England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER
MR COMMISSIONER JACOBS
CIS/1545/2007

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/10 /2008

Lord Justice Mummery :

Short introduction

1. This is an appeal in an income support case. The decision appealed is that of the Social Security Commissioners (Mr Commissioner Jacobs) on 20 September 2007. The right of appeal is confined to questions of law.
2. A right to reside in the UK is a necessary condition for claiming income support. Directive 93/96/EEC (the Directive) and the implementing Immigration (European Economic Area) Regulations 2000 (the 2000 Regulations) laid down the conditions in which a student from abroad attending a vocational training course in the UK acquired a right to reside in the UK. The right to reside extended to the student's spouse and to their dependent children as family members. (The Directive and the 2000 Regulations were replaced by new measures as from 30 April 2006, but that does not affect their application to this case.)
3. Entitlement to income support is determined by reference to the facts at the date of the claim: section 8(2) Social Security Act 1998 (the 1998 Act). The provisions affecting "a person from abroad" and the treatment of such a person as "habitually resident" in the UK for the purposes of income support are contained in sections 124(1)(b) and (4) and 135 of the Social Security Contributions and Benefits Act 1992 and the Income Support (General) Regulations 1987 paragraph 17 of Schedule 7 and Regulation 21(3) and (3G.) As their general effect is agreed I need not set out the detailed provisions in this judgment. The appeal turns on the construction of the 2000 Regulations and the Directive rather than on the income support legislation. The material parts of the Directive and the 2000 Regulations are summarised and, where necessary, quoted verbatim below.
4. The Commissioner allowed the Secretary of State's appeal from the decision of the Fox Court Appeal Tribunal on 30 January 2007. Ms Alicja Jeleniewicz (the Claimant) is a Polish national. In the Appeal Tribunal she was successful in her appeal from the decision of the Secretary of State on 24 March 2006 terminating her income support. The Appeal Tribunal held that the Claimant had a right to reside in the UK. The basis of that decision was that the she was the parent and primary carer of a child, Victoria. Victoria, it was held, had a right to reside in the UK as the dependent child of her father, Mr Abba. He was formerly the Claimant's partner. It was held that he had a right to reside in the UK as a student from abroad (France) pursuing a vocational training course in the UK. That right extended to Victoria as his dependent child and, via her, to the Claimant.
5. In holding that the decision of the Appeal Tribunal was "hopelessly confused" and erroneous in law the Commissioner exercised his powers under section 14(8) of the 1998 Act to make findings of fact. His central finding of primary fact was that the Claimant had not shown that Victoria was Mr Abba's "dependent child." It was not contended that, at the material time, the Claimant had any independent right to reside in the UK, either as a student or as a worker, or an indirect right, as Mr Abba's spouse (they were not married.) She claimed an indirect or inferred right to reside in the UK via Victoria and Mr Abba. The Commissioner concluded that none of them had a right to reside in the UK within the 2000 Regulations or under the Directive. From and including 29 March 2006 the Claimant's applicable amount for the purposes of her entitlement to income support was nil so that she was not entitled to any payment. The Secretary of State was accordingly entitled to terminate the Claimant's income support.
6. Waller LJ gave permission for this second appeal on 6 March 2008 on the ground that the Claimant's appeal raised a point of some general importance. In addition to the construction of the 2000 Regulations and the Directive points have been raised on the relevance of the right to family life under Article 8 of the European Convention of Human Rights and on the inquisitorial and investigative nature of the Commissioner functions on hearing an appeal. An application to amend the grounds of appeal to allow all the necessary points to be argued was granted without opposition from the Secretary of State.
7. The precise issues for resolution on the appeal will be clarified with the help of a short summary of the principal provisions of the domestic and EC law.

The law

8. Under the Directive Member States are required to recognise that a student, who is on a vocational training course in another Member State, has a right of residence in the host Member State. The right is designed to promote vocational training (and therefore free movement of workers) within the EC. It is recognised that the right of residence can only be genuinely exercised if it is granted in addition to the student's spouse and their dependent children. As it is stated in the recitals

"3. ….access by a national of one Member State to vocational training in another Member State implies, for that national, a right of residence in that other Member State."

9. It is also recited that

"6. …the beneficiaries of the right of residence must not become an unreasonable burden on the public finances of the host Member State."

