Commissioner's File: CIS 472/94
Mr Commissioner Mesher
4 May 1995
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
Claim for: Income Support
Appeal Tribunal: Walthamstow SSAT
1. The claimant's appeal is allowed. The decision of the Walthamstow social security appeal tribunal dated 13 June 1994 is erroneous in point of law, for the reasons given below, and I set it aside. I am able to give the decision which the appeal tribunal should have given on the facts as it found them (Social Security Administration Act 1992, section 23(7)(a)(i)). That decision is set out in paragraph 2 below.
2. My decision is that the decision awarding the claimant income support from 11 June 1992 for an indefinite period does not fall to be reviewed and revised with effect from 8 December 1993 or from any date down to 13 June 1994. In the period from 8 December 1993 to 13 June 1994 the claimant's entitlement to income support is not precluded by the operation of paragraph (h) of the definition of "person from abroad" in regulation 21(3) of and paragraph 17(b) of Schedule 7 to the Income Support (General) Regulations 1987.
3. The claimant is a French national. That is shown by the copy of the passport issued to her on 22 February 1990, which also shows her then place of residence to have been Martinique. She has two children, born on 1 January 1990 and 27 April 1992. The claimant was born on 22 March 1968. She came to the United Kingdom with her then partner at some time after the birth of her first child and they lived together here. The relationship broke down and the claimant claimed income support on 11 June 1992 when she was living alone with her two children. The adjudication officer on 20 July 1992 awarded her income support from 11 June 1992. Entitlement continued through a change of address.
4. On 8 December 1993 the following letter was sent to the claimant from the Immigration and Nationality Department of the Home Office:
"It has come to the notice of this Department that you have claimed Income Support since 11.6.92 and that you are still continuing to claim.
I should like to explain that as a European Community national you are free to enter and reside in the United Kingdom in order to exercise Treaty rights conferred by the Treaty of Rome. These include the right to seek or take employment, or to reside here in a non-economic capacity provided that you have enough resources to avoid being a burden on public funds.
However, in view of the fact that you are in the United Kingdom in a non-economic capacity and that you have become a burden on public funds, the Secretary of State is not satisfied that you are lawfully resident here under EC law and you should now make arrangements to leave the United Kingdom."
An application for judicial review of the Secretary of State's decision was made.
5. On 16 December 1993 the adjudication officer made a decision that the claimant was not entitled to income support from 8 December 1993 and did not satisfy the provisions of regulation 70 (urgent cases) of the Income Support (General) Regulations 1987 ("the Income Support Regulations"). An appeal against that decision was made on the claimant's behalf. The adjudication officer's written submission to the appeal tribunal on form AT2 asserted that the claimant was a "person from abroad" within paragraph (h) of the definition in regulation 21(3) of the Income Support Regulations because the Secretary of State had required her to leave the United Kingdom. It was also submitted that the claimant did not fall within regulation 70(3)(c) of the Income Support Regulations, because an application for judicial review was not an appeal under Part II of the Immigration Act 1971, and therefore did not qualify for payment as an urgent case.
6. The relevant part of regulation 21(3) provides:
"(3) In Schedule 7--
`Person from abroad' means a person, who--
(h) is a national of a Member State and is required by the Secretary of State to leave the United Kingdom;"
Under paragraph 17 of Schedule 7 to the Income Support Regulations a person from abroad who is a lone parent has an applicable amount of nil. Regulation 70(3)(c) provides:
"(3) This paragraph applies to a person from abroad within the meaning of regulation 21(3) (special cases) who--
(c) is awaiting the outcome of an appeal made under Part II of the [Immigration Act 1971] (including any period for which the appeal is treated as pending under section 33(4) of that Act);"
The appeal tribunal's decision
7. The claimant attended the hearing before the appeal tribunal on 13 June 1994 and was represented by Mr Leon Daniel of counsel. According to the chairman's note of evidence, the thrust of the argument put forward by Mr Daniel was that the letter of 8 December 1993 did not require the claimant to leave the United Kingdom.
8. The appeal tribunal decided against the claimant and confirmed the adjudication officer's decision that the claimant was not entitled to income support from 8 December 1993. Its findings of fact were recorded as follows:
"The appellant arrived in the United Kingdom in September 1990. She lives with her two children in council accommodation. She had been in receipt of income support since 11 June 1992. On 8 December 1993 the Home Office wrote to her that they were `not satisfied that you are lawfully resident here under EC law and you should now make arrangements to leave the United Kingdom'."
