Northern Ireland - Social Security and Child Support Commissioners' Decisions

TJ-v-Department for Communities (JSA) [2019] NICom 17

 

Decision No:  C4/11-12(JSA)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

JOBSEEKERS ALLOWANCE

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 5 July 2011

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     The decision of the appeal tribunal dated 5 July 2011 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.

 

         Representation

 

2.     In these somewhat lengthy proceedings the appellant has been represented by Mr Black of the Law Centre (Northern Ireland) and the Department by Mr Gorman of the Decision Making Services unit.  Gratitude is extended to both representatives for their detailed and constructive observations and comments, both oral and written.  This appeal was heard together with a second application in which the issues arising were related.

 

         Background

 

3.     In the Case Summary prepared for the oral hearing of the appeal before me, Mr Black set out the following factual background:

 

‘(The appellant) is a Polish national.  On 1 May 2004, Poland joined the European Union, along with nine other States and (the appellant) became a citizen of the European Union as a result.  He obtained the right to travel freely throughout the European Union on the basis of his Union citizenship.  However, the right to take up employment in other European Union states was restricted by the terms of derogations contained in the Treaty of Accession 2003.  Most of the European Union Member States at the date of Accession applied derogations to exclude nationals of the so-called “A8” countries, which included Poland, from their employment markets.  Only the United Kingdom, the Republic of Ireland and Sweden opened their employment markets to A8 nationals.  These latter countries were further permitted by the Treaty of Accession 2003 to impose conditions on access to their employment markets.

 

(The appellant) is a welder by trade.  In 2004 after Polish accession to the European Union, he travelled to Scotland and obtained employment in Edinburgh between 2004 and 2006.  He found work through two employment agencies.

 

Under the permission to impose conditions on access to their labour markets, and as a measure derogating from the Treaty of Accession, the United Kingdom implemented an “Accession State Worker Registration Scheme”.  As (the appellant) did not speak English well, he did not approach employers directly.  Instead, he sought work through recruitment agencies.  When he obtained work through the agencies he was not advised to, and did not obtain a Registration Certificate under the registration scheme during any of the time when he worked in Scotland.

 

(The appellant) travelled to Northern Ireland on 6 October 2006.  He found employment through recruitment agencies in Northern Ireland.  He worked in employment arranged through … Belfast from 13 November 2006 to 31 July 2007.  He worked in employment arranged through … between 15 August 2007 and 20 October 2007.  He worked again through … Belfast from 10 November 2007 to 10 December 2007 and he worked through … Agency from 12 December 2007 to 5 January 2008. He then worked for … from 28 April 2008 until 5 January 2009.

 

At the heart of this dispute lies the fact that only (the appellant’s) first period of employment through … was registered in accordance with the Workers Registration Scheme.  The employment commenced on 13 November 2006, so the initial period of one month would be treated as registered work.  The application for registration was received on 22 December 2006 and the Workers Registration Certificate was issued on 10 January 2007.  It is agreed as a fact that (the appellant) did not have 12 months continuous registered employment.

When (the appellant’s) employment with … ended in January 2009, he made a claim for Contribution Based JSA.  He did not pursue this due to the language barrier and bureaucracy that he found to be impenetrable.  Unfortunately he quickly became street homeless and thereafter followed a period of more than a year where he lived in the streets in destitution and was hospitalised for conditions affecting the homeless including trench foot and scabies.

 

When he contacted Law Centre NI in June 2010, we recommended that (the appellant) make fresh claims for Contribution Based JSA as well as Income Based Jobseeker’s Allowance.  After we succeeded in securing a correction to (the appellant’s) national insurance record to reflect the fact that his previous employers had not paid national insurance contributions, which had been deducted from his wages, Contribution Based Jobseeker’s Allowance was awarded and backdated for the entire period relevant to this appeal.  It is a material fact that (the appellant) was in receipt of Contribution Based JSA and the care component of Disability Living Allowance during the period relevant to this appeal.

 

This appeal duly concerns (the appellant’s) entitlement to an amount of IB JSA for the period to reflect the fact that he was entitled to a Disability Premium as he was in receipt of Disability Living Allowance, having satisfied the ordinary residence test for that benefit.’

 

         The submissions of the parties

 

4.     In his Case Summary, Mr Black made the following submissions:

 

‘The tribunal erred in finding that the Statutory Scheme to define the right to reside for the purpose of claiming Jobseeker’s Allowance is the product of a valid derogation from the Treaty.

 

On the facts of the case (the appellant) is an EU citizen, who comes within Article 3 (Beneficiaries) of Directive 2004/38.  At the time of his claim for Income based JSA he had resided in the UK for almost five years without recourse to social assistance.  He had worked and paid tax and national insurance for approximately four out of those five years.  This degree of economic integration is evidenced by the fact that he was entitled to rely on national insurance contributions paid in the UK to access CJSA, which is a social security benefit covered by EC Regulation 883/2004.  However (the appellant) has been refused access to Income based JSA due to the operation of regulation 85A and Schedule 4 para 14 of the Jobseeker’s Allowance Regulations (NI) 1996, which provide that a person defined as a Person From Abroad will have an applicable amount of nil.

 

Regulation 85A requires careful consideration.  A person who retains worker status pursuant to Article 7(3) of the Directive will have a right to reside (85A (4)(c).  Regulation 85A(4)(f)(i) refers to regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004 and it is these provisions that purport to derogate from (the appellant’s) possible right to reside as a person who retains worker status under Article 7(3) of the Directive.

 

(The appellant’s) submission was that he had obtained a right to reside as a worker while working in accordance with the Workers Registration Scheme at Industrial Temps.  He had lawfully accessed the labour market of the UK and was covered at that time by Article 7 of Directive 2004/38 which provides for a right of residence for longer than three months for workers.  After this period of registered employment ended it is common case that (the appellant) continued to work without further registration until January 2009.  During this period he lawfully paid tax and national insurance and this is reflected in his entitlement to Contribution based JSA for the relevant period.

 

However regulation 5(2) of the Accession (Immigration and Worker Registration) Regulations 2004 provides that an accession state worker requiring registration shall be treated as a worker only during the period in which he is working for an authorised employer.  Regulation 5 (3) provides that reg 6(2) of the 2006 regulations shall not apply to an accession State worker requiring registration who ceases to work.

 

This raises an important issue of EU law.  The right of free movement of workers is a fundamental right and as such should be given a broad interpretation and application.  The UK did not choose to close its labour market to Polish nationals but rather to permit them access to the labour market under national provisions that monitored and did not restrict access of Polish nationals to the UK labour market.  Reg 5(2) clearly provides that (the appellant) was treated as an EU worker during the period of his employment in registered work.  At that time he was covered by the provisions of Article 7 of Directive 2004/38.  The issue is whether (the appellant’s) failure to complete 12 months employment under the Workers Registration Scheme means that he not able to rely on the provisions of Article 7(3)(b) of Directive 2004/38 in his circumstances.

 

The Workers Registration Scheme (regulation 5(3) Accession (Immigration and Worker Registration) Regulations 2004 purports to derogate from Article 7(3)(b) of Directive 2004/38 and provides that even if a claimant is in the position of Article 7(3)(b), he will not retain the status of worker and the right to reside under Directive 2004/38.

 

It is submitted that this derogation is not covered by the transitional arrangements on free movement of workers (that allow Member States to derogate from EU law on residence “to the extent necessary” for the application of the transitional arrangements) because the UK did not restrict access to its labour market that might make such a derogation necessary.