10. Article 1 lays down a series of conditions for students to acquire a right to reside in the host state -

"In order to lay down conditions to facilitate the exercise of the right of residence and with a view to guaranteeing access to vocational training in a non-discriminatory manner for a national of a Member State who has been accepted to attend a vocational training course in another Member State, the Member States shall recognise the right of residence for any student who is a national of a Member State and who does not enjoy that right under other provisions of Community law, and for the student's spouse and for their dependent children, where the student assures the relevant national authority, by means of a declaration or by such alternative means as the student may choose that are at least equivalent, that he has sufficient resources to avoid becoming a burden of the social assistance system of the host Member State during their period of residence, provided that a student is enrolled in a recognised educational establishment for the principal purpose of following a vocational training course there and that he is covered by sickness assurance in respect of all risks in the host Member State."

11. Article 4 relates to the duration of the right to reside-

"The right of residence shall remain for as long as the beneficiaries of that right fulfil the conditions laid down in Article 1."

12. The 2000 Regulations were intended to implement the provisions of the Directive into domestic law. Regulation 14 provided that "a qualified person", defined in Regulation 5 to include a student who is an EEA national and is in the UK, has a right to reside in the UK. Qualified persons include "family members" e.g. the student's spouse and dependent children: Regulation 6(2).
13. Under Regulation 3(1) a "student" means a person who-

"(i) is enrolled at a recognised educational establishment in the United Kingdom for the principal purpose of following a vocational training course;

(ii) assures the Secretary of State by means of a declaration, or by such alternative means as he may choose that are at least equivalent, that he has sufficient resources to avoid him becoming a burden on the social assistance system of the United Kingdom; and

(iii) is covered by sickness assurance in respect of all risks in the United kingdom."

14. The effect of a student's declaration of sufficient resources within Regulation 3(1) (ii) can be conveniently determined at this point. At one stage it was argued for the Claimant that the making of a declaration was a one-off requirement and that, provided that a declaration was made, the provisions of Articles 1 and 4 of the Directive would remain satisfied.
15. This submission was not pressed at the hearing of the appeal. It fails. It takes no account of the fact that a student's circumstances may change after a declaration has been made. The effect of the changes may be that the condition, which provides that the beneficiaries are not to become a burden on the social assistance system of the host Member State during their period of residence, is no longer satisfied. The required self sufficiency is a matter of substance. It is not satisfied for the entire duration of the vocational training course by a form of the declaration. The right of residence may be lost if the student or family members, who have a right to reside, become a burden on the host state. As Lewison J observed in the course of argument any declaration made by Mr Abba in this case must have preceded the birth of Victoria and the other changes that have occurred in his circumstances, such as the circumstance that he and the Claimant began to live apart after Victoria's birth. Whether the conditions in Article 1 of the Directive were and remained fulfilled had to be considered by the Secretary of State as at the date of the claim for income support.
16. With that summary of the law I now turn to consider a few more facts of the case.
17. The Claimant is aged 35. She came from Poland to the UK on 1 February 2004. She did various jobs. She was an au pair until about November 2004 by which date she had become pregnant. At some point she enrolled at a college to study English and Maths. She claimed income support on 25 October 2005 and received it until 28 March 2006. She was neither a student nor a worker at the date when the Secretary of State made his decision to terminate her income support.
18. On 5 August 2005 the Claimant gave birth to Victoria. Mr Abba is the father. He is a French national, who came to the UK to attend an International Business Studies course. He ceased to live with the Claimant. He has had contact with Victoria about twice a week. The Claimant has had a second child, also fathered by Mr Abba. He paid the Claimant an average of £10 a week.

