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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Sanneh, R (on the application of) v Secretary of State for Work & Pensions [2012] EWHC 1840 (Admin) (30 April 2012)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/1840.html
Cite as: [2012] EWHC 1840 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Prior Courts 33 Bull Street B4 6DS |
||
B e f o r e :
(Sitting as a Judge of the High Court)
____________________
| THE QUEEN ON THE APPLICATION OF SANNEH | Claimant | |
| v | ||
| SECRETARY OF STATE FOR WORK & PENSIONS | Defendant |
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Mr J Coppel (instructed by DEPARTMENT OF WORK & PENSIONS) appeared on behalf of the Defendant
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- HIS HONOUR JUDGE PURLE: In the form in which this application is now before the court, the decision which is the subject matter of challenge is a decision of 15th December 2011 by the Secretary of State to suspend the payment of Income Support.
- What happened is that in November 2011 the First Tier Tribunal ruled that the claimant was entitled to Income Support, as to treat her as being subject to immigration control was contrary to rights deriving from the decision in Zambrano [2011] ECR 1-0000 (8 March 2011).
- The claimant is a Gambian national but has a UK child and therefore it is said that the failure to recognise her right to remain here, with the consequence that she can claim Income Support, undermines if not takes away the child's rights of citizenship. The tribunal decision having been made the Secretary of State, pursuant to powers which he has under the Social Security and Child Support Decision and Appeals Regulations 1999, decided to suspend payment of the relevant benefit. The Secretary of State has express power to do that under regulation 16 if, amongst other things, an appeal is pending against a decision of the First Tier Tribunal. An appeal has been filed in this case, and permission has been granted, so there is no dispute that an appeal is pending. Prior to the filing of the appeal, the appeal was under consideration, which also qualified as a pending appeal under the regulations.
- The letter of 15th December did not condescend to detailed reasons but it is clear that what prompted the suspension was consideration of an appeal. The position is even clearer now as permission to appeal has been granted.
- I am not able to say whether the appeal is likely to succeed or whether it is likely to fail. The precise impact of Zambrano has a number of us scratching our heads at regular intervals. Mr Rutledge has certainly put his client's case persuasively. I therefore proceed on the basis that the Upper Tribunal may well agree both with him and the First Tier Tribunal. If that is so, the Income Support will be paid retrospectively. It has not been cancelled but suspended. On the other hand, if the Income Support is paid and the Secretary of State wins the appeal, there will be no recoupment in the absence of misrepresentation or something of that nature. One sees therefore why the power to suspend exists. There is, I should add, departmental guidance which requires the Secretary of State to take into account a number of matters including hardship.
- At times Mr Rutledge seemed to come close to submitting that, in a case such as this concerning fundamental rights of citizenship under EU law, no (or virtually no) suspension of payment of benefit could ever be justified.
- However, the rights under EU law have not been finally established yet. At the moment the claimant is well ahead. The position may (or may not) be different when the appeal is determined. Either way the claimant will be protected to this extent: the claimant will have the right to payment retrospectively if the first instance decision is upheld.
- At the time the Secretary of State made his decision the claimant was in receipt of a number of benefits including Child Tax Credit. It now appears that Child Tax Credit is no longer being paid, though this has only recently come to the attention of the Secretary of State. The Secretary of State in the light of that has indicated his willingness to reconsider the position without in any way predetermining the result of that reconsideration.
- The Secretary of State also points out that, in the case of a Zambrano applicant for leave to remain, the current practice is to permit such applicants to work temporarily. The claimant has indicated that she has friends and family willing to look after her child whilst she is at work, and that she is willing to do any form of work.
- I have no doubt that the hardship that the claimant faces is real but there is at present no likelihood of imminent departure from this country and a return to Gambia. Mr Rutledge says that does not matter and he prays in aid the reasoning, which I accept supports him on this point, of the First Tier Tribunal. The effect of the continued denial of Income Support, so long as she is unable to work (assuming that to remain the position) may, sooner or later, require her to leave this country and return to Gambia, though that is apparently her last wish. But it is not an inevitable result of the short-term suspension of support, nor is it looking likely this side of any appeal.
- I have to bear in mind that the decision on whether or not to suspend payment of Income Support is the Secretary of State's, not this court's. It can only be challenged on well-recognised grounds such as irrationality. Given that the claimant and her child lived sustainably (though not lavishly) at the time that the decision was made, the challenge to the 15th December letter really does not, in my judgment, get off the ground. In those circumstances, I do not consider that there is a sufficiently arguable claim to justify a judicial review. It follows from this that there is no judicial review claim to which interim relief is appropriately to be attached. I would in any event have refused interim relief upon the grounds that the balance of convenience, even giving the fullest regard to the European rights of citizenship that the claimant has presently established, is comfortably in the Secretary of State's favour because of the relative difficulties in recoupment as against the ease of retrospective payment.
- Accordingly, the applications are dismissed.
- HIS HONOUR JUDGE PURLE: Does anyone need a costs order or anything?
- MR COPPEL: My Lord, I think we would like a costs order in relation to the preparation of the acknowledgment of service, subject --
- HIS HONOUR JUDGE PURLE: Do you have legal funding?
- MR COPPEL: It would be the usual publicly funded order.
- HIS HONOUR JUDGE PURLE: Do you need an order? You can have one if you want one.
- MR COPPEL: Yes, the usual order.
- HIS HONOUR JUDGE PURLE: Whatever it is.
- MR COPPEL: There be a detailed assessment of the --
- HIS HONOUR JUDGE PURLE: What is your costs of preparing -- I am told there is no acknowledgment of service involved. I am told there is no acknowledgment of service or is there?
- MR COPPEL: There have been two sets of summary grounds both prior to the first hearing before you and then --
- HIS HONOUR JUDGE PURLE: Summary grounds of resistance but no acknowledgment of service.
- MR COPPEL: The summary grounds would have come in to the court attached to the acknowledgment of service.
- HIS HONOUR JUDGE PURLE: Well I have a note from the court that says: "SSWP has not filed an acknowledge of service but has filed summary grounds of defence." The summary grounds of defence are part of the acknowledgment of service usually, are they not? You say it is the same. What do you say they cost. You cannot (inaudible) it an order, you certainly have a proportionate order.
- MR COPPEL: My Lord the first lot of summary grounds came to £1224.
- MR RUTLEDGE: My Lord, we would object and we suggest that there be written submissions on this because there is a dispute as to...
- HIS HONOUR JUDGE PURLE: Submissions on what? I want to know the principle.
- MR RUTLEDGE: In principle and quantum.
- HIS HONOUR JUDGE PURLE: Anyone who stands up and says would I have written submissions when it is already 6.20 pm is pushing at a pretty much open door. You sort out between you how long you need for these written submissions. If not I will deal with the written submissions on written submissions. Seven days each is my provisional view. You can go first.