 

It is a settled principle of EU case law that fundamental principles are to be interpreted broadly and that derogations are to be interpreted and applied narrowly. (see para 5 CIS/0647/2009).

 

It is submitted that Article 24 of Directive 2004/38 is relevant to the determination of this dispute.  Once (the appellant) came within the terms of Directive 2004/38, he was entitled to rely on the right to equal treatment with UK nationals which is enshrined in Article 24 of the Directive.  The operation of regulations 4 and 5(2) and 5(3) is contrary to the equal treatment provisions in Article 24 of Directive 2004/38.

 

In the circumstances of this case it is submitted that regulation 5(2) of the Accession (Immigration and Worker Registration) Regulations 2004 is ultra vires and that the first tier appeal tribunal erred in its finding that the right to reside scheme is a valid derogation from the Treaty.

 

The tribunal erred in failing to make findings on the argument raised by the Appellant that he had a right to reside at the relevant time under Articles 20 and 21 of the Treaty on the Functioning of the EU.

 

The Court of Justice of the EU has upheld on a number of occasions the right to reside in the territory of another Member State based upon citizenship of the Union.  (See Baumbast C-413/99 paras 84 – 91; Zambrano C-34/09 paras 41 and 42)

 

It is accepted that (the appellant) was at the relevant time an EU citizen and that he was entitled to cite a right to reside under Articles 20 and 21 of the TFEU. (The appellant) had resided in the UK for almost five years.  During four of these years he had worked and paid tax and national insurance.  He had economically integrated in the UK and this was evidenced by his ability to satisfy the tight national insurance conditions for entitlement to CJSA.

 

It is submitted that if the Commissioner finds that the provisions of regulation 5 (2) and (3) of the Accession (Immigration and Worker Registration) Regulations 2004 are not ultra vires, that he may nonetheless go on to find that (the Appellant) had a right to reside in the particular facts of this case under Article 20/21 of the TFEU.

 

The tribunal erred in finding that the operation of the right to reside rule in Regulation 85A of the Jobseeker’s Allowance Regulations (NI) 1996 does not unlawfully discriminate on the basis of nationality.

 

It is common case that the right to reside test operates in an indirectly discriminatory way against EU nationals.  The issue is whether that discrimination is objectively justified.

 

It is submitted that the tribunal erred in finding that, “Income-based Jobseeker’s Allowance is a non-contributory benefit like the State Pension Credit, and comes within the scope of Patmalniece.”

 

The tribunal has erred by failing to address the material differences between State Pension Credit (the benefit that was claimed in Patmalniece) and Income-based Jobseeker’s Allowance, which was claimed in this case as an addition to Contribution based Jobseeker’s Allowance.  Jobseeker’s Allowance in contrast to State Pension Credit is a benefit for persons active in the labour market and actively seeking work.

 

The tribunal correctly refers to the Supreme Court’s finding that indirect discrimination was objectively justified in the Patmalniece case in order to protect the UK’s resources against resort to benefit by those who are not economically or social integrated.  However, it is submitted that the tribunal has erred by failing to address the issue or to provide reasons for its decision as to how such indirect discrimination against a person demonstrating economic and social integration such as demonstrated by (the Appellant) can be objectively justified.

 

The tribunal erred in law by failing to consider the effect of the United Nations Convention on the Rights of Persons with Disabilities of the decision to refuse the appellant IB Jobseekers Allowance.

 

The UK ratified this International Convention in 2009 and it is submitted that Article 28 of the Convention on the Rights of Persons with Disabilities may be relevant to the adjudication of this appeal.  Article 28 provides for a right to an adequate standard of living and social protection for those with disabilities.  The appellant was in receipt of Disability Living Allowance at this time.  It is undisputed that a UK national in the Appellant’s circumstances would have been entitled to the disability premium of income based jobseeker’s allowance and it is submitted that the refusal of disability premium in these circumstances is unlawful discrimination.  The UK patently did not consider the appellant’s right to an adequate standard of living.  This was evidenced by the fact that he fell into desperate poverty, including rough sleeping, by the refusal of the UK government to provide adequate social protection.

 

Outcome sought

 

The Commissioner is requested to find that regulations 4 and 5(2) and 5(3) of the Accession (Immigration and Worker Registration) Regulations 2006 are ultra vires and should not be applied in this case so as to exclude (the appellant) from entitlement to Income based Jobseeker’s Allowance under regulation 85A of the Jobseekers Allowance Regulations (NI) 1996.  The Commissioner is asked to find that (the appellant) had a right to reside under Article 7(3)(b) of Directive 2004/38/EC.

 

Further, should the Commissioner find that regulations 4 and 5(2) and 5(3) of the Accession (Immigration and Worker Registration) Regulations 2006 are not ultra vires, we would ask that a decision be made that it is discriminatory based on nationality.  We assert that this case is to be distinguished from other cases such as Patmalniece where it has been found that the Right to Reside test was discriminatory but that it was justified as proportionate to the aim of “protecting the public purse”, as in that case the applicant was not claiming a benefit designed to facilitate access to the labour market.

 

The reasoning behind the UK’s decision to add the Right to Reside test to EEA nationals was ostensibly to prevent EEA nationals from so called “benefit tourism” and being able to avail of a state welfare system without having made any contributions to that system.  (The appellant) had worked and made contributions to the social security system for a number of years before making any claim to benefits so we could submit that Patmalniece does not apply in (the appellant’s) circumstances.

 

Furthermore, there is case law that suggests that there has to be an exception in right to reside tests for those who have achieved the necessary degree economic and/or social integration. In CIS/3182/2005 Commissioner Rowland stated the following, at paragraph 14 of his decision:

 

14. I accept Mr Samuel’s point that the justification accepted in CIS/3573/2005 may not apply in all cases.  Justification of unequal treatment requires answers to two questions: whether the provision under consideration implements a legitimate social policy and whether the method of implementing the social policy is proportionate having regard to the desirability of both that policy and the avoidance of covert discrimination.  It is one thing to apply a “right to reside” test to put pressure on people to leave the United Kingdom when they have never been economically active here and have not been here for very long but it may be less clear that the blanket application of the test represents a proportionate response to the problem that concerns the Government if it results in pressure to leave the United Kingdom being placed on people who have been economically active in the past or have been established here for many years but for some reason or other have not acquired a permanent right of residence.  Indeed, this has been recognised to some extent in new legislation that has come into force this year, although the approach that has been taken has been to clarify, or extend, the right to reside in the United Kingdom rather than to create exceptions to the application of the test.

 

In Commission v UK EUECJ C-308/14 it was found that right to reside test was permitted in Child Benefit and Child Tax Credit awards and was not a breach of EC Reg 883/2004 and that even though discriminatory on nationality grounds was legitimate in pursuit of the host state protecting the public purse.  Again, we seek to differentiate our case from this in that IB JSA is a benefit designed to facilitate access to the labour market, a much more fundamental principle of EU law.

 

The facts which I identify as differentiating this case are:

 

1.    This appeal relates to entitlement to the disability premium of Income Based Jobseeker’s Allowance during a period when (the appellant) was in receipt of contribution based jobseeker’s allowance;

 

2.    The appeal relates to a short closed period of less than six months from 21 June 2010 to 16 December 2010;

 

3.    (The appellant) was in receipt of the middle rate of the care component of Disability Living Allowance during that period;

 

4.    The benefit in question was jobseeker’s allowance and was designed to facilitate access to the labour market.’

 

5.     Mr Gorman prepared a Case Summary which addressed the common arguments raised by Mr Black in the two cases which were heard together and the arguments which were discrete to each individual case.  His response to the common arguments was as follows:

 

‘The grounds of appeal overlap on some issues however there are also grounds submitted which are individual to each Appellant.  The Department will first address the common grounds of both …

 

1)    The Act of Accession 2003 and the power to derogate from Article 7(3) of Directive 2004/38 (both appeals).

