Northern Ireland - Social Security and Child Support Commissioners' Decisions

 


[2008] NISSCSC CSC1_08_09(IS) (01 October 2005)

Decision No: C1/08-09(IS)

C2/08-09(IS)

C3/08-09(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
INCOME SUPPORT
Appeals to a Social Security Commissioner on questions of law from decisions of a Tribunal dated 2 November 2007
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This decision relates to three linked appeals which were all heard together before the tribunal and also were heard together before the Commissioner.
2. This decision relates to appeals by the Department against the decisions of the tribunal allowing the appeals of the claimant against the decisions of the decision-maker which was that the claimant does not have the right to reside in the Common Travel Area and therefore cannot be treated as habitually resident in the United Kingdom and therefore, as a person from abroad, had an income support applicable amount of nil.
3. The appeal tribunal held that the claimant should have her income support (IS) calculated on the basis that she is not a person from abroad. In particular, the original decision of the Department dated 27 November 2006 in C1/08-09(IS) was that the claimant does not have the right to reside in the Common Travel Area and therefore cannot be treated as habitually resident in the United Kingdom and, in consequence, as a person from abroad, she had an IS applicable amount of nil. On appeal to the tribunal, this decision was not confirmed and accordingly, the decision-maker was directed to proceed to calculate the claimant's IS from 4 September 2006 on the basis that she was not a person from abroad. The original decision dated 15 May 2007 in C2/08-09(IS) was identical and, on appeal, the tribunal decided that the claimant was not a person from abroad accordingly, and, did not have an IS applicable amount of nil. The original decision dated 3 July 2007 in C3/08-09(IS) was also identical and, on appeal, the tribunal also decided that the claimant was not a person from abroad and, accordingly, did not have an IS applicable amount of nil.
4. The claimant's state of origin is Portugal. She came to Northern Ireland on 19 February 2002 and worked for a company called Moy Park Limited. She claimed incapacity benefit (IB) from 9 August 2002 to 26 August 2002. She then made a joint claim, with her husband, who also is a Portuguese national, for jobseekers allowance (JSA) from 26 November 2002 until 12 January 2003. The claimant's husband claimed JSA in respect of the claimant from 1 July 2003 until 23 October 2003, 3 November 2003 until 5 January 2004, 7 July 2004 until 2 August 2004 and 25 August 2004 until 24 November 2004. On 24 November 2004 the claimant made a claim for IS, as a lone parent, which was paid on the grounds that she was the family member of a "qualified person", as her husband was working in Northern Ireland. The claimant returned to Portugal on 27 April 2006. However, she did not declare this fact to the Department and benefit continued until 15 June 2006. Subsequently when the Department became aware of this absence from Northern Ireland, IS was disallowed from 5 December 2005 as this was the date her husband had left Northern Ireland and returned to Portugal and, therefore, the claimant was no longer the spouse of a "qualified person" from that date. The claimant returned to Northern Ireland on 1 September 2006 and claimed IS from 4 September 2006 as a lone parent with two children, T (aged 3 in April 2006) and V (aged 2 in September 2006). This claim was disallowed on 28 November 2006 on the grounds that she had no right to reside, as her husband was not living in Northern Ireland and she was not a family member of a "qualified person". This was a decision which became the subject matter of appeal C1/08-09(IS) and which I have referred to as decision (1). The claimant appealed against this decision on 5 September 2007 and a late appeal was accepted by the Department.
5. The claimant made a further claim for JSA from 5 December 2006 and benefit was paid to her as a jobseeker from 8 December 2006 to 4 February 2007. She was admitted to hospital from 21 March 2007 until 4 June 2007 and during this period her children returned to Portugal with their grandmother. On 2 May 2007 the claimant made a further claim for IS on the grounds of incapacity for work. This was disallowed on 15 May 2007 on the grounds that she had no right to reside. This decision is now the subject matter of appeal C2/08-09(IS) and has been referred to hereafter as decision (2). The claimant appealed this decision on 5 September 2007 and a late appeal was accepted by the Department.
6. On 21 June 2007 the claimant made a further claim for IS on grounds of incapacity for work. This was also disallowed on 3 July 2007 on the grounds that she had no right to reside in the United Kingdom. This decision is the subject matter of appeal C3/08-09(IS), hereafter referred to as decision (3). The claimant appealed against this decision on 5 September 2007 and the late appeal was accepted by the Department.
7. The three appeals were heard together as linked appeals on 2 November 2007 and the tribunal in relation to the appeal from each decision found that the claimant had a right to reside as a worker under regulation 6 of the Immigration (European Economic Area) Regulations 2006 or had a permanent right to reside under regulation 15(1)(b) of the Regulations.
8. Leave to appeal to a Commissioner was sought by the Department in relation to each decision and leave was granted by the legally qualified member of the tribunal on 15 March 2008. In each case the point of law set out by the legally qualified member was:

"Whether the tribunal erred in law in holding that [the claimant] had acquired the status of a "worker"?

9. A hearing of the appeal to a Commissioner took place on 23 June 2008 at Dungannon Courthouse. The appellant was represented by Mr O'Connor of Decision Making Services on behalf of the Department. The claimant/respondent was represented by Mr Ciaran White, instructed by Hagan & McConville, Solicitors. Oral submissions were made by both advocates and I also had the benefit of extensive written skeleton arguments when dealing with the issues in this case.
10. The following are the basic relevant domestic legislative provisions:

1. Section 123 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 sets out the general conditions of entitlement for IS.

2. Section 131(2) of this Act provides that the power to prescribe applicable amounts for the purpose of calculating IS includes a power to prescribe a nil amount.

3. Paragraph 15 of Schedule 7 of the Income Support (General) Regulations (Northern Ireland) 1987 sets out that a "person from abroad" is entitled to an applicable amount of nil.

4. Regulation 21AA(2) of these regulations prescribes that no-one shall be treated as habitually resident in the United Kingdom unless he has "a right to reside".

11. As Mr O'Connor has pointed out, the Income Support Regulations do not provide a definition of the concept of a right to reside. Accordingly he submitted that the term must refer to entitlement arising under both European Union and domestic law. The Immigration (European Economic Area) Regulations 2006 reflect the United Kingdom's obligations under European Union law and, as such, provide a scheme whereby European Economic Area nationals and their family members can assert rights of entry into, or residence in, the United Kingdom.
12. In addition, regulation 21AA(4) of the Income Support Regulations provides that a claimant is not "a person from abroad" if he falls within certain categories of person. The relevant categories in relation to this appeal are (a) a worker for the purposes of Directive 2004/38/EC or a family member of such a person, (b) a person who has retained that status and (c) a person who has a right to reside permanently in the United Kingdom by virtue of Article 17 of that Directive. The equivalent in United Kingdom legislative references are regulation 6, 7 and 15 of the 2006 Regulations – these Regulations have transposed into United Kingdom domestic law the requirements of the "Citizens Directive" 2004/38/EC.
13. Mr O'Connor has submitted that the tribunal has erred in law as set out in the succeeding paragraphs:

In relation to appeal C1/08-09(IS) Mr O'Connor made the following points on behalf of the Department:

(1) the tribunal specifically found that the claimant is a worker in accordance with regulation 6 of the 2006 Regulations. This regulation states as follows:

"Qualified person"

6. — (1) In these Regulations, "qualified person" means a person who is an EEA national and in the United Kingdom as—

(a) a jobseeker;

(b) a worker;

(c) a self-employed person;

(d) a self-sufficient person; or

(e) a student.

(2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if—

(a) he is temporarily unable to work as the result of an illness or accident;

(b) he is in duly recorded involuntary unemployment after having been employed in the United Kingdom, provided that he has registered as a jobseeker with the relevant employment office and—

(i) he was employed for one year or more before becoming unemployed;

(ii) he has been unemployed for no more than six months; or

(iii) he can provide evidence that he is seeking employment in the United Kingdom and has a genuine chance of being engaged;

(c) he is involuntarily unemployed and has embarked on vocational training; or

(d) he has voluntarily ceased working and embarked on vocational training that is related to his previous employment.