Decision of Social Security Commissioner

19. The Commissioner concluded that the Claimant was not entitled to income support, as she did not have a right to reside in the UK. She did not have an independent right to reside as a student. So she sought to establish (a) that Mr Abba had a right to reside in the UK as a student; (b) that Victoria had a right to reside in the UK as Mr Abba's dependent child of Mr Abba; and (c) that, by virtue of those facts, she also has a right to reside in the UK.
20. The Commissioner held that Mr Abba did not satisfy the conditions of Regulation 3(1) or Article 1 of the Directive at the material date. There was no evidence as to where, at the material time, Mr Abba was studying; whether he was enrolled at a recognised educational establishment; whether he had sufficient resources to avoid becoming a burden of the social assistance system; or whether he was covered by sickness insurance for all risks.
21. Turning to Victoria the Commissioner held that she had no right to reside in the UK, as there was insufficient evidence of her dependency on her father in the sense of support actually being given by him. She lacked (via her father) access to sufficient resources to avoid being a burden on the social security system and it was likely that she would require public financial support for sufficient time and sufficient amount to be a burden on the social assistance system of the UK. The Claimant thus failed to establish the facts on which she sought to base an indirect right to reside in the UK.
22. The Secretary of State also contended that, even if Mr Abba had a right to reside in the UK as a student and even if Victoria had a right to reside in the UK as Mr Abba's dependent child, the Claimant had no right to reside in the UK as Victoria's primary carer. It was unnecessary for the Commissioner to decide this point.

Discussion and conclusion

23. Mr Stephen Knafler appeared for the Claimant in this appeal. (Different counsel appeared for her in the Appeal Tribunal and before the Commissioner.) The case presented by the Claimant's previous counsel was quite simply that Mr Abba had a right to reside in the UK as a French national pursuing a vocational training course; that he was financially supported by his family; that Victoria was a dependent child of Mr Abba and as such had a right to reside in the UK; and that the Claimant was entitled to reside in the UK as Victoria's mother and primary carer.
24. The case advanced by Mr Knafler on the appeal seems to involve a shift in the emphasis from the factual issue of Victoria's dependency on her father, which was rejected by the Commissioner, to the effect of the change in Mr Abba's circumstances on his right of residence and its effect on the right of residence of family members i.e. the birth of Victoria, the breakdown in the relationship between the Claimant and Mr Abba and their living apart.
25. The question proposed by Mr Knafler was this: did those changes mean that Victoria automatically lost the right to reside in the UK without any prior consideration of the question whether it would be disproportionate to deprive her of a right to reside in the UK? Mr Knafler argued that the right to family life under Article 8 of the Convention was important to everyone, including students, and should have featured in considering the proportionality of depriving Victoria of her right to reside. (It was accepted by Mr Knafler, however, that there was no evidence of unlawful discrimination in the treatment of the Claimant or of Mr Abba and Victoria from whom she claimed to derive her right to reside in the UK.)
26. Mr Knafler developed his main submission along the following lines. He explained that the functions of the Commissioner, who rejected the Claimant's right to reside in the UK on the basis of his clear findings of fact, were inquisitorial and investigative rather than adversarial. He cited Kerr v. Department for Social Development [2004] 1 WLR 1372 paragraphs 56-63 per Baroness Hale and submitted that the Commissioner knew what questions needed to be asked and what information was needed to determine the Claimant's entitlement to income support in the light of the provisions of the Directive and the 2000 Regulations. The Commissioner should have identified for the Claimant the essential question as whether Victoria automatically lost her right of residence in the UK as a result of no longer fulfilling the conditions laid down in the 2000 Regulations and in the Directive and whether it was disproportionate to deprive her of the right to reside.
27. Mr Knafler accepted that under Article 4 of the Directive, as interpreted by the Court of Justice in Commission v. Italy Case C-424/98, BAILII: [2000] EUECJ C-424/98, and Grzelczyk [2001] ECR I- 6193, a student, such as Mr Abba, or a family member, such as Victoria, could lose the right of residence in the UK, if the student is unable to support himself or his family member and has become a burden on social assistance. The right to reside was not, however, lost automatically by reason of a student or family member becoming unable to support himself or applying for social assistance. He pointed to the differences between the Regulations 3 and 14, which were, as they are permitted to be, more favourable than Article 4 of the Directive. They did not contain any mechanism whereby the student's right of residence ends or can be terminated because of changed circumstances resulting in a student or family member requiring social assistance. Mr Knafler also relied on the fact that Article 4 did not contain any basis for treating a family member differently in terms of a student having a right of residence.
28. In a case where there were changed circumstances Mr Knafler contended that the proper approach of the Commissioner should have been to enquire into what the proportionate course would be. The issue was whether, on the basis of the facts as they stood at the time of the decision of the Secretary of State to terminate income support, it would be a disproportionate step to treat Victoria's right to reside as at an end, taking into account the likely burden of social assistance that she would create. The Commissioner had erred in law in failing to raise and deal correctly with the question whether it was proportionate for Victoria to lose her right to reside in the UK automatically as a result of her father's changed circumstances. On a correct approach Mr Abba and Victoria have continued to have a right of residence on which the Claimant could base her indirect right.
29. In my judgment, these submissions do not begin to establish that the decision of the Commissioner was erroneous in law.
30. First, as to the process adopted by the Commissioner on the hearing of the appeal, there was no error of law. As Baroness Hale observed in Kerr see above) at paragraph 62 the claimant is the person who, generally speaking, can and must supply the information needed to determine whether the conditions of entitlement have been met. A similar point was made by Lord Hope in his speech (at paragraph 16) when he said that facts which may be reasonably within the claimant's knowledge are for the claimant to supply at each stage of the inquiry. In my judgment, this is as true in determining whether the conditions of entitlement have ceased to be satisfied as it is when determining whether the conditions have been satisfied.
31. In this case the Claimant was represented by solicitors and counsel both before the Appeal Tribunal and the Commissioner. It was proper and reasonable for the Commissioner to proceed on the basis that the Claimant's legal representatives had supplied him with all the information relevant to questions that he had to decide and that the submissions made to him by counsel were based on the available information and were directed to the relevant provisions of the Directive and the 2000 Regulations.
32. Secondly, the claim to income support was not at all straightforward. It was based on a claim to a right of residence which was doubly indirect in law. It failed on the facts. The Commissioner did not doubt the father's emotional attachment, but that was not sufficient to establish dependency. The case was lacking in supporting evidence on the crucial question whether Victoria was a dependent child of Mr Abba. On the evidence adduced below, it is impossible to say that the Commissioner was wrong in law in rejecting the contention that the relationship of Victoria to Mr Abba was one of a dependent child. Having summarised the evidence relied on he said that Mr Abba's responsibility for Victoria was limited and that he did not consider that