 

The Law Centre submits that the Appellants have a right to reside under Article 7(3) of Directive 2004/38 EC (2004/38) and that regulation 5(2) of the 2004 Regulations is ultra vires if it excludes that right.

 

The Treaty establishing the European Union was amended to incorporate the accession of the new Member States on 01.05.04 (see Article 24 to the Act of Accession 2003 as well as Annex V regarding the Czech Republic and Annex XII regarding Poland). This amendment allowed the existing Member States who were willing to open their labour markets to A8 nationals to derogate from certain provisions of Council Directive 68/360 (68/360) and from Articles 1-6 of Regulation EEC 1612/68 (1612/68) regarding the free movement of workers within the European community.

 

2004/38 was enacted with a view to remedying the piecemeal approach to the right of free movement and residence.  In so doing it repealed 68/360 in its entirety (Article 38.2). However 2004/38 also provided that any reference to 68/360 is to be construed as being made to 2004/38 (see Article 38.3).  It is respectively submitted therefore that any reference to 68/360 in the Act of Accession 2003 must be construed as a reference to 2004/38, which necessarily has the effect of allowing Member States to derogate from those provisions of 2004/38 which cannot be disassociated from those of 1612/68 (see paragraph 9 of both Annex V and Annex XII to the Accession Treaty).

 

The UK Government used its right to derogate when it introduced the 2004 Regulations.  Regulation 5(2) of the 2004 Regulations provided that an A8 national shall only be treated as a ‘worker’ during a period in which he is working for an authorised employer.  It is submitted therefore that the Appellants could only be considered to have been ‘workers’ while they were in registered employment in accordance with regulation 5(2) of the 2004 Regulations.

 

The Department further submits that as regulation 6(2) of the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations) shall not apply to an accession State worker requiring registration then neither Appellant could retain the status of a ‘worker’ whilst unemployed (see regulation 5(3) of the 2004 Regulations).  This is because both Appellants remained A8 nationals requiring registration at the dates of their claims as neither of them had completed 12 continuous months of registered employment.

 

In considering the position of A8 nationals the House of Lords decided in Zalewska (UKHL 67, paragraphs 16 and 29) that a right to reside exists only during the period while an A8 national is working for an authorised employer, and this continued to be the case until he has worked for an authorised employer without interruption for a period of 12 months.  It was further held that access to Community rights whilst resident in the UK depended on satisfying the national measures governing access to its labour market.

 

Since the Department’s original submissions the CJEU has issued its decision in Prefeta C-618/16.  The Department submits that the Court’s conclusion in Prefeta supports the Department’s position:

 

“Chapter 2 of Annex XII to the Act concerning the conditions of accession of the Czech Republic… the Republic of Poland …. and the adjustments to the Treaties on which the European Union is founded, must be interpreted as permitting, during the transitional period provided for by that act, the United Kingdom of Great Britain and Northern Ireland to exclude a Polish national, such as Mr Rafal Prefeta, from the benefits of Article 7(3) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, when that person has not satisfied the requirement imposed by national law of having completed an uninterrupted 12-month period of registered work in the United Kingdom.” 

 

2)    The ‘right to reside test’ contained in regulation 85A of the Jobseeker’s Allowance Regulations (Northern Ireland) 1996 (the JSA Regulations) is unlawfully discriminatory in light of the Appellants social and economic integration (both appeals).

 

The Supreme Court considered the right to reside test in Patmalniece [2011] UKSC 11. The Supreme Court decided that Regulation 2 of the State Pension Credit Regulations 2002 (the 2002 Regulations), commonly referred to as the ‘right to reside test’, was indirectly discriminatory but that it was objectively justified as it is the means by which economic and social integration are measured and access to social security benefit allowed. Lord Hope stated:

 

“46. … The purpose of regulation 2 of the 2002 Regulations is to ensure that the claimant has achieved economic integration or a sufficient degree of social integration in the United Kingdom or elsewhere in the Common Travel Area as a pre-condition of entitlement to the benefit… The Secretary of State’s justification lies in his wish to prevent exploitation of welfare benefits by people who come to this country simply to live off benefits without working here.  That this is a legitimate reason for imposing the right of residence test finds support in Advocate General Geelhoed’s opinion in Trojani v Centre Public d’Aide Sociale de Bruxelles [2004] 3 CMLR 820, para 70 that it is a basic principle of Community law that persons who depend on social assistance will be taken care of in their own Member State.

….

 

48. The justification is founded on the principle that those who are entitled to claim social assistance in the host Member State should have achieved a genuine economic tie with it or a sufficient degree of social integration as a pre-condition for entitlement to it. In Kaczmarek v Secretary of State for Work and Pensions [2008] EWCA Civ 1310, [2009] 2 CMLR 85, para 2, Maurice Kay LJ said that if a citizen of one Member State who is lawfully present in another Member State can, without difficulty and whilst economically inactive, access the social security benefits of the host State, the implications for the more prosperous Member States with more generous social security provisions are obvious. The rules that regulation 2 of the 2002 Regulations lays down are intended to meet this problem…”

Regulation 2 of the 2002 Regulations states:    

    

The State Pension Credit Regulations 2002

 

(2) For the purposes of treating a person as not in Great Britain in paragraph (1), no person shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland if he does not have a right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.”

 

(NOTE: The Regulation 2 quoted above is from the Great Britain 2002 Regulations as this was what was being considered by the Supreme Court.  The Northern Ireland equivalent would be Regulation 2 of the State Pension Credit (Northern Ireland) Regulations 2003 which substitute the words ‘Northern Ireland’ for the words ‘Great Britain’ but are otherwise identical).

 

The right to reside test contained in the JSA Regulations (as at the date of claim) is almost identical in wording to that of the 2002 Regulations, as can be seen below:

 

The Jobseeker’s Allowance Regulations (Northern Ireland) 1996

 

85A. —

....

 

(2) No claimant shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless he has a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland other than a right to reside which falls within paragraph (3).

 

It would be the Department’s submission that this judgment is also relevant to JSA(IB), for which the right to reside test is identical for all practical purposes.                             

Lord Hope considered the right to reside test in relation to indirect discrimination and justification and stated:

 

50. The principle on which the Secretary of State’s justification relies underlies the EU rules as to whether, and if so on what terms, a right of residence in the host Member State should be granted.  This is the issue to which Council Directive 90/364 EEC is directed.  In that context there is no prohibition on discrimination on grounds of nationality under EU law.  So there is no need to be concerned with the question whether the approach that is taken there can be justified on grounds that are independent of nationality.  Three questions then arise.  The first is whether the Secretary of State’s justification can be regarded as relevant in the present context.  The second is whether it is a sufficient justification given the effect of the rules that regulation 2 of the 2002 Regulations lays down. The third is whether it is independent of the nationality of the person concerned.