(3) A person who is no longer in self-employment shall not cease to be treated as a self-employed person for the purpose of paragraph (1)(c) if he is temporarily unable to pursue his activity as a self-employed person as the result of an illness or accident.

(4) For the purpose of paragraph (1)(a), "jobseeker" means a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged."

However, it is not clear from the statement of reasons for what period the tribunal found the claimant to be a worker for the purposes of the 2006 Regulations. The claimant has stated in her letter of appeal dated 5 September 2007 that she came to the United Kingdom on 19 February 2002 and worked for a year until the birth of her child. The tribunal determined that the claimant was a "worker" and, although it is agreed that whilst the claimant was employed by Moy Park Limited she was a "worker", the submission is that the claimant could not continue to be treated as a "worker" after this employment ended.

It is also not clear when the claimant ceased working for Moy Park Limited but the submission is that from 24 November 2004 the claimant had not retained the status of a "worker" under regulation 6(2) of the 2006 Regulations – the relevant provisions of which provide for a person who is no longer working to be treated as a worker if the person is either temporarily unable to work as a result of an illness or accident or is in duly recorded involuntary unemployment and has registered as a jobseeker with the relevant unemployment office. However, for the period 24 November 2004 until 5 December 2005 the claimant was in receipt of IS as a lone parent and fulfilled none of the conditions in regulation 6(2). The submission was therefore that the claimant would not have retained the status of a "worker" for the period from 24 November 2004 until 5 December 2005.

Mr O'Connor has also pointed out that although the 2006 Regulations were in force at the time of this claim for benefit, it is also necessary to consider the equivalent provisions of the Immigration (European Economic Area) Regulations 2000. This is because the period when the claimant worked and claimed IS was before the operative date of the 2006 Regulations (30 April 2006). Paragraph 6(1) of Schedule 4 to the 2006 Regulations provides for continuity with the 2000 Regulations. In particular paragraph 6(1) allows periods of residence or activities carried out under the 2000 Regulations to be treated as periods of activity or residence for the purposes of calculating periods of activity and residence under the 2006 Regulations.

The provisions for retention of worker status are substantially the same in the 2000 Regulations and, in particular, regulation 5 of the 2000 Regulations provides:

"

…

(2) a worker does not cease to be a qualified person solely because –

(a) he is temporarily incapable of work as a result of illness or accident;

(4) he is involuntarily unemployed, if that fact is duly recorded by the relevant employment office."

The Departmental submission is that during the period from 24 November 2004 until 5 December 2005 the claimant had lost the status of a "worker" and, therefore, for any period thereafter the claimant would not have been a "qualified person" and therefore would not have had a right to reside under regulation 14 of the 2000 Regulations (which sets out the right of residence for qualified persons and their families. During this period the claimant's right to reside was, in the Department's submission, as a family member of a qualified person and not as a worker or someone who is treated as a worker. The claimant continued to receive IS as a lone parent up to 15 June 2006 when the Department discovered that she had returned to Portugal. Therefore the Department has submitted that the claimant could not have continued to be treated as a worker under regulation 6(2) of the 2006 Regulations (which sets out certain circumstances where a person who is no longer working can be treated as a worker), taking into account regulation 5 of the 2000 Regulations (which defined "qualified person"), during this period.

(2) The Department's second point is as follows:

The tribunal further decided that the claimant had acquired a right to reside permanently in the United Kingdom under regulation 15(1)(d) of the 2006 Regulations as a family member of a worker who had ceased activity. Regulation 15(1)(d) is in the following terms:

"The following persons shall acquire the right to reside in the United Kingdom permanently –

…

(d) the family member of a worker … who has ceased activity,

…."

However, the Departmental submission is that the term "worker or self-employed person who has ceased activity" has a specific meaning as set out in regulation 5 of the 2006 Regulations and does not mean someone who has merely stopped work or left the United Kingdom. Regulation 5 is in the following terms:

"Worker or self-employed person who has ceased activity"

5. — (1) In these Regulations, "worker or self-employed person who has ceased activity" means an EEA national who satisfies the conditions in paragraph (2), (3), (4) or (5).