"31. ….that degree of responsibility would be sufficient to act as a legitimate[sic]deterrence on the exercise of free movement in pursuit of vocational training."

33. The only evidence was contact twice a week and irregular payments averaging £10 per week towards upkeep. As Mr Knafler accepted, it was not enough that there should be some emotional dependency. There must be material support which, though not necessarily financial, must provide for or contribute towards, the basic necessities of life: see paragraph 44 of the decision of the Social Security Commissioner (CIS/2100/2007) summarising the case law of the Court of Justice on the dependency of family members on a Community national. (Mr Ward informed us that the decision may be appealed by the Secretary of State.)
34. Thirdly, I would reject Mr Knafler's submission that the Commissioner did not address the issue of proportionality in determining Victoria's right of residence. He addressed proportionality (in paragraph 29 of his decision) saying that European legislation had to be implemented in a way that was proportionate. He considered whether it would be proportionate, for example, to deprive Victoria of the right of residence, if there was a single claim for a small amount of social assistance for a short period. The Commissioner went on to find that it was likely that Victoria would require public financial support for sufficient time and in sufficient amount to be a burden on the social assistance system. Mr Knafler suggested that this was "pure speculation." In my judgment, the Commissioner was entitled to reach this conclusion on the evidence before him. The evidence did not indicate that recourse to State assistance would be of a temporary nature. The consequence was that Victoria did not have a right of residence in the UK; nor did the Claimant.

Result

35. I would dismiss the appeal. No question of law arises from the Social Security Commissioner's decision. I would commend it for its thoroughness, clarity and accessibility. The Secretary of State was entitled to terminate the Claimant's income support.
36. As the Commissioner was entitled to conclude that neither Mr Abba nor Victoria had a right to reside in the UK, it was unnecessary for him and it is unnecessary for this court to express a view on the question whether, if they had had a right to reside in the UK, the Claimant would also have, albeit indirectly and as primary carer of a child, "an inferred right" to reside for the purposes of claiming entitlement to income support. That right was said to arise by analogy with the judgment of the Court of Justice in Baumbast v. Secretary of State for Health [2002] ECR I-7091 rather than under the Directive itself.

Lady Justice Arden:

37. I agree.

Mr Justice Lewison:

38. I also agree.