 

51. The first and second questions can be taken together.  The justification is relevant because the issues that arise with regard to the grant of a right of residence are so closely related to the issues that are raised by the appellant’s claim to state pension credit.  They are, at heart, the same because they are both concerned with a right of access to forms of social assistance in the host Member State.  It is also a sufficient justification, in view of the importance that is attached to combating the risks of what the Advocate General in Trojani v Centre Public d’Aide Sociale de Bruxelles [2004] 3 CMLR 820, para 18 described as “social tourism”.

 

52. As for the third question, the answer to it depends not just on what the Secretary of State himself said in his statement (see paras 37-38, above), but also on the wording of the regulation and its effect. They show that the Secretary of State’s purpose was to protect the resources of the United Kingdom against resort to benefit, or social tourism by persons who are not economically or socially integrated with this country.  This is not because of their nationality or because of where they have come from.  It is because of the principle that only those who are economical or socially integrated with the host Member State should have access to its social assistance system.  The principle, which I take from the decision in Trojani, is that it is open to Member States to say that economical or social integration is required.  A person’s nationality does, of course, have a bearing on whether that test can be satisfied.  But the justification itself is blind to the person’s nationality.  The requirement that there must be a right to reside here applies to everyone, irrespective of their nationality.

 

53. For these reasons I would hold that the Secretary of State has provided a sufficient justification, and that it is independent of the nationality of the person concerned.  It follows that the indirect discrimination that results from regulation 2 of the 2002 Regulations was not made unlawful by article 3(1) of Regulation 1408/71.

 

Therefore it is submitted that in accordance with Patmalniece the right to reside test contained in the JSA Regulations is indirectly discriminatory.  However, as that indirect discrimination is objectively justified on grounds that are independent of nationality the Appellants have not been unlawfully discriminated against.

 

In Spiridinova [2014] NICA 63 the Northern Ireland Court of Appeal decided that a claimant was not exempt from satisfying the right to reside test by demonstrating a sufficient degree of economic or social integration in the UK.  The Court of Appeal followed the Supreme Court’s decision in Patmalniece and stated:

 

[30]      .... In that case the Secretary of State argued that the purpose of Regulation 2 of the 2002 Regulations, the provision that no person was to be treated as ‘habitually resident’ in the UK if he does not also have a ‘right to reside’ in the UK, was to ensure that the individual had ‘achieved economic integration or a sufficient degree of social integration in the United Kingdom.’   In other words, it was the ‘right to reside’ which was to determine that a sufficient degree of integration had been achieved.   Read in its proper context the submission made by the Secretary of State in Patmalniece and referred to by Lord Hope at paragraph 42 of the judgment was to the effect that the requirements of Regulation 2 of the 2002 Regulations were objectively justifiable on the basis that compliance with such requirements would be indicative of a sufficient degree of economic and/or social integration in the UK to effectively prevent the development of ‘benefit tourism’.... The question was not whether an individual should be able to establish some undefined degree of economic and/or social integration as an exception to having to comply with the ‘right to reside’ requirement, a criterion which could clearly give rise to a multiplicity of expensive and time consuming litigation, but whether compliance with the ‘right to reside’ requirement was a legitimate means of confirming the necessary standard of integration.  As Lord Hope himself pointed out at paragraph 52 of his judgment with regard to the wording of the regulation and its effect:

 

“... they showed that the Secretary of State’s purpose was to protect the resources of the United Kingdom against resort to benefit or social tourism by persons who are not economically or socially integrated with this country...” 

 

The Department submits that the Court of Appeal’s decision in Spiridinova supports the Department’s position by following the Supreme Court’s decision in Patmalniece and it is therefore of no assistance to the Appellants.  Furthermore, the Law Centre accepted in its letter dated 03.11.14 that if the Court of Appeal decision in Spiridinova stood then they would no longer be able to rely on this ground of appeal.  As the Court of Appeal’s decision is no longer being appealed to the Supreme Court the Department agrees that this ground of appeal is no longer of use to the Law Centre.’

 

6.     In connection with the grounds of appeal which were specific to this appellant’s case, Mr Gorman made the following submissions:

 

‘The Tribunal failed to address (the appellant’s) grounds that he had a right to reside based on Articles 20 and 21 of the Treaty on the Functioning of the European Union (TFEU)

 

The Department submits that the Tribunal did address the Appellant’s argument regarding Articles 20 and 21 TFEU which relate to citizenship of the European Union, although it did not mention them by name in its statement of reasons:

 

“Is there a right to reside based on citizenship?

 

The general acceptance of the importance of citizenship, and the conclusion that there is a right of residence based on citizenship rather than the right to free movement (Zambrano v ONEM 2010) does not of itself detract from the very specific framing of rights for the purpose of claiming JSA, set out above.  That scheme was drafted for a particular purpose within the scope of the derogation and is unaffected.  The scheme does not prevent (the Appellant) from actually residing in the UK.”

 

The Department submits that the Tribunal’s reference to ‘citizenship’ is a clear reference to Article 20 (formerly Article 17) and Article 21 (formerly Article 18) of TFEU.

 

It is relevant to the proceedings that the CJEU considered the concept of citizenship and residence where it was held (see Baumbast and, R v Secretary of State for the Home Department, C413/99, para 85; Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department, C200/02, paras 26 and 27) that the  “ …right of citizens of the Union to reside in another Member State is recognised subject to the limitations and conditions imposed by the Treaty and by measures adopted to give it effect…” (my emphasis).

 

The Court of Appeal in England and Wales also considered Article 21 TFEU in Kaczmarek [2008] EWCA Civ 1310 holding that it cannot by itself furnish a right to reside in contradiction of a Directive.  Therefore Article 21 cannot create a right to reside where limitations set out in 2004/38 and the Accession Treaty 2003 prevents it.

 

The Law Centre also sought to rely on the CJEU judgment in Zambrano C-34/09 however it can be distinguished from the present case and is therefore of no assistance to the claimant.  It is submitted that neither (the appellant) nor his children can be said to have been deprived ‘of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen’.  Nor can it be argued that (the Appellant) has been deprived of his “…right to move and reside freely within the territory of the Member States, or any other right conferred …by virtue of [his] status as a Union citizen (see McCarthy, C-434/09).

 

(The appellant) may rely on Article 28 of The Convention on the Rights of Persons with Disabilities (the Convention)

 

The Department respectfully submits that in relation to United Nations Convention rights it is relevant to note what LJ Lloyd stated at paragraph 35 et al of Abdirahman [2007] EWCA Civ 657:

 

35 In any event, the relevance of an international treaty to the interpretation of domestic legislation is limited.  Diplock LJ said in Salomon v Commissioners of Customs & Excise [1967] 2 QB 116 at 143:

 

“The convention is one of those public Acts of State of Her Majesty’s Government of which HM judges must take judicial notice if it be relevant to the determination of a case before them, if necessary informing themselves of such acts by inquiry of the appropriate department of Her Majesty’s Government.  Where by a treaty Her Majesty’s Government undertakes either to introduce domestic legislation to achieve a specified result in the United Kingdom or to secure a specified result which can only be achieved by legislation, the treaty, since in English law it is not self-operating, remains irrelevant to any issue in the English courts until Her Majesty’s Government has taken steps by way of legislation to fulfil its treaty obligations.  Once the government has legislated, which it may do in anticipation of the coming into effect of the treaty as it did in this case, the court must in the first instance construe the legislation, for that is what the court has to apply.  If the terms of the legislation are clear and unambiguous, they must be given effect to whether or not they carry out Her Majesty’s treaty obligations, for the sovereign power of the Queen in Parliament extends to breaking treaties (see Ellerman Lines Ltd v Murray), and any remedy for such a breach of an international obligation lies in a forum other than Her Majesty’s own courts.  If the terms of the legislation are not clear, however, but are reasonably capable of more than one meaning, the treaty itself becomes relevant, for there is a prima facie presumption that Parliament does not intend to act in breach of international law, including therein specific treaty obligations; and if one of the meanings which can reasonably be ascribed to the legislation is consonant with the treaty obligations and another or others are not, the meaning which is consonant is to be preferred.  Thus, in case of lack of clarity in the words used in the legislation, the terms of the treaty are relevant to enable the court to make its choice between the possible meanings of these words by applying this presumption.”