Its reasons for decision were recorded as follows:
"The Tribunal considered that the words used in the letter of 8 December 1993 were such that she was being `required to leave the United Kingdom' in the normal interpretation of the words. Therefore as the appellant was a national of a member state (EC national) she came within regulation 21(3)(h) General Regulations.
Regulation 70 General Regulations did not apply."
9. The appeal tribunal chairman orally granted the claimant leave to appeal to the Commissioners after the decision was announced and recorded that grant of leave on the form AT3.
The appeal to the Commissioner
10. An oral hearing of the appeal was held on 11 April 1995. The claimant was again represented by Mr Daniel. The adjudication officer was represented by Miss Geraldine Clark of counsel and Mr Lewis Varley of the Office of the Solicitor to the Department of Social Security. I am especially grateful to all the representatives for their assistance in a difficult area.
11. In a written submission Mr Daniel had raised, in addition to the argument put to the appeal tribunal, arguments that paragraph (h) of the definition of "person from abroad" in regulation 21(3) of the Income Support Regulations was incompatible with European Community law in the light of Article 8A(1) of the Treaty on European Unity (which came into force on 1 November 1993) and that the denial of benefit while the outcome of a challenge to the Secretary of State's decision by way of judicial review was awaited was unlawful unequal treatment. In a judgment given on 16 March 1995 in the cases of R v Secretary of State for the Home Department, ex parte Vitale and R v Secretary of State for the Home Department, ex parte Do Amaral (concerning letters in similar form to that received by the claimant in this case), Judge J held that Article 8A did not create an unqualified right of every citizen of the European Union to reside in any Member State as and when they might wish. The limitations on the rights of free movement granted by Article 48 of the Treaty of Rome approved by the European Court of Justice ("ECJ") in R v Immigration Appeal Tribunal, ex parte Antonissen  ECR I-745 remained effective. The Court's ruling in that case was that:
"It is not contrary to the provisions of Community law governing the free movement of workers for the legislation of a Member State to provide that a national of another Member State who entered the first State in order to seek employment may be required to leave the territory of that State (subject to appeal) if he has not found employment there after six months, unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged."
Accordingly, the applicants were not lawfully present in the United Kingdom after receipt of the letters. I was informed that an appeal against Judge J's decision is to be taken to the Court of Appeal.
12. On the basis that the decision in Vitale and Do Amaral is binding on me, Mr Daniel and Miss Clarke agreed that it would be sensible for any necessary decision in the present case on the effect of Article 8A of the Treaty on European Union or of the Community rights of free movement on the Income Support Regulations to be deferred until a further ruling had been obtained from the Court of Appeal. I agreed to that suggestion and also that I should defer any necessary decision on the third ground of appeal (unequal treatment) put forward on the claimant's behalf. Accordingly, the hearing proceeded on the basis that I would determine the proper effect of the Income Support Regulations, considered purely as a matter of domestic law, in the claimant's case. If my determination were to be that those provisions did not exclude the claimant from entitlement to income support, that would finally dispose of the appeal. If my determination were to be to the opposite effect, I would give an interim decision and defer consideration of the effect of Community law.
Paragraph (h) and deportation orders
13. Mr Daniel submitted that since paragraph (h) of the definition of "person from abroad" in regulation 21(3) of the Income Support Regulations was introduced with effect from 12 April 1993, it had to be linked to the conditions for requiring nationals of Member States to leave the United Kingdom which had been laid down in Antonissen. The other paragraphs of the definition referred specifically to provisions of the Immigration Act 1971. He submitted that the requirement to leave in Antonissen was taken from paragraph 143 of the current Statement of Changes in Immigration Rules (repeated in subsequent versions), made under the powers of section 3(2) of the Immigration Act 1971. The rules provided that nationals of Member States may be admitted as work-seekers and may remain in the United Kingdom for six months before applying for a residence permit. Paragraph 143 provided:
"A person may be required to leave the United Kingdom, subject to appeal, if he falls a charge on public funds before issue of a first residence permit, or if, after 6 months from admission, he fails to meet the requirements of paragraph 140(a) or (b) above [for the issue of a residence permit]."
Mr Daniel submitted that in the Immigration Act 1971 the term "required to leave" is given a specific meaning in section 5(1), which defines it in terms of a deportation order having been made under section 3(5) or 3(6). Thus a person could only be required to leave if a deportation order had been made against him, as the Secretary of State had in fact decided to do under section 3(5)(b) in Antonissen.