(2) A person satisfies the conditions in this paragraph if he—

(a) terminates his activity as a worker or self-employed person and—

(i) has reached the age at which he is entitled to a state pension on the date on which he terminates his activity; or

(ii) in the case of a worker, ceases working to take early retirement;

(b) pursued his activity as a worker or self-employed person in the United Kingdom for at least twelve months prior to the termination; and

(c) resided in the United Kingdom continuously for more than three years prior to the termination.

(3) A person satisfies the conditions in this paragraph if—

(a) he terminates his activity in the United Kingdom as a worker or self-employed person as a result of a permanent incapacity to work; and

(b) either—

(i) he resided in the United Kingdom continuously for more than two years prior to the termination; or

(ii) the incapacity is the result of an accident at work or an occupational disease that entitles him to a pension payable in full or in part by an institution in the United Kingdom.

(4) A person satisfies the conditions in this paragraph if—

(a) he is active as a worker or self-employed person in an EEA State but retains his place of residence in the United Kingdom, to which he returns as a rule at least once a week; and

(b) prior to becoming so active in that EEA State, he had been continuously resident and continuously active as a worker or self-employed person in the United Kingdom for at least three years.

(5) A person who satisfies the condition in paragraph (4)(a) but not the condition in paragraph (4)(b) shall, for the purposes of paragraphs (2) and (3), be treated as being active and resident in the United Kingdom during any period in which he is working or self-employed in the EEA State.

(6) The conditions in paragraphs (2) and (3) as to length of residence and activity as a worker or self-employed person shall not apply in relation to a person whose spouse or civil partner is a United Kingdom national.

(7) For the purposes of this regulation—

(a) periods of inactivity for reasons not of the person's own making;

(b) periods of inactivity due to illness or accident; and

(c) in the case of a worker, periods of involuntary unemployment duly recorded by the relevant employment office,

shall be treated as periods of activity as a worker or self-employed person, as the case may be."

The Departmental submission is that there is no evidence that the claimant's husband satisfied this definition as set out in regulation 5. Therefore, as the claimant's husband does not fall into any of these categories, the claimant cannot be a "family member of a worker or self-employed person who has ceased activity" under regulation 15(1)(d) of the Regulations.

The Department's submission has also taken issue with the tribunal deciding that the claimant can rely on regulation 5(7) of the 2006 Regulations so that periods of inactivity not of the person's own making or due to illness and periods of involuntary unemployment duly recorded shall be treated "as periods of activity as a worker". Regulation 5(7) is in the following terms:

"For the purposes of this regulation –

(a) periods of inactivity for reasons not of the person's own making;

(b) periods of inactivity due to illness or accident; and

(c) in the case of a worker, periods of involuntary unemployment duly recorded by the relevant employment office;

shall be treated as periods of activity as a worker or self-employed person, as the case may be."

However, regulation 5(7) specifically states "for the purposes of this regulation". Therefore, according to the Department, this provision can only be applicable to the cases or circumstances covered by regulation 5 of the 2006 Regulations. The Department's submission is that regulation 5 specifically relates to "worker or self-employed person who has ceased activity" and therefore would have only related to any periods of inactivity or involuntary unemployment incurred by the claimant's husband. As the tribunal found that the claimant was a family member of a worker who has ceased activity (regulation 15(1)(d)) and it has not been determined by the tribunal that the claimant satisfies the conditions in regulation 5 of the 2006 Regulations, she cannot, according to the Department, benefit from the provisions of paragraph (7) of that regulation.