 

36 The present case is not one (unlike Salomon) in which the legislation to be construed was enacted in order to give effect to the treaty obligations in question.  In those circumstances a passage from the speech of Lord Neuberger in Boake Allen Ltd v. HMRC [2007] UKHL 25 at paragraph 51 is relevant:

 

“Mr Aaronson also relied on what Diplock LJ said in Salomon v Comrs of Customs and Excise [1967] 2 QB 116, 143, to the effect that, where a statutory provision was “not clear” and was “reasonably capable of [bearing] more than one meaning”, the court should favour “the meaning which is consonant” with the UK’s treaty obligations.  This principle is of less weight in a case such as the present where there is no question, as in Salomon, of the legislative provision in issue, namely section 788 of the 1988 Act, having been enacted to give effect to a specific treaty obligation.  In this case, section 788, while enacted to enable the UK’s treaty obligations under DTCs generally to have effect in domestic law, was plainly not designed to give effect to any specific obligation or even any specific Convention.  Nonetheless, the point would have some force here on the counter-factual hypothesis that the claimants succeed on the first issue.” 

(my underlining)

 

International treaties such as the Convention are agreements on specific international aspirations and have no direct legal effect in their own right.  In order to give legal effect to such a treaty within the UK specific legislation would be required and, as stated above, it would be that legislation which would take priority, rather than the treaty, and the treaty itself would only become relevant if the domestic legislation was ambiguous.  The Department submits therefore that the Convention has no effect on (the appellant’s) appeal as any breach of Convention rights would not create a right to benefit where the domestic conditions of entitlement have not been satisfied.’

 

7.     At the oral hearing of the appeal, Mr Black and Mr Gorman were provided with a copy of the decision of Upper Tribunal Judge Gamble in RJ v Secretary of State for Work and Pensions ([2012] AACR 28, [2011 UKUT 477 (AAC) (‘RJ’)).  Mr Black was invited to provide a further written submission on the potential application of the principles in RJ to the issues arising in the appeal.  Mr Black’s further submission was as follows:

 

‘With respect to the Upper Tribunal in RJ, we state that it was incorrectly decided, should not be followed, is not directly relevant to the circumstances of (these) cases … and is in any case not binding on a Social Security Commissioner in Northern Ireland.

 

RJ concerns the application for Income Based Jobseekers Allowance by a Polish National and Citizen of the European Union.

 

The background facts of the case in RJ are unclear but it appears that RJ was not a worker in the UK prior to making a claim to JSA.  One can only assume then that their level of social and economic integration in the UK was minimal if it existed at all.

 

The terms of appeal in RJ also appear to be that the appellant was seeking to claim JSA as someone seeking self-employment.  The grounds of appeal are therefore of limited relevance to the circumstances of (the present cases).

 

The facts of RJ can be distinguished from (the present cases) as both (claimants) had lived and worked for well over a year in the UK.  (The appellant’s) level of integration was so great that he was actually entitled to Contributions Based Jobseekers Allowance and shortly after gained permanent residence in the UK.

 

This difference is important as in paragraph 12 of the Judgement in RJ the Upper Tribunal references the case of Patmalniece and goes on to state that the Right to Reside test:

 

“amounted to indirect but not direct discrimination on the ground of nationality.  However the Supreme Court, by a majority of four to one, held that that discrimination was justified because the right to reside test had the legitimate purpose of ensuring that a claimant had achieved economic or social integration in the United Kingdom as a pre-condition of entitlement to benefit and that that justification was relevant, sufficient and independent of the issue of nationality.”

 

The Upper Tribunal judge in RJ was dealing with a case where it appears the applicant had little to no economic or social integration in the UK, in contrast to that of (these claimants) and so their legal rights to claim JSA should be considered in different contexts.

 

It should also be noted that there is insufficient reference in the decision of the Upper Tribunal on the main issue of distinction raised by Law Centre NI in (these cases).  This distinction being between JSA as a benefit facilitating access to the labour market, and other ‘social assistance’ dealt with in cases such as Patmalniece (Pension Credit), Spiridonova (Child Benefit) or Zalewska (Income Support).

 

Once again we point out the distinction already made in EU law between benefits facilitating access to the labour market and ‘social benefits’ (See para 45 Case C-22/08 Vatsouras):

 

“Benefits of a financial nature which, independently of their status under national law, are intended to facilitate access to the labour market cannot be regarded as constituting ‘social assistance’ within the meaning of Article 24(2) of Directive 2004/38.”

 

Although some limited reference is made in para 15(c) of RJ to ‘benefits of a financial nature intended to facilitate access to the labour market’.  It goes no further than to suggest that, following the decision in Collins v SSWP [2006], other requirements may be imposed on a jobseeker other than merely ‘seeking work’.  This could include an additional means of establishing a genuine link between an applicant for jobseeker’s allowance and the United Kingdom employment market.  In the case of RJ it is unclear whether the applicant has met such an additional criteria, however we would submit that (these claimants) certainly have.

 

We therefore state that the only way that decisive clarification can be made in the issues raised by (these claimants) is a reference to the Court of Justice of the European Union.

 

On a related point which calls the judgement in RJ into question, we would also like to point out that at least one aspect of the decision in RJ has already been shown to be incorrect and overturned by the recent decision of the ECJ in case C‑442/16 Florea Gusa.  RJ in the summary of it’s judgement states that in relation to Directive No. 2004/38/EC:

 

Article 7.3(b) and (c) applied only to “workers” and not to “self-employed persons”. The claimant could therefore only succeed in his appeal by establishing that he was self-employed at the date of claim.

 

However, Gusa has decided that:

 

“Article 7(3)(b) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that a national of a Member State retains the status of self-employed person for the purposes of Article 7(1)(a) of that directive where, after having lawfully resided in and worked as a self-employed person in another Member State for approximately four years, that national has ceased that activity, because of a duly recorded absence of work owing to reasons beyond his control, and has registered as a jobseeker with the relevant employment office of the latter Member State.”

 

We therefore submit that if one particular strand of the judgement of RJ has been shown to be incorrect and over-ruled in this way by the ECJ, then it also calls into question the correctness and the validity of the judgement in its entirety.  We state that, at the very least, legal surety demands a referral to the ECJ for further clarification.

 

Conclusion

 

It is submitted that the Social Security Commissioner disregard the decision of RJ v SSWP for the purposes of deciding whether a referral to the Court of Justice of the European Union in the above cases of (these claimants) is necessary for the following reasons:

 

(1)  The decision is that of an Upper Tribunal in Great Britain and, whilst persuasive, is not binding on a Social Security Commissioner in Northern Ireland.

 

(2)  The decision of the Upper Tribunal in RJ is not good law.  It does not provide sufficient reasoning why it applied the decision in Patmalniece, which is relation to non-work related social assistance (Pension Credit), to the applicant in RJ for IB JSA which is a benefit designed to facilitate access to the labour market, one of the fundamental four freedoms of the European Union.