14. Mr Daniel referred to the Immigration (European Economic Area) Order 1994, article 15(2) of which allows the removal of a national of a European Economic Area state from the United Kingdom on ceasing to be a qualified person under article 6. He suggested that there would have been no point in making that Order if a national of a Member State could already be required to leave under other powers. Article 15(2) also provides for a right of appeal against a decision to remove a person as if the Secretary of State had decided to make a deportation order against the person. Mr Daniel pointed out that the Immigration Act 1971 only provided for a right of appeal in section 15 against a Secretary of State's decision to make a deportation order or a refusal to revoke a deportation order. He suggested that if that right of appeal was not available, there appeared to be no alternative provision for the appeal mentioned in paragraph 143 of the Statement of Changes in Immigration Rules, which must therefore have been restricted to deportation orders.
15. I do not accept this part of Mr Daniel's submissions. I do not consider that a person is "required to leave" the United Kingdom under paragraph (h) of the definition of "person from abroad" in regulation 21(3) of the Income Support Regulations only if subject to a deportation order. Section 5(1) of the Immigration Act 1971 provides:
"(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is force."
That provision defines what a deportation order is, in terms of both a requirement to leave and a prohibition on re-entry. It does not necessarily restrict a requirement to leave to a requirement under a deportation order. There certainly seem to me to be considerable difficulties in working out the circumstances in which there was any statutory basis for securing the removal of nationals of Member States before the coming into force on 20 July 1994 of the Immigration (European Economic Area) Order 1994. Miss Clark conceded that until the coming into force of that Order there was a lacuna in the law in that short of a deportation order there was no way to force a national of a Member State to leave the United Kingdom, and in cases like the present the making of a deportation order would infringe Community law. However, those difficulties are not directly my concern. I do not find the nature of the scheme of control of the residence in the United Kingdom of nationals of Member States or the co-ordination with the income support legislation to be such as to lead to the conclusion argued for by Mr Daniel. At the date of the introduction of paragraph (h) of the definition of "person from abroad", the United Kingdom had the power, without contravening Community law as declared in Antonissen, to legislate to require nationals of Member States to leave the United Kingdom under the conditions laid down in Antonissen. Whether or not our domestic immigration legislation had given effect to that power outside the existing provisions on deportation, in my view paragraph (h) is to be construed as applying whenever the Secretary of State has lawfully required a national of another Member State to leave the United Kingdom. Paragraph (c) of the definition already applied to a person subject to a deportation order.
The ordinary meaning of "required to leave"
16. That conclusion of course leaves for determination in the present case the question of whether the claimant had been lawfully "required to leave" the United Kingdom by the Secretary of State, in the ordinary meaning of those words in their context. On that point, Mr Daniel submitted that a person could not be said to be required to leave unless there was some legal obligation to do so. He said that since there was nothing which could be done to enforce the letter of 8 December 1993 against the claimant she could not be said to have been required to leave. He referred to a letter dated 28 September 1994 from the Immigration and Nationality Department of the Home Office to Walthamstow CAB in connection with another person (and annexed to his skeleton argument). The letter contains the following passage:
"Thank you for your letter of 24/8/94 in which you state that you wish to appeal against our decision, notified on 15/7/94, to consider your client as not being lawfully resident in the United Kingdom.
I must advise you that although we have advised your client that she should leave this country, this cannot be considered as a `requirement' to leave since we have no intention of enforcing her departure. As a result, no right of appeal is accorded in cases such as this."
17. Miss Clark submitted that the words "required to leave" were simple and should be given their ordinary meaning. The letter of 8 December 1993 at the least contained a request to leave by a person in authority based on a statement of what the claimant ought to do to comply with the law. That, she said, was sufficient to come within the ordinary meaning of "required to leave". She accepted, however, that the question was one of impression and that there could legitimately be reliance on the principle that a provision excepting a person from a prima facie entitlement to benefit should be construed strictly. Miss Clark also referred to the approach adopted by Judge J in Vitale and Do Amaral. He held that the letters in that case, which contained requests phrased identically to those in the present case, were properly founded on the principles accepted by the ECJ in Antonissen. Miss Clark relied on Judge J's clear conclusion that those letters had the effect that the applicants were not lawfully present in the United Kingdom and therefore were not entitled to income support by reason of the effect of paragraph (h) of the definition of "person from abroad".
