Officer (Case C-90/97) [1999] ECR I- 1075; [1999] All ER (EC) 217 , para 28, the court held that the definition of residence in article 1(h) of Regulation No 1408/71 meant “habitual residence” and suggested that it therefore had an EU-wide meaning. The court interpreted the phrase “the member state in which they reside” as being the place “where the habitual centre of their interests is to be found”, which should be determined taking into account “the employed person's family situation; the reasons which have led him to move; the length and continuity of his residence; the fact (where this is the case) that he is in stable employment; and his intention as it appears from all the circumstances”: Swaddling's case, para 29. In so saying, the court has indicated that a proper understanding of whether a person is resident or not must be based, not on a single factor, but on a collection of elements that together enable the individual's situation to be assessed and categorised as residence or non-residence. 101 In other areas of EU law, the court has articulated a similar understanding of residence: it is where a person has his habitual or usual centre of interests and it must be determined in light of the facts at issue, which include both objective and subjective elements. (See, for example, Di Paolo v Office national de l’emploi (Case 76/76) [1977] ECR 315 ; Knoch v Bundesanstalt für Arbeit (Case C-102/91) [1992] ECR I-4341 ; see also Advocate General Saggio's opinion in Swaddling's case, point 17; Rigsadvokaten v Ryborg (Case C-297/89) [1991] ECR I-1943 , paras 24 and 25, and Louloudakis v Dimosio (Case C-262/99) [2001] ECR I-5547 , para 55.) 102 I do not think that residence requires constant physical presence in the territory of a single member state ... . It might reasonably, however, require a preponderance of presence. 103 Nor do I think that whether an EU citizen has taken up residence in another member state turns on whether that is his sole place of residence. In many cases, exercise of the right to reside freely in the European Union will involve moving residence from one member state to another, without keeping any meaningful connection with the former place of residence. In other cases, however, it will be expedient for various reasons to maintain significant ties. 104 Provided that EU citizens satisfy the test for establishing residence in a member state, it should not matter that they might keep some form of residence elsewhere. There is no general rule of EU law whereby residence in one member state precludes concurrent residence in another member state. That appears to be implied also by the provisions of Directive 2004/38 which make residence of longer than three months dependent on the condition that an EU citizen either is a worker or a self- employed person or has sufficient resources available in order to avoid becoming a burden on the social assistance system of the host member state. By contrast, full solidarity (when the “sufficient resources” condition no longer applies) must be shown to permanent residents: see article 16(1) .“[31]In O and B the Court does not state, certainly not in terms, that the relevant test was one of habitual residence and it is perhaps not wholly clear whether or to what extent the Court was intending to adopt the above portion of the Advocate-General’s opinion. There are however a number of references in the judgment that suggest that the Court’s concern was, if not with habitual residence, with a concept of residence which went beyond mere physical presence. Thus at para 39, it refers to that provision which the Directive does make for derived rights as applying where a citizen has exercised his right of freedom of movement ”by becoming established” in a Member State other than that of which he is a national. The Court’s concern was with residence in the host Member State that was “ sufficiently genuine as to enable that citizen to create or strengthen family life in that Member State” (para 51, emphasis added) which in my view expressly acknowledges a need for a qualitative element, going beyond mere presence. For that reason too, the (necessarily short-term) exercise of rights under article 6 of the Directive is considered insufficient (para 52) whereas residence under article 7 will provide “evidence of settling...and therefore of the Union citizen’s genuine residence in the host Member State” (para 53). At para 56, the Court reiterates its concern with “genuine residence”.[32]It is not necessary to go as far as to adopt a position based on “habitual residence” to conclude that the Court was concerned with something more than mere presence and thus Mr Macdonald’s submission on behalf of the appellant faces something of an uphill struggle on this point.[33]The appellant’s principal argument is that because reg 9 implements the principle in Surinder Singh and certain passages in that case create an apparently minimal criterion for what constitutes “residence”, it is that minimal criterion that must be the meaning for the purposes of reg 9. She relies in particular on para 25 of Surinder Singh , where reference is made to the requirement for a Member State to grant leave “to enter and reside in its territory to the spouse …of a national of that State who has gone… to another Member State in order to work there as an employed person”. The respondent can and does point to other passages in the case which are less minimal in their approach but in my view it is in any event far more to the point that O and B has substantially supplemented our understanding of what is involved. What O and B has told us about derivative rights must be taken as having been the position in EU law in 2006 when the 2006 Regulations were made and at the date of the decision under appeal in the present case.