(3)  The background facts of (these) cases and in particular their personal circumstances, work history and level of social and economic integration are sufficiently differentiated from the circumstances of the claimant in RJ in order to conclude that RJ should not be applied.

 

(4)  One aspect of the decision in RJ has already been shown to be incorrect and has been overturned by the decision of the ECJ in Florea Gusa.  This calls into question the correctness and the validity of the entirety of the judgement of RJ v SSWP and at the very least demands clarity in the form of a reference to the Court of Justice of the European Union.’

 

8.     Mr Gorman made the following submission in response:

 

‘The Department accepts that RJ is not binding case law in Northern Ireland however as a reported decision of the Upper Tribunal in Great Britain it is highly persuasive.  The Department submits that RJ has direct relevance to (these) appeals … due to the Upper Tribunal’s consideration of the right to reside test, the Supreme Court’s decision in Patmalniece [2011] UKSC 11 and the applicability of that decision to claims made to income-based Jobseeker’s Allowance, as is the case here.  The Department would also like to highlight that even if the self-employed aspect of RJ has been overtaken by subsequent case law that does not negate the entire decision and that the findings in respect of the right to reside test remain valid.  On that basis the Department respectfully submits that the Commissioner follows the decision in RJ.’

 

         The relevant legislative background

 

9.     The assessment of entitlement to income-based jobseeker’s allowance is by way of the calculation of a claimant’s applicable amount under articles 3(4) and 5 of the Jobseekers (Northern Ireland) Order 1995 (‘the 1995 Order’).  The applicable amounts are set by regulations made under article 6(5) of the 1995 Order.  Article 6(12) of the 1995 Order permits the fixing of an applicable amount of nil by such regulations.

 

10.   An applicable amount of nil is fixed for ‘persons from abroad’ by paragraph 14 of Schedule 4 to the Jobseeker’s Allowance Regulations (Northern Ireland) 1996 (‘the 1996 Regulations’).

 

11.   Regulation 85(4) of the 1996 Regulations inter alia provides:

 

‘Person from abroad has the meaning given in regulation 85A.”

 

12.   Regulation 85A provided, so far as relevant as at the date of the decision under appeal, as follows:

 

‘85A. – (1) ‘Person from abroad’ means, subject to the following provisions of this regulation, a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.

 

(2) No claimant shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless he has a right to reside in (as the case may be) the United Kingdom, the Channel Irelands, the Isle of Man or the Republic of Ireland other than a right to reside which falls within paragraph (3).’

 

13.   The appellant did not fall into any of the categories of person in paragraph (3).

 

14.   In paragraph 4 of the decision of the Court of Appeal in The Commissioners for Her Majesty’s Revenue and Customs v Aiga Spiridonova ([2014] NICA 63, (‘Spiridonova’), Lord Justice Coghlin stated:

 

‘In May 2004 Latvia became a member of the European Union and on 1 May 2004 the Accession (Immigration and Worker Registration) Regulations 2004 (“the A8 Regulations”) came into force.  “A8” referred to eight of the ten states then being granted entry into the EU and the Regulations established a Workers’ Registration Scheme (“WRS”) by means of which nationals of a relevant Accession State could register for employment in the United Kingdom.  Latvia was a relevant Accession State for the purpose of the Regulations.  The two accession states that were not made subject to the A8 Regulations because of their relatively small size were Cyprus and Malta.’

 

15.   Substituting ‘Poland’ for ‘Latvia’ the explanation in paragraph 4 is applicable in the instant case.  In paragraphs 8 to 10, Coghlin LJ added the following:

 

‘Regulation 13 of the Immigration (European Economic Area) Regulations 2006 (the “Immigration Regulations”) provides that an EEA national is entitled to reside in the United Kingdom for a period not exceeding three months beginning on the day on which he is admitted to the United Kingdom provided that he holds a valid national identity card or passport issued by an EEA State.  Regulation 14(1) provides that a “qualified person” is entitled to reside in the United Kingdom for so long as he remains a qualified person.  The definition of “qualified person” appears in Regulation 6(1) as follows:

 

“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.”

 

The A8 Regulations provided for a system of registering accession State workers during the accession period.  Regulation 7 provided that the requirement for an accession State worker to be authorised to work, the Workers Registration Scheme (“WRS”), took effect by way of derogation from Article 39 (subsequently Article 45 TFEU) of the European Community Treaty on freedom of movement for workers within the Community.  Regulation 5 (1) provided that the Immigration Regulations 2000 (later the 2006 Immigration Regulations) should apply to a national of a relevant Accession State subject to the modifications set out in the A8 Regulations and Regulation 5 (2) provided that for an accession State worker to be treated as a ‘worker’ and, hence, a ‘qualified person’ with a right of residence the employment would have to be registered in accordance with the WRS.  The accession State worker requiring registration could only be authorised to work in the UK for an authorised employer.  Regulation 5(2) stated that:

 

“(2)…an accession State worker requiring registration shall be treated as a worker for the purposes of the definition of ‘qualified person’ in Regulation 5(1) of the 2000 Regulations only during a period in which he is working in the United Kingdom for an authorised employer.”

 

Regulation 7 of the A8 Regulations provided that an employer was an “authorised employer” if the worker had received a valid registration certificate authorising him to work for that employer and the certificate had not expired.  After the completion of 12 months of such employment the worker would become entitled to full Article 45 rights and to be treated in the same way as any other EU national worker.  However, if the accession State worker was not in registered employment or ceased to work without having completed the 12 months of registered employment he would not become a ‘qualified person’ who acquired a right to reside in the UK as a worker.  Regulation 9 provided that an employer would be guilty of an offence if he employed an accession State worker requiring registration during a period in which the employer was not an authorised employer in relation to that worker.’

 

16.   Once again, and subject only to the first line of paragraph 9, that analysis is apposite in the present case.

 

         Analysis

 

17.   The right to reside test in regulation 85A of the 1996 Regulations is discriminatory

18.   As was noted above, Mr Black has argued that the right to reside test in regulation 85A of the 1986 Regulations is discriminatory.

19.   In Patmalniece v Secretary of State for Work and Pensions ([2011] AACR 34, ‘Patmalniece’), the claimant was a Latvian national who came to the United Kingdom in 2000.  Her claim to asylum was refused in January 2004, but no steps were taken to remove her from the United Kingdom.  On 1 May 2004 Latvia joined the European Union, so pursuant to derogations from Article 39(3) of the EC Treaty she became entitled to work in the United Kingdom if she complied with the Workers Registration Scheme in the Accession (Immigration and Worker Registration) Regulations 2004.  She had worked for about 40 years in Latvia and was in receipt of a retirement pension from the Latvian social security authorities, but she had not worked at any time in the United Kingdom and had no other income.  In August 2005 she claimed state pension credit.  Her claim was refused on the ground that she lacked a right to reside in the United Kingdom.  Regulation 2 of the State Pension Credit Regulations 2002 provided that a person is to be treated as not in Great Britain if he is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.  As amended from 2004, Regulation 2 further provided that no person shall be treated as habitually resident in those territories if he/she does not have a right to reside in one of them.  The claimant appealed, asserting direct discrimination on grounds of her nationality contrary to Article 3(1) of Regulation (EEC) 1408/71.  Her case was that it was her Latvian nationality that precluded the entitlement to state pension credit which she would have had if she had been a United Kingdom national.