18. In answer to that last point, Mr Daniel, who had appeared as junior counsel in Do Amaral, submitted that the principal submissions in Vitale and Do Amaral were on Article 8A of the Treaty on European Union and that the meaning of the Income Support Regulations was not subjected to any detailed analysis. He argued that Judge J's views on the latter were not part of the ratio of the decision.
19. My conclusion is against Miss Clark's submissions. I first consider the interpretation of regulation 21(3) of the Income Support as if the judgment in Vitale and Do Amaral had not been given. The precise words of paragraph (h) of the definition of "person from abroad" must be looked at. They do not make the test whether a person is not lawfully resident in the United Kingdom or has been informed that in the Secretary of State's opinion she is not lawfully resident. The test is whether the person "is required to leave the United Kingdom" and is required to do so by the Secretary of State. The focus must therefore be on what is done by or on behalf of the Secretary of State. The context of paragraph (h) within the Income Support Regulations must be looked at. The other paragraphs of the definition (which I shall not set out) in the main describe clear-cut circumstances where defined action has been taken in relation to a person under the Immigration Act 1971. I also take into account that the effect of a person from abroad having an applicable amount of nil is to exclude someone who would otherwise be entitled to income support from entitlement. I take from those two factors the desirability of paragraph (h) being construed in a way which enables the circumstances in which it applies to be easily identified by all concerned. That leads one, if there is ambiguity in the words of the paragraph, towards a certain central meaning rather than towards an uncertain expanded or loose meaning. I have left out of account the letter dated 28 September 1994 from the Immigration and Nationality Department, on which Mr Daniel relied. That letter merely expresses an opinion on the very question of law before me.
20. I note that the first non-obsolete meaning of "require" given in the third edition of the Oxford Shorter English Dictionary is "to demand (of any one) to do something". The second meaning given is "to ask for (some thing or person) authoritatively or imperatively, or as a right; to demand, claim, insist on having". Without attempting to give any comprehensive or exhaustive definition of the words "is required to leave" in paragraph (h), in my view their ordinary everyday meaning carries with it notions of compulsion or insistence such that the terms of the letter of 8 December 1993 did not "require" the claimant to leave the United Kingdom. That approach is consistent with the identification of a certain central meaning. I accept that in some contexts "require" may mean little more than "ask", but I am quite satisfied that that expanded and loose meaning is not tenable in the context of paragraph (h). The letter of 8 December 1993 drew attention to the Secretary of State's not being satisfied that the claimant was lawfully resident in the United Kingdom. It may of course be said that a person who is not lawfully resident in the United Kingdom is under a legal obligation to leave, but the statement of the Secretary of State's view added nothing to any such obligation which already existed by operation of law. Then the letter said that the claimant should now make arrangements to leave the United Kingdom. In my view, that form of words simply falls short of the necessary degree of insistence or compulsion for it to be possible to say that on receipt of the letter the claimant was required to leave the United Kingdom. I would characterise the form of words as advice to the claimant to make her own arrangements to leave. That seems to me to fall well short of a requirement actually to leave.
21. Does what Judge J said in Vitale and Do Amaral prevent me from reaching that conclusion? In some respects, his judgment provides powerful support. He refers to the form of words used as "advice" (page 11 of the transcript), a "request" to leave (page 27), and as asking or requiring the applicants to make arrangements to leave (page 27). Not once does he refer to the applicants in those cases as being required to leave the United Kingdom, as opposed to being asked or required to make arrangements to leave. However, Judge J expressed his conclusion on part of the argument on page 27 as follows:
"Under regulation 21(3)(h) of the Income Support Regulations 1987 the rate of support payable to a national of a Member State of the European Union who is `required by the Secretary of State to leave the United Kingdom' will be `nil'. Without trespassing into areas which have yet to be decided by the Social Security Appeal Tribunal it is clear that the regulations are designed to avoid payment of income support to a Community national who is not lawfully present in the UK. The amendments brought into force from 1st August 1994 are not relevant. The proper operation of the 1987 Income Support Regulations depended on notification by the Secretary of State in an appropriate case that the particular individual was not entitled to remain in the United Kingdom. Therefore, these letters were not ultra vires the Secretary of State neither did they, nor did the 1987 regulations, fall outside the provisions of Community law, nor were they a `sham'."