[34]A statutory instrument, like a statute, is presumed to be continuously speaking and it falls to be construed in accordance with the need to treat it as current law.[35]C-291/05 Eind , like Singh , involved a factual situation where the person who was the source of the rights had been working for a period of time (18 months in Eind , rather more in Singh ) which, seen through the perspective now provided by O and B would be sufficient at any rate to provide evidence of genuine residence ( O and B , para 53). What constituted “residence” was accordingly not in issue in those cases and it would be wrong to elevate a description of the factual situation in the cases to a statement of legal principle.[36]For the reasons given in [31], I consider that para 53 of O and B helps the respondent rather than the appellant.[37]Nor do I consider that the appellant can derive any advantage from the amendments made with effect from 1 January 2014 by the Immigration (European Economic Area) (Amendment) (No.2) Regulations 2013/3032, introducing a further test, to be examined by reference to a non-exclusive list of factors, that “the centre of [the British citizen’s] life has transferred to the EEA State where [the British citizen] resided as a worker or self-employed person.” I make no comment on this test, which will doubtless fall to be examined in a case to which it is directly relevant, other than that (assuming it to be valid) it merely creates an additional hurdle. It does not undermine what can be derived from the Court’s decision in O and B.[38]The appellant then relies on a second group of arguments based on the history of the Directive. I do not accept the premise of the argument. As the Advocate-General noted, quoted above, “Residence is not a uniform concept in EU law.” Regulation 9 deals with a limited, specific matter and insofar as it involves what is meant by to “reside” is concerned only with the quality of the residence on the part of a worker (etc.) required to attract a derivative right for his family members. The best guide to that, in my view, is to be found in how the CJEU tackles its meaning, in that specific context, in O and B . What it may mean in other contexts, including in relation to the Directive, is not the matter before me.[39]For the same reason, I do not consider that the appellant’s third group of arguments help. I am not to be taken as suggesting that in relation to provisions of the Directive such as articles 6, 7, 16 and 17 the right to reside goes beyond the sense of presence. It is eloquently put on her behalf that: There is nothing in any of the case law known to the appellant which suggests that the Directive only confers a right to remain when the worker meets some additional (unspecified) test. Nor is there any suggestion in the Directive itself that some additional requirement exists. It is not, for instance, a right-to-remain-on-the-proviso-that-one- has-a-home (however defined) in the host country. Nor is it a right to remain on the basis that one has transferred the habitual centre of one’s interests to that State.” I merely reiterate that I am concerned only with regulation 9 and with the conceptual basis for that specific provision under EU law as it is now known to be.[40]I therefore proceed on the basis that (adopting the view of O and B that is the more favourable to the appellant) I am to apply a test based on residence and not on habitual residence. From the various references cited at [31] above, ”residence” in the specific context with which I am concerned does not bear the meaning of mere presence (in the relevant capacity). I agree accordingly with Mr Lewis that what is required of the decision-maker is to make a judgement 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.[41]Applying that to the facts of the present case, little is known about Mr H's personal circumstances at the time of his travels, though we do know he was not then married to Mrs H and there is no indication that he was accompanied by her and/or by the appellant. That is therefore not a factor in favour of residence in Greece or Germany having been established, although if it were the case that Mr H was single at the time and could go where he pleased, the factor may be neutral. 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 that 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. The time he spent there was short. He was not in established stable employment but rather there via a short-term arrangement. He was clearly in a position to return shortly afterwards to the UK to resume his previous life and did so. 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. The FtT was undoubtedly entitled to conclude that Mr H had not “resided” for the purposes with which it was concerned in either Greece or Germany.[42]The appeal accordingly fails on that ground. Lest my view on the point be incorrect, I turn to the question of whether Mr H was a “worker” while in Greece and/or Germany. It will be recalled that this is the second question which is relevant both to the EU position and (via reg 4 of the 2006 Regulations) to the position under domestic law.[43]The basic principles are clear: their application to atypical arrangements much less so. While I have not ignored the other examples cited to me, it suffices here to set out the convenient statement of the relevant principles in C-456/02 Trojani at [15]-[17]: “15. As the Court has held, the concept of ‘worker’ within the meaning of Article 39 EC has a specific Community meaning and must not be interpreted narrowly. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is, according to that case-law, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (see, in particular, Case 66/85 Lawrie-Blum [1986] ECR 2121 , paragraphs 16 and 17, and Case C-138/02 Collins [2004] ECR I-0000, paragraph 26).16. Moreover, neither the sui generis nature of the employment relationship under national law, nor the level of productivity of the person concerned, the origin of the funds from which the remuneration is paid or the limited amount of the remuneration can have any consequence in regard to whether or not the person is a worker for the purposes of Community law (see Case 53/81 Levin [1982] ECR 1035 , paragraph 16; Case 344/87 Bettray [1989] ECR 1621 , paragraphs 15 and 16; and Case C-188/00 Kurz [2002] ECR I-10691 , paragraph 32).17. With respect more particularly to establishing whether the condition of the pursuit of real and genuine activity for remuneration is satisfied, the national court must base its examination on objective criteria and make an overall assessment of all the circumstances of the case relating to the nature both of the activities concerned and of the employment relationship at issue (see Case C-413/01Ninni-Orasche [2003] ECR I-13187 , paragraph 27). “[44]It is clear from the evidence, in particular that of the printout from the Association referred to in [7] above that the activities Mr H carried out as a skilled plumber helping on construction work were real and genuine although it would be hard to see the terms on which they were performed (if that be relevant) as part of the normal labour market (cf. Trojani at [24]). Plumbers do not usually work on the basis only that they are not out of pocket. I do not rely on this as a basis for finding against the appellant on this point. Nor has it been suggested that any work was “marginal and ancillary” rather than “genuine and effective”. The principal area of difficulty, to which I now turn, is around the requirement that what is involved is the performance of services in return for remuneration.[45]In C-196/87 Steymann the Court was concerned with the activities of Mr Steymann as a member of a Bhagwan community. He had been a relatively l ong term resident, since before 28 August 1984 (judgment was given in 1988). He was expected to perform certain duties and the Bhagwan community provided him with board, lodging and pocket money. The Court held at [12] that:
“ in so far as the work …constitutes an essential part of participation in [the] community, the services which the latter provides to its members may be regarded as being an indirect quid pro quo for their work.”
[46]The Court addressed a question posed regarding the possible relevance of the philosophical nature of the community by saying (at [14]) :
“Accordingly, the answer given to the first question must be that Article 2 of the EEC Treaty must be interpreted as meaning that activities performed by members of a community based on religion or another form of philosophy as part of the commercial activities of that community constitute economic activities in so far as the services which the community provides to its members may be regarded as the indirect quid pro quo for genuine and effective work.”
It is not entirely clear to what extent the Court was intending to place weight on the fact that it was specifically the commercial activities of the Bhagwan community with which Mr Steymann was engaged. Mr Lewis does not invite me to make that distinction and I do not do so.[47]It is not an obstacle to being found to be a worker that what was otherwise a conventional working arrangement, under which he was paid “a not insignificant sum as remuneration” and was subject to “deductions from his pay on the same basis as if he were any other employee”, subsisted only for a short period of time : see Barry v LB Southwark [2008] EWCA Civ 1440 at [23], the case of a steward during Wimbledon fortnight.[48]I do not derive any assistance from EU law on equal pay. That is a very different context, and one moreover where a broad approach to pay is particularly needed in order to address the issue concerned. In my view it is not is not in my view appropriate to read across from it to the different context of freedom of movement. 48. As enjoined by Ninni-Orasche , quoted at [43] above, one has to make an overall assessment of all the circumstances of the case relating to the nature both of the activities concerned and of the employment relationship at issue. It is in my view, as Mr Lewis suggests, a question of fact and degree. While I note that in both Trojani and Steymann where the Court held, or at least contemplated, that the individual might be a “worker”, he received what was described as “pocket-money”, I did not agree with Mr Lewis's initial position in argument that there must be an element of money as part of the remuneration which the person can spend at will. It is possible to think of a number of examples where people perform duties in return for the opportunity to live rent-free or other benefits in kind, at least some of which might give rise to a person properly being regarded as a “worker”, and Mr Lewis subsequently modified his position to suggest that the arrangement must be more than a “zero-sum” arrangement so far as the person performing the duties was concerned i.e. so that in one way or another, it left him better off in monetary terms. I agree 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). It is consistent with such an analysis