20.   The case advanced as far as the Supreme Court.  There the Court, by a majority, held that:

 

(i)   the test of presence “in Great Britain” was constructed in a way that was more likely to be satisfied by a United Kingdom national than by a national of another Member State, but the judgment of the Court of Justice of the European Union in Case C-73/08 Bressol v Gouvernement de la Communauté Française [2010] 3 CMLR 20 required the court to find that that was not directly discriminatory on grounds of nationality (although the Court of Justice had not explained why it did not accept the opinion of the Advocate General on that point), but that it was indirectly discriminatory as it put nationals of other Member States at a particular disadvantage.  As such, to be lawful, it had to be justified on objective considerations independent of nationality (paragraphs 30 to 35, 73. 89 to 92, 109);

 

(ii) the Secretary of State’s purpose was to protect the resources of the United Kingdom against exploitation of welfare benefits and social tourism by persons who were not economically or socially integrated with the United Kingdom and that was a legitimate aim according to the principle laid down in Case C-456/02 Trojani v Centre Public d’Aide Sociale de Bruxelles [2004] ELR I-7573; [2004] 3 CMLR 38, and was independent of the nationality of the person concerned, since, while a person’s nationality has a bearing on whether that test can be satisfied, the justification itself is blind to the person’s nationality.  The parties were agreed that the provisions were proportionate to the aim.  The Secretary of State had therefore provided a sufficient justification (paragraphs 47 to 53, 105 to 108, 109);

 

(iii) the provision for Irish citizens in regulation 2 did not undermine the policy justification for treating the other Member States differently as for economic, historical and social reasons Ireland is different from the other Member States.  The provision was protected by Article 2 of the Protocol on the Common Travel Area as an arrangement between the two states relating to the movement of persons between their territories

 

21.   Lord Hope made the following remarks in paragraphs 50 to 53 of his decision:

 

‘50.The principle on which the Secretary of State’s justification relies underlies the EU rules as to whether, and if so on what terms, a right of residence in the host Member State should be granted.  This is the issue to which Council Directive 90/364 EEC is directed.  In that context there is no prohibition on discrimination on grounds of nationality under EU law.  So there is no need to be concerned with the question whether the approach that is taken there can be justified on grounds that are independent of nationality.  Three questions then arise. The first is whether the Secretary of State’s justification can be regarded as relevant in the present context.  The second is whether it is a sufficient justification given the effect of the rules that regulation 2 of the 2002 Regulations lays down.  The third is whether it is independent of the nationality of the person concerned.

 

51. The first and second questions can be taken together.  The justification is relevant because the issues that arise with regard to the grant of a right of residence are so closely related to the issues that are raised by the appellant’s claim to state pension credit.  They are, at heart, the same because they are both concerned with a right of access to forms of social assistance in the host Member State.  It is also a sufficient justification, in view of the importance that is attached to combating the risks of what the Advocate General in Trojani v Centre Public d’Aide Sociale de Bruxelles, paragraph 18 described as “social tourism”.

 

52. As for the third question, the answer to it depends not just on what the Secretary of State himself said in his statement (see [37]–[38], above), but also on the wording of the Regulation and its effect.  They show that the Secretary of State’s purpose was to protect the resources of the United Kingdom against resort to benefit, or social tourism by persons who are not economically or socially integrated with this country.  This is not because of their nationality or because of where they have come from.  It is because of the principle that only those who are economically or socially integrated with the host Member State should have access to its social assistance system.  The principle, which I take from the decision in Trojani, is that it is open to Member States to say that economical or social integration is required.  A person’s nationality does, of course, have a bearing on whether that test can be satisfied.  But the justification itself is blind to the person’s nationality.  The requirement that there must be a right to reside here applies to everyone, irrespective of their nationality.

 

53. For these reasons I would hold that the Secretary of State has provided a sufficient justification, and that it is independent of the nationality of the person concerned.  It follows that the indirect discrimination that results from regulation 2 of the 2002 Regulations was not made unlawful by Article 3(1) of Regulation 1408/71.’

 

22.   Mr Black seeks to distinguish the decision in Patmalniece on the primary basis that the benefit in issue in that case was State Pension Credit (SPC) while in the instant case it was IBJSA.  As was noted above, he argues that there is a distinction between IBJSA as a benefit ‘… facilitating access to the labour market, and other ‘social assistance’ dealt with in cases such as Patmalniece (Pension Credit), Spiridonova (Child Benefit) or Zalewska (Income Support).’

 

23.   In RJ v Secretary of State for Work and Pensions ([2012] AACR 28, ‘RJ’), at the time of his claim, the claimant was a Polish national and a citizen of the European Union.  As in the instant case, he applied for IBJSA.  A decision-maker decided that his applicable amount for the purpose of his claim was nil as he was a person from abroad because he did not have a right to reside and was therefore not habitually resident in the UK.  The First-tier Tribunal refused his appeal and the claimant appealed to the Upper Tribunal.

 

24.   One of the grounds of appeal advanced on behalf of the appellant (and set out in paragraph 10(a) of the decision) was that the right to reside test established by regulation 85A of the Jobseeker’s Allowance Regulations 1996 could not lawfully be applied under European Union law.  At paragraph 12 of his decision, Upper Tribunal Judge Gamble stated:

 

‘12. The submission narrated in [10(a)] above was correctly abandoned by the claimant’s representatives in the light of the decision of the Supreme Court in Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11; [2011] 1 WLR 783; [2011] AACR 34, documents 311–346, given on 16 March 2011.  That case related to state pension credit.  However, its ratio applies to income-based jobseeker’s allowance.  See [102] of the judgement per Baroness Hale of Richmond, document 345. Patmalniece establishes that the right to reside test in its application to European Union citizens (other than United Kingdom citizens) amounted to indirect but not direct discrimination on the ground of nationality.  However the Supreme Court, by a majority of four to one, held that that discrimination was justified because the right to reside test had the legitimate purpose of ensuring that a claimant had achieved economic or social integration in the United Kingdom as a pre-condition of entitlement to benefit and that that justification was relevant, sufficient and independent of the issue of nationality.  Mr Weiss helpfully produced a press release (documents 450–451) indicating that on 29 September 2011 the European Commission had given a reasoned opinion that despite Patmalniece the continued application of the right to reside test by the United Kingdom constituted a contravention of European law.  The Commission has requested the United Kingdom Government to stop its continued application.  No reference of the United Kingdom to the Court of Justice of the European Union on this matter has been made by the Commission.  I hold that that expression of opinion by the European Commission does not affect the binding authority or the persuasiveness of Patmalniece so far as this tribunal is concerned.  I take the same view in regard to the note from the legal service of the European Commission, documents 485–488 (lodged after the hearing of 11 November 2011).’

 

25.   Before I analyse the Mr Black’s response to the decision in RJ, I return to Patmalniece and the reference by Upper Tribunal Judge Gamble to what was said by Baroness Hale at paragraph 102.  It is the case, however, that what was stated in paragraph 102 can only be understood by also citing the surrounding paragraphs:

 

‘99. It is necessary to look at these aims in the context of what Regulation 1408/71 is trying to achieve.  As its recitals show, it is principally designed to coordinate national social security legislation in order to promote freedom of movement for employed and self-employed persons, while recognising that there are differences between the social security systems of the Member States.  It caters for three different kinds of benefit in three different ways.