14. The Department accepts that if its appeal in C1/08-09(IS) fails, it cannot succeed in its appeals in relation to C2/08-09(IS) and C3/08-09(IS).
15. However, if the Department succeeds on the first appeal – and if I hold that the claimant did not have a permanent right of residence in accordance with regulation 15(1)(d) of the 2006 Regulations or as a "worker" – the Department also submits that it is necessary to determine whether is a "qualified person" in relation to the second claim (appeal C2/08-09(IS)) relating to the claim dated 2 May 2007 for IS and the third claim (appeal C3/08-09(IS)) relating to the claim dated 21 June 2007, also for IS.
16. The grounds of the second claim (the claim made on 2 May 2007 for IS) had been that the claimant had previously been in receipt of JSA was a "qualified person" as a "jobseeker" under regulation 6(1)(a) of the 2006 Regulations. However, the Department submitted that the 2006 Regulations did not allow a person to retain "jobseeker" status while incapable of work and, as the claimant was not working prior to her claim for IS, she did not fall within regulation 6(2)(a) which enables persons to be treated as workers if they are temporarily unable to work as a result of an illness or accident. The Department therefore submitted that the claimant is not a "qualified person" for the purposes of regulations 6 and 14 of the 2006 Regulations and, therefore, has no right to reside in the United Kingdom and does not fulfil the requirements of regulation 21AA(2) of the 2006 Regulations.
17. The Department's additional submissions in relation to the third claim are identical to those set out in the previous paragraph except that the relevant date of the claim was 21 June 2007.
18. It is worthy of note that the Department's submissions included observations on the claimant's rights to reside through her children. However, it must be remembered that the two children were not in NI or any other part of the United Kingdom from 21 March 2007 as they were then in the care of her mother in Portugal.
19. Mr White, on behalf of the claimant, has made a number of interesting points. In particular, he submitted that the claimant has a right to reside as a family member as she has retained that right under the provisions of Article 12 of the 2004 Directive. Article 12 is in the following terms:

"Article 12

Retention of the right of residence by family members in the event of death or departure of the Union citizen

1. Without prejudice to the second subparagraph, the Union citizen's death or departure from the host Member State shall not affect the right of residence of his/her family members who are nationals of a Member State.

Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).

2. Without prejudice to the second subparagraph, the Union citizen's death shall not entail loss of the right of residence of his/her family members who are not nationals of a Member State and who have been residing in the host Member State as family members for at least one year before the Union citizen's death.

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. "Sufficient resources" shall be as defined in Article 8(4).

Such family members shall retain their right of residence exclusively on a personal basis.

3. The Union citizen's departure from the host Member State or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies."

20. Article 12(1) specifically provides that the departure of the Union citizen shall not affect the right of residence of the family members who are nationals of a Member State. He submits that regulation 10 of the 2006 Regulations does not transpose the full and proper effect of this particular provision. However, he also submits that claimant can rely on the direct effect of Article 12(1).
21. Mr White accepts that Article 12(3) has been transposed in regulation 10(3) and (4). However, he submits that this is a further and greater guarantee given to single parents of children attending school, irrespective of the nationality of the children and single parent. Nonetheless, he now accepts that the claimant cannot benefit from Article 12(3) because her children are not of school age. However, this does not, in his submission, affect the claimant's rights under Article 12(1).
22. Regulation 10 of the Immigration (European Economic Area) Regulations 2006 is in the following terms:

"10.—(1) In these Regulations, "family member who has retained the right of residence" means, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), (4) or (5).

(2) A person satisfies the conditions in this paragraph if—

(a) he was a family member of a qualified person when the qualified person died;

(b) he resided in the United Kingdom in accordance with these Regulations for at least the year immediately before the death of the qualified person; and

(c) he satisfies the condition in paragraph (6).

(3) A person satisfies the conditions in this paragraph if—

(a) he is the direct descendant of—

(i) a qualified person who has died;

(ii) a person who ceased to be a qualified person on ceasing to reside in the United Kingdom; or

(iii) the person who was the spouse or civil partner of the qualified person mentioned in sub-paragraph (i) when he died or is the spouse or civil partner of the person mentioned in sub-paragraph (ii); and

(b) he was attending an educational course in the United Kingdom immediately before the qualified person died or ceased to be a qualified person and continues to attend such a course.

(4) A person satisfies the conditions in this paragraph if the person is the parent with actual custody of a child who satisfies the condition in paragraph (3).