that the Association was responsible for making sure Mr H was put in a position through board and lodging and reimbursement of travel and other expenses that he could carry out the tasks for the short periods concerned and not be out of pocket to any significant extent as a result. It is not uncommon for charitable or voluntary organisations, for instance, to provide those who volunteer with them with a travelcard, or with the means to have lunch while on duty, and in my view the arrangements in this case achieve a similar purpose. Further, while I accept that what was otherwise clearly an employment arrangement would not cease to be one merely because of its short duration, it seems to me that the brevity of the arrangement may again be indicative that what is involved is not an arrangement of employment but rather one of an individual devoting some of his spare time to a cause to which he was committed. That that is what happened here is to a degree strengthened by the content of the records referred to at [7]. To the extent that it is necessary to decide the point, I would conclude therefore that Mr H's arrangements with the Association were not such as to make him a “worker”.[49]Such a view is clearly consistent with the way Mr H saw himself, for his evidence to the FtT referred to his having been a “volunteer”: while I do not regard that as determinative of what is a question of applying legal principles to the facts, comparing his own view does serve the function of something of a “reality check.”[50]The FtT reached a similar conclusion though with little consideration of the authorities or other reasoning in support. If the lack of transparency of reasoning on the point might otherwise have amounted to an error of law, it was not one which was material.[51]For the purposes of EU law (though not, because of the terms of regulation 9, domestic law), I also note that in any event, there is no indication that when Mr H went to Greece and to Germany he was creating or strengthening his family life (as O and B makes clear is required) and in particular that the appellant had any sort of family life with him in either country. Indeed, it was almost 10 years after the last of Mr H's trips that he married the appellant's daughter.[52]It is also now apparent that the appeal would also be defeated in EU law by the short duration of Mr H's trips. Though of course the European legislative framework was different at the time of the appellant’s trips, in O and B a condition for the derivative right was that the Union citizen intended to exercise his rights under Article 7 (containing the conditions attaching to a right of residence for more than three months) and not those under Article 6 (the right, free from conditions, for the first three months). The reason for this is that the prospect of the latter shorter-term period without family was not considered by the Court to have the “chilling” effect on a person who might otherwise be minded to exercise their rights of freedom of movement on which this part of the jurisprudence is founded. The Court's position is consistent with that in Singh , where Mrs Singh returned from Germany, having worked there for two years or so.[53]These various considerations individually or together are further reasons why as a matter of EU law, the appellant would not have a right to reside derived from Mr H's previous activities in Germany and Greece. Ground (2): appellant herself has rights under article 7 of the Directive[54]The submission on behalf of the appellant is that she at all material times was the dependent family member in the ascending line of a Union Citizen who was working in the UK and that this, combined with her own movement between Member States, was sufficient for her to have a right to reside under article 7(1)(d) of the Directive (set out at [19] above).[55]In order to succeed, a person has to be a family member accompanying or joining a Union citizen who meets one of the other conditions of article 7(1). However, Mr H cannot fall within those provisions for many of the reasons given in C-434/09 McCarthy [2011] ECR I-3375 at [30] – [43]. The appellant's generalised appeals to the fundamental character of rights under articles 20 and 21 and the need to construe narrowly any limitations on them can be met with the argument that such principles were not such as to win the day in McCarthy , for, as was noted in O and B at [42] in relation to the teleological interpretation of the Directive, “the fact remains that the subject of the Directive concerns...the conditions governing the exercise of that right” [sc. of movement and residence].”[56]Admittedly Mr H's situation is not entirely on all fours with that of Ms McCarthy (in that Mr H had at least travelled to Greece and Germany for the purposes previously described and there is no indication that Ms McCarthy had in any way sought to exercise her right to move and reside freely within the territory of the Member States or indeed worked at all). I do not consider that these attempted distinctions help the appellant. She comes up against the fundamental problem of paragraph 34 of McCarthy that:
“Since, as stated in paragraph 29 of this judgment, the residence of a person residing in the Member State of which he is a national cannot be made subject to conditions, Directive 2004/38, concerning the conditions governing the exercise of the right to move and reside freely within the territory of the Member States, cannot apply to a Union citizen who enjoys an unconditional right of residence due to the fact that he resides in the Member State of which he is a national.”