22. That passage certainly assumes (at the least) that the operation of paragraph (h) is triggered without more by notification to a person by the Secretary of State that the person is not entitled to remain in the United Kingdom. Similar assumptions are expressed at other points in the judgment. However, it must be borne in mind that the applications for judicial review were against the decisions of the Secretary of State about continued residence embodied in the letters to the applicants. The submissions, as described on page 10 of the transcript, were directed to the lawfulness or otherwise of those decisions. The effect on income support entitlement, as the Income Support Regulations were in fact being operated by the authorities, was part of the background to the importance of those decisions to the applicants. Judge J also held that in their appeals against adverse income support decisions the applicants could dispute that they were not lawfully resident in the United Kingdom and all the evidence and all domestic and European law would be considered in those appeals. In that sense, the decisions on paragraph (h) rested on the basis of the applicants being found not to be lawfully present in the United Kingdom, in that, if it were determined on a fresh investigation of the evidence and the law that the applicants were lawfully present, paragraph (h) could not apply. However, especially in view of the care taken by Judge J not to trespass on areas to be decided by social security appeal tribunals in the cases before him, I am satisfied that only that last point about paragraph (h) was a necessary part of his decision and binding on me. In so far as Judge J expressed assumptions about the circumstances which would trigger paragraph (h), I am satisfied that those assumptions were not a necessary part of his decision and were not based on detailed submissions such as those from which I have benefited. Therefore I conclude that the decision in Vitale and Do Amaral does not preclude me from reaching the conclusion expressed in paragraph 19 above.
The decision on the appeal
23. I must now relate my conclusions of law to the appeal tribunal's decision in the present case. In view of my conclusions of law, I find that the appeal tribunal erred in law in holding that the claimant was being required to leave the United Kingdom so as to fall within paragraph (h) of the definition of "person from abroad" in regulation 21(3) of the Income Support Regulations. No reasonable appeal tribunal properly instructed as to the law could have reached that conclusion. In addition, neither the appeal tribunal's decision nor the adjudication officer's decision under appeal identified a ground of review of the award of income support to the claimant from 11 June 1992 for an indefinite period. Although there would have been no difficulty, on the view of the case taken by the adjudication officer and the appeal tribunal, in relying on the issue of the letter of 8 December 1993 as a relevant change of circumstances under section 25(1)(b) of the Social Security Administration Act 1992, the failure ask the right questions in relation to review and revision was an additional error of law.
24. For those reasons, the decision of the appeal tribunal dated 13 June 1994 must be set aside as erroneous in point of law. I am able to give the decision which the appeal tribunal should have given on the basis of the facts which it found. There is no suggestion that the adjudication officer's decision awarding the claimant income support from 11 June 1992 was given in ignorance of or under a mistake as to a material fact or was erroneous in law. The only potential ground of review under section 25 of the Social Security Administration Act 1992 is a relevant change of circumstances since the decision was given (section 25(1)(b)). The issue of the letter of 8 December 1993 was a change of circumstances, but in my judgment was not a relevant change of circumstances because it was not in law capable of leading to a different decision on the claimant's entitlement to income support. Therefore, the adjudication officer has failed to prove a ground of review. For the same reason, review under regulation 17(4) of the Social Security (Claims and Payments) Regulations 1987 is not available because the adjudication officer has failed to prove that from 8 December 1993 the requirements for entitlement to income support are not satisfied. No other potential ground of review or reason for the non-satisfaction of the requirements for entitlement down to 13 June 1994 was put forward to the appeal tribunal by the adjudication officer.
25. My decision giving effect to that reasoning is set out in paragraph 2 above. In consequence, no decision is necessary on the questions mentioned in paragraphs 11 and 12 above. The result of my decision is that the existing award of income support to the claimant from 11 June 1992 for an indefinite period has continued in effect, so that income support would continue to be payable on the same basis as prior to 8 December 1993, subject to alteration under section 159 or 160 of the Social Security Administration Act 1992 to take account of benefit up-ratings etc. My decision in relation to the letter of 8 December 1993 is limited to the period down to the date on which the facts on which it is based were found. It seems unlikely that the adjudication officer could establish another ground of review in that period, but that remains a theoretical possibility. The award of income support from 11 June 1992 may of course continue in effect beyond 13 June 1994, subject to any alteration under section 159 or 160 of the Social Security Administration Act 1992, unless and until there is a review and revision of the award or the running of the open-ended claim is terminated.
4 May 1995
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