(5) A person satisfies the conditions in this paragraph if—

(a) he ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person;

(b) he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;

(c) he satisfies the condition in paragraph (6); and

(d) either—

(i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;

(ii) the former spouse or civil partner of the qualified person has custody of a child of the qualified person;

(iii) the former spouse or civil partner of the qualified person has the right of access to a child of the qualified person under the age of 18 and a court has ordered that such access must take place in the United Kingdom; or

(iv) the continued right of residence in the United Kingdom of the person is warranted by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was subsisting.

(6) The condition in this paragraph is that the person—

(a) is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or

(b) is the family member of a person who falls within paragraph (a).

(7) In this regulation, "educational course" means a course within the scope of Article 12 of Council Regulation (EEC) No. 1612/68 on freedom of movement for workers.

(8) A person with a permanent right of residence under regulation 15 shall not become a family member who has retained the right of residence on the death or departure from the United Kingdom of the qualified person or the termination of the marriage or civil partnership, as the case may be, and a family member who has retained the right of residence shall cease to have that status on acquiring a permanent right of residence under regulation 15."

23. The second sub-paragraph of Article 12(1), in his submission, qualifies the guarantee provided in the first sub-paragraph by limiting the right of permanent residence of those benefiting from this guarantee to those who can satisfy the conditions of Article 7(1) which is in the following terms:

"Article 7

Right of residence for more than three months

1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) are workers or self-employed persons in the host Member State; or

(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

(c) – are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

– have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or

(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c)."