[57]The appellant seeks to rely on C-127/08 Metock in two ways, but in my judgment neither can assist her. First, she relies on para 49 where the Court observed that “as regards family members of a Union citizen, no provision of Directive 2004/38 makes the application of the directive conditional on their having previously resided in a Member State.” However, the issue in Metock was whether it was lawful to require a spouse of a Union citizen residing in a Member State but not possessing its nationality to have previously been lawfully resident in another Member State before arriving in the host Member State. In other words, there was no dispute as to the ability of the Union citizen to assert the rights (on which those of his spouse depended) against the Member State of which he was not a national. It was whether it was permissible to put an additional condition on the ability of the spouse to benefit from the right, by requiring them to have previously been lawfully resident elsewhere in the EU, that was in issue. The principle does not enable the appellant to meet the point that her rights are entirely dependent on those of a person who, unlike those in Metock , was seeking to assert rights against the Member State of which he himself is a national.[58]The second point for which reliance is placed on Metock is for the principle in para 59 of the case that:
“The same interpretation must be adopted a fortiori with respect to Directive 2004/38, which amended Regulation No 1612/68 and repealed the earlier directives on freedom of movement for persons. As is apparent from recital 3 in the preamble to Directive 2004/38, it aims in particular to ‘strengthen the right of free movement and residence of all Union citizens’, so that Union citizens cannot derive less rights from that directive than from the instruments of secondary legislation which it amends or repeals.”
There is no question in the present case of a person in the appellant's position having fewer rights under the Directive than she had or would have had under the instruments which preceded it, thus the central point of this paragraph simply has no application. As regards the appeal to the stated aim to “strengthen the right of free movement and residence of all Union citizens”, it does not follow that merely because that is the aim of the Directive and, in a number of ways, its effect, one then has to go on to read into the Directive things which the European legislator has not seen fit to include, merely because they could be seen as fitting within a broadly-stated aim of the Directive.[59]Nor does it help the appellant to argue, as she does, that it is her own movement between Member States which is relevant, enabling her to assert rights as a German national against the United Kingdom. This was a further attempted point on which it was sought to distinguish McCarthy , but it is likewise misconceived. Her own rights to free movement under articles 20 and 21 are expressly made subject, by the terms of those articles, to limitations and conditions in measures adopted under, or to give effect to, the Treaties and it is those limitations and conditions that she has the misfortune to fall foul of. The appellant therefore qualifies, if at all, as the family member of a Union citizen. It is, accordingly, the ability of the person, whose family member she wants to be classed as, to assert rights under EU law which is relevant. For the reasons given, Mr H cannot do so under the Directive. O and B , Singh and Eind indicate that in defined circumstances there may be an ability to do so relying directly on the Treaty and this takes us to the alternative proposition on behalf of the appellant that there is an accidental lacuna for economically inactive migrants who are family members of UK nationals.[60]As Advocate General Sharpston remarked in O and B :
“38 Immigration law is, in principle, a matter of member state competence. Unless the situation is one in which a national of a member state (who, through his nationality, is also an EU citizen) has crossed a border with another member state or there is a real prospect of him doing so, EU rights of free movement and residence are not in principle triggered and national law alone applies .”
[61]As noted, McCarthy establishes, inter alia, that the Directive is intended only to govern the conditions of entry and residence of a Union citizen in a Member State other than the Member State of which he is a national: McCarthy at [33]; O and B at [42]. It follows that in many cases there will be no question of EU law applying. Where it does apply in relation to a Union citizen asserting rights against the Member State of which he is a national, however, it is accordingly on the basis of a lacuna in Directive 2004/38, which is why the derived right of residence in O and B is based on Article 21(1) TFEU. In the case of third country nationals, the lacuna arises because in their own right they are outside the scope of the Directive altogether (cf. O and B at [36]). In the case of rights asserted on a derived basis against a person's own Member State, it is because that is not what the Directive has been held to cover. O and B, building on Singh and C-291/05 Eind , explains the rationale for the derived right which fills the lacuna and sets out the conditions attaching to it. As already noted, the appellant does not fall within those conditions. There is no basis on which the Upper Tribunal can properly go further in identifying, or seeking to fill, a lacuna than the CJEU did, in a judgment given less than 12 months ago on a case which raised (albeit in a slightly different factual context) essentially the same principles.[62]The appellant submits that following cases such as Brey it is no longer necessary for the appellant to point to a lacuna. I accept that limitations on the right to free movement have to be applied proportionately (as in C-413/99 Baumbast ), but it remains the case that where the European legislator and/or Court of Justice have set out the conditions applicable to a particular right, it may become a lot harder to make out a case based on proportionality than where a situation arises which appears never to have been addressed. The consequence of O and B is that as regards a derived right the appellant is in effect arguing that there is a lacuna in the lacuna: but as has already been seen, she falls short of the conditions in O and B in several respects and to a significant degree. Insofar as she seeks to run a proportionality argument in relation to her own rights, she seeks to undermine the graded system of rights in articles 6, 7 and 16 of the Directive, notably the conditions attaching to rights under article 7 and the provision made by the Directive for family members to have rights only as a consequence of the rights to which others are entitled: in short, to take the benefit of the rights in articles 20 and 21 of the Treaty without the limitations. This would not be a “near-miss” case, as in Baumbast , but a large scale tearing-up of the relevant limitations. While I acknowledge that the appellant is an elderly lady in a state of some financial dependency who perfectly understandably would prefer to be near her family, that is not an unusual situation and it is not one for which the legislator has seen fit to provide. It is not appropriate for the Upper Tribunal to use the principle of proportionality to draw that line elsewhere given the yardstick provided by the legislation. The FtT reached a similar conclusion and was entirely right to do so.[63]This part of the appellant’s case contained passing references to a number of articles of the Charter of Fundamental Rights of the European Union . They were never fully developed (in particular, they did not address how the Charter was said to be engaged or, where relevant, the effect of the 7 th /30 th Protocol) and were not relied upon at the oral hearing to any significant degree. I do not consider that they alter the foregoing analysis. Nor do I accept that there is any material ambiguity within the Directive which ought to be resolved in accordance with article 8 of the European Convention on Human Rights. Ground (3): Application of the right to reside test following Brey[64]In my view Brey does not assist the appellant. She has never had a right to reside under EU law on any basis. As I indicated in VP v Secretary of State for Work and Pensions [2014] UKUT 0032 (AAC), cases such as Brey and Grzelczyk are concerned with what a Member State's duties might be to someone who originally had a right to reside but where there has been a supervening event, which is not the situation here. Consequently the UK is entitled to apply the right to reside test in the State Pension Credit Regulations to this appellant in accordance with its terms.[65]The appellant’s argument based on Advocate-General Wahl’s Opinion inC-507/12 Saint Prix falls away in the light of the subsequent judgment of the Court in that case, which was based specifically on worker status rather than on the wider considerations of proportionality for which she draws upon the Opinion.[66]As a matter of domestic law I am bound to reject the further argument based on discrimination contrary to article 4 of regulation 883/2004. The same argument was considered in relation to the predecessor legislation, and rejected, by the Supreme Court in Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11 , by which decision I am bound.[67]Moreover, in the recent case of C-333/13 Dano v Jobcenter Leipzig (judgment given 11 November 2014) the Court held at [83] that:
“The same conclusion must be reached in respect of the interpretation of Article 4 of Regulation No 883/2004. The benefits at issue in the main proceedings, which constitute ‘special non-contributory cash benefits’ within the meaning of Article 70(2) of the regulation, are, under Article 70(4), to be provided exclusively in the Member State in which the persons concerned reside, in accordance with its legislation. It follows that there is nothing to prevent the grant of such benefits to Union citizens who are not economically active from being made subject to the requirement that those citizens fulfil the conditions for obtaining a right of residence under Directive 2004/38 in the host Member State (see, to this effect, judgment in Brey , paragraph 44).”
As this case is in this regard merely confirmatory of what I would have held the position to be in any event, I have not seen fit to invite further submissions on it.[68]Consequently, despite the resourceful arguments put forward on the appellant's behalf, the appeal fails.[69]Finally, I record that an application was made to me on behalf of the appellant at the hearing to recuse myself and was rejected. The situation arose because at the time of the hearing a family member of mine was living in a community in another Member State where she performed duties and received board and lodging but was not paid. That was a matter which I considered it appropriate to disclose to the parties as a decision on the worker status of people with such arrangements might have applied to my relative also. The application was made not on the basis of those facts, but because of the terms in which a registrar had emailed the parties, using a draft I had provided, outlining this issue, which it was submitted indicated (by virtue of the reference in the email to my family member “receiving board and lodging but no remuneration” that I had reached a predetermined view that such arrangements did not give rise to “worker” status. The application was refused on the basis that the email was, and would be taken by a reasonable bystander to be, nothing more than a means of informing the parties of the factual situation which had arisen and not as indicating a predetermined view on the question of law. CG Ward Judge of the Upper Tribunal 31 December 2014

Cited in 1 later judgment