24. Mr White submitted that even if the claimant does not have a right to reside under Article 12(1) she also can claim a right of residence based upon her children's nationality and drawing upon the European Court of Justice's decision in Baumbast (Case C-413/99), the children being citizens of the Irish Republic, as, apparently, they have Irish passports. He also submitted that the principle enshrined in the Baumbast decision is not predicated upon the parents with care of a child being self-sufficient. If the Department was correct, the children's right of residence would be effectively undermined.
25. Mr White also submitted that the claimant cannot be treated as a person who will pose an unreasonable burden on the social assistance system in the future, as she previously had been a "worker" and came to the United Kingdom as such. At present her ability to work is hampered by the need to care for her two young children and because of her mental health difficulties but, in Mr White's submission, these do not determine that she will be a burden on the social assistance system of the United Kingdom.
26. Further, he submitted that the conditions imposed in Article 7(1)(b) does not operate to deny the claimant a right of residence in the circumstances from this case. This is because Article 12(1) anticipates the type of problem that has arisen, and instead of using Article 7(1)(b) to deny a person the right of residence, Article 12(1) allows that person to retain the right of residence but uses Article 7(1) to curtail his or her permanent right of residence in the host Member State. (This is an argument that I do not find persuasive).
27. Mr White also submitted that, if it is not accepted that the claimant acquired a right to reside on the basis of the grounds set out above, that in the alternative the basis on which she is paid a social security benefit under United Kingdom law, namely, IS from 24 November 2004, cannot determine her European Union right to move freely within the Union (Article 17) and her freedom as a worker (Article 39) or determine her status for the purpose of the Directive. This is because these are autonomous concepts that must be interpreted in light of European Union law. In particular it was submitted that the claimant's ability to work has been adversely affected by illness. Accordingly the claimant is in a position to rely upon Article 7(3)(a) which specifically allows a Union citizen who is no longer a worker to retain the status of worker when he or she is temporarily unable to work as the result of an illness. – Article 7(3)(a).
28. It was also submitted that, even if the claimant's right of residence was dependent on that of her husband on 5 December 2005 and therefore terminated on his departure, an independent right of residence reasserted itself thereafter.
29. In addition it was also submitted that if the claimant does not have a right to reside as a "qualified person" under Article 7, that she is entitled to a right to reside by virtue of Article 18 EC (the right to move freely and reside within the territory of the Member States) the case of the English Court of Appeal case, Abdirahman v the Secretary of State for Work and Pensions [2007] EWCA Civ 657, as there is no question in the present case of the claimant being unlawfully or improperly in the United Kingdom. Also the issue of proportionality in this case is also relevant as the claimant came to Northern Ireland as a "worker", has given birth to her children here, and has remained in Northern Ireland with the intention of rearing them here even though her ex-husband has departed from the United Kingdom. She also intends to work on a full-time basis in the future but is temporarily hampered by her bout of illness.
30. Mr White specifically did not pursue an argument that was made at an earlier stage in relation to Directive 79/7EC and its alleged indirect discriminatory nature.
31. However, Mr White submitted that Article 12 EC, which prohibits discrimination on the grounds of nationality is relevant. Mr White submitted that the approach taken by the United Kingdom, in relying on the "right to residence" test, is disproportionate because it brooks of no reasonable exceptions save for that provided for in regulation 10(3), namely departure of a Union citizen "worker" where the children of the relationship are enrolled in school. Accordingly the claimant was left in an anomalous position because her children happen to be below school age when the Union citizen departed for his home country. This was something that she had no control over. Accordingly the fact that the Department had no discretion in relation to persons in the claimant's position was disproportionate and not objectively justified. Therefore, the present Regulations, in Mr White's submission, interfere with the freedom from discrimination enshrined in Article 12.
32. This case is an extreme example of the complications that can arise when deciding cases in the jurisdiction of social security. The legal issues are not straightforward. It is extremely difficult for the advocates involved in such litigation and also for the members of the judiciary who have the responsibility of deciding this type of case. It is also very difficult for the decision-makers who are required to adjudicate at the primary level. Sympathies should be given to all of us involved in this area of law and persons such as the claimant are especially deserving of consideration as they attempt to make their way through the labyrinthine complications that arise in such cases. However, bearing in mind these comments, it is my judicial responsibility to decide the issues in this case. In the circumstances I come to the following conclusions which, in my view, deal with the issues of substance in this case.
33. The claimant was a worker when she was employed by Moy Park Limited. However from 24 November 2004 until 5 December 2005 she was in receipt of IS as a lone parent and did not fulfil any of the conditions set out in regulation 6(2) of the 2006 Regulations and therefore, in my view, has not retained the status of a "worker" during that period. For the reasons stated by Mr O'Connor, the 2000 Regulations do not assist the claimant. Therefore, in my view, the tribunal has erred in law by finding that the claimant is a worker in accordance with the 2006 Regulations.
34. I accept that the term "worker … who has ceased activity" has a specific meaning as set out in regulation 5 of the 2006 Regulations and therefore does not mean someone who has merely stopped work or left the United Kingdom. Regulation 5 is specific and, in my view, there is no evidence that the claimant's ex-husband satisfied the definition set out therein. Accordingly I conclude that the claimant cannot be a "family member of a worker … who has ceased activity" under regulation 15(1)(d) of the Regulations. Accordingly I find that the tribunal has erred in law in determining that the claimant has acquired a right to reside permanently in the United Kingdom under regulation 15(1)(d) of the 2006 Regulations.
35. The tribunal also relied on regulation 5(7) of the 2006 Regulations to hold that periods of inactivity not of the person's own making or due to illness and periods of involuntary unemployment duly recorded shall be treated "as periods of activity as a worker". However, the wording of regulation 5(7) makes it clear that this provision is only applicable to the circumstances covered by regulation 5 of the 2006 Regulations. In my view Mr O'Connor is correct in his submission that the circumstances must relate to a "worker …who has ceased activity" and therefore only relate to periods of inactivity etc incurred by the claimant's husband/ex-husband. Therefore, in my view, the tribunal has erred by applying the provisions of regulation 5 of the 2006 Regulations, to the claimant rather than the claimant's husband/ex-husband.
36. I find that regulation 10(3) and (4) of the 2006 Regulations makes it clear that the claimant cannot satisfy paragraph 4 as a parent with actual custody of a child, as the children, who at the relevant time were well below school age, were not attending an educational establishment at the date their father left the United Kingdom (5 December 2005).
37. I also conclude that the claimant does not have a right to reside because her children, born on 7 April 2003 and 14 September 2004 were born in Ireland. It seems to me that Mr O'Connor is correct in submitting that Baumbast does not assist the claimant as, for it to do so, it must be demonstrated that the children have a right to reside by virtue of their birth in Northern Ireland. (In any event Baumbast concerned a child who had entered education at primary level and the European Court of Justice dealt with the issues bearing that in mind. In the present case, the claimant's children were not in full-time education, primary or otherwise). If the children do not have a right to reside in Northern Ireland it cannot be argued that the claimant can derive any concomitant right to reside through them. It seems to me that the fact that the children have apparently acquired Irish citizenship, demonstrated by the existence of passports issued by the Republic of Ireland, does not give the claimant any right to reside in Northern Ireland. In my view this conclusion is supported by the decision of Kunquian Catherine Zhu and Man Levette Chen v The Secretary of State for the Home Department (C-200/02) which seems to me to demonstrate that European law only extends a right of residence to parents of children where the parent is self-sufficient and in possession of medical insurance.
38. I also hold that the proposition that the Department's decision that the claimant does not have a right to reside is not, in law, indirectly discriminatory (and contrary to Equal Treatment Directive 79/7). Moreover, it seems to me that it is relevant that according to the European Court of Justice in cases C63/91 and C64/91 (Jackson and Cresswell) have determined that Article 3 of the Directive, which sets out which statutory schemes the Directive applies to, does not apply to a benefit such as IS.
39. I also hold that the claimant cannot succeed because of discrimination on the grounds of nationality. It is now relatively clear, since Abdirahman v Secretary of State for Work and Pensions, that Article 12 EC does not assist persons in the position of the claimant unless they have a right to reside, either on the basis of European or National law.
40. Regulation 15(1)(f) is in the following terms:

"The following persons shall acquire the right to reside in the United Kingdom permanently –

…

(f) a person who -

(i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and

(ii) was, at the end of that period, a family member who has retained the right of residence."

In the circumstances I hold that the claimant cannot fall within this provision as, if she had resided for a continuous period of five years in the United Kingdom, she would have fallen clearly within the provisions of regulation 15(1)(a) which states:

"(1) The following persons shall acquire the right to reside in the United Kingdom permanently –

(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;

…."

41. Accordingly to the interpretation Regulation (regulation 2(1)) an "EEA national" means a national of an EEA State" which means:

"(a) a member State, other than the United Kingdom;

(b) Norway, Iceland or Liechtenstein; or

(c) Switzerland".

Therefore it seems to me that regulation 15(1)(f) only applies to non-EEA nationals and cannot be relevant to the claimant.

42. In any event, in relation to decision 1, regulation 15(1)(a) does not apply to the claimant as she had come to the United Kingdom on 19 February 2002 and would have completed a period of five years on 18 February 2007. However, as the claim to benefit was made on 4 September 2006, it is clear that regulation 15(1)(a) could not apply until 18 February 2007.
43. In relation to decision 2 and decision 3, I conclude that the claimant has not resided for a period of five years (in accordance with the 2006 Regulations) as after 5 December 2005 she was neither a qualified person nor a family member of a qualified person (in accordance with regulation 6 (quoted earlier) and 7 (which defines who are family members) of the 2006 Regulations) as the claimant's husband/ex-husband left the United Kingdom on 5 December 2005. There is also nothing in the case to suggest that the claimant satisfied any of the categories set out in regulation 6 other than a short period of job seeking (8 December 2006 to 4 February 2007).
44. Therefore I conclude that the tribunal erred in law in holding that the claimant had acquired the status of a worker. Accordingly in each of the three cases (C1/08-09(IS), C2/08-09(IS) and C3/08-09(IS)) I hold that the tribunal's decisions were erroneous in point of law. I give the decisions that the appeal tribunal ought to have given, without making fresh or further findings of fact. My decisions are that in her claims for IS made on 4 September 2006, 2 May 2007 and 21 June 2007, the claimant cannot be treated as habitually resident in the United Kingdom and, in consequence, as a person from abroad, she has an IS applicable amount of NIL.

(signed) JA H Martin QC

Chief Commissioner

1 October 2008