 

100. At the top are those benefits described in Article 4.1 as “branches of social security”.  Many of these are based upon contributory social insurance schemes but some are not.  Their main distinguishing feature is that they are paid as of right.  They are not designed to top up the income of people whose individual means of support fall short of the nationally set subsistence level.  Workers who move from one country to another must be allowed to participate in these social security schemes in the same way as workers in the host country.  Further, if they have accrued certain benefits, including old age pensions, in one country, Article 10 requires that they cannot be denied these simply because they have moved to live in another country.  Thus Ms Patmalniece is entitled to have the Latvian authorities pay her her Latvian pension here.

 

101. At the bottom are “social and medical assistance [and] benefit schemes for victims of war or its consequences”.  Article 4.4 provides that these are excluded from the Regulation altogether.  Social assistance used to encompass the kinds of income-related benefits with which we are here concerned.  But now it appears to be limited to benefits in kind – social and medical services – along with discretionary cash benefits such as the grants and loans which are made by the United Kingdom’s social fund.

 

102. In the middle are the “special non-contributory cash benefits”, financed out of general taxation to guarantee a minimum subsistence level or to cater for disabled people, and specifically listed in Annex IIa to the Regulation.  State pension credit is one of these.  So too are income-based jobseekers’ allowance, income support, and disability living allowance (mobility component).  Under Article 10a, these are excluded from Article 10 and are payable “exclusively in the territory of the Member State in which they reside and under the legislation of that State”.

 

103. The question is whether it is legitimate to limit these benefits, entitlement to which under the Regulation depends upon the Member State in which the claimant resides, to people who are entitled to reside in that Member State.  In answering that question, it is logical to look at the European law on the right to reside.  If nationals of one Member State have the right to move to reside in another Member State under European Union law, it is logical to require that they also have the right to claim these “special non-contributory cash benefits” there – in other words that the State in which they reside should be responsible for ensuring that they have the minimum means of subsistence to enable them to live there.  But if they do not have the right under European Union law to move to reside there, then it is logical that that State should not have the responsibility for ensuring their minimum level of subsistence.’

 

26.   The key here is the linking of SPC with IBJSA as a special non-contributory cash benefit described in Article 4 and listed, on that basis, in Annex IIa of Regulation 1408/71.

 

27.   Mr Black, while respecting the decision in RJ, submits that it was incorrectly decided, should not be followed and was not directly relevant to the circumstances which pertain the present case.  The decision in RJ is reported in the reported decisions of the Administrative Appeals Chamber of the Upper Tribunal.  To be reported it must command the broad assent of majority of Upper Tribunal Judges of the Chamber who regularly determine appeals in the jurisdiction to which the decision relates.  It is the case, of course, that the decision is not binding on me as a Northern Ireland Social Security Commissioner but is highly persuasive.

 

28.   It is not, in my view, wrongly decided.  On the fundamental issue of whether the ratio in Patmalniece applies to IBJSA, it is supported by the comments of Baroness Hale in that decision.  As Mr Gorman has observed, even if one aspect of the decision has been overtaken that does not negate the decision in its entirety.

 

29.   Mr Black asserts that the facts of RJ may be distinguished from those in the instant case in that the appellant in this case had acquired a greater level of economic integration than the claimant in RJ.  The appellant, as at the date of the claim to IBJSA, and through no fault of his own, had not been economically active for some time.

 

30.   The relevance of economic (and social) integration was addressed by the Court of Appeal in Spiridonova.  Before considering the specific issue of integration, it is important to note that the Court addressed the question as to whether the right to reside test in regulation 27 of the Child Benefit (General) Regulations 2006 was indirectly discriminatory.  The Court followed Patmalneice saying that that decision had confirmed that the State Pension Credit Regulations 2002 containing a similar right to reside requirement, while indirectly discriminatory were objectively justifiable and a legitimate means of confirming the necessary standard of integration.  Further, Lord Justice Coghlin referred to the decision of the House of Lords in Zalewska v Department for Social Development ([2008] UKHL; [2008] 1 WLR 2602 also reported as R 1/09 (IS)), in paragraphs 32 and 33, as follows:

‘32. In Zalewska the House of Lords gave consideration to the objectives of the WRS and the “right to reside” test for entitlement to income support.  Unlike the respondent, who has never registered her employment in compliance with the WRS, Ms Zalewska did register her original employment but omitted to re-register subsequent employments.  At paragraph 34 of the judgment Lord Hope said:

 

“34. Materials which were shown to your Lordships provide some support for Mr Lewis’s description of the aim of the 2004 Regulations.  When the Worker Registration Scheme was first introduced its purpose was said to be to allow A8 State nationals access to the United Kingdom labour market in a way that would enable the Government to monitor the numbers working and the sectors where they were employed.  It was not expected to be a barrier to those who wanted to work.  On the contrary it was thought that it would encourage those A8 State nationals who were working here illegally to regularise their status and begin contributing to the formal economy.  Three strands of thought can be seen to be at work here.  There was a concern about numbers, which was of course the reason why Member States had sought derogation from the direct [2017] AACR 11 (HMRC v Spiridonova) 12 application of Article 39 EC and Articles 1-6 of Council Regulations (EEC) No. 1612/68 for a period of years following the date of accession.  There was a concern to identify which sectors of the labour market were being affected by the influx, in case remedial measures might have to be taken to control it.  And there was a concern about the number of A8 State nationals who were already working here illegally, at risk to their own health and safety, and might continue to do so.  A registration system was an obvious way of combatting this abuse.”

33. At paragraph 36 of the judgment Lord Hope noted that Ms Zalewska did not suggest that these aims were not legitimate and he expressed the view that it could not reasonably be suggested that it was disproportionate for A8 State nationals to be required to apply for a registration certificate for the first employment they obtained in the United Kingdom unless they were exempt from the Regulations since information about the numbers coming to the UK from the A8 States was a necessary requirement if the extent of the influx was to be monitored effectively.  He held that the UK was entitled to insist that an A8 State national should satisfy the requirement of registration in accordance with the WRS in order to become a worker and that the mere fact that a person was working in the United Kingdom was not enough.’

 

31.   On the question of the relevance of social and economic integration, Lord Justice Coghlin made the following remarks, at paragraphs 29 to 30 and 34:

 

29. However, the Chief Commissioner appears to have extracted from these remarks by Lord Hope and what seemed to the Chief Commissioner to be a “concession” made on behalf of the Secretary of State in Patmalniece, together with some observations by Mr Commissioner Rowland at first instance, the proposition “… that an exception must exist to the blanket application of the principles underlying the submitted justification for the indirect discrimination which the standard ‘right to reside’ test permits provided that the individual concerned is able to show a sufficient degree of economic and/or social integration into the United Kingdom”.

 

30. We consider that the “exception” identified by the Commissioner in the relevant section of Lord Hope’s judgment was based, unfortunately, upon a misunderstanding of that passage.  In Patmalniece the parties were agreed that, with regard to the question of indirect discrimination, the only issue was whether the Secretary of State was able to show that the difference in treatment of nationals of other Member States was based on objective considerations independent of nationality.  If he could do so, the parties were agreed that there was no need to examine the question of proportionality.  In that case the underlying purpose of the relevant regulations was said to be to safeguard the United Kingdom social security system from exploitation by people who wished to come to the UK not to work but to live on income-related benefits, in other words to prevent “benefit tourism”.  In that case the Secretary of State argued that the purpose of regulation 2 of the 2002 Regulations, the provision that no person was to be treated as “habitually resident” in the UK if he does not also have a “right to reside” in the UK, was to ensure that the individual had “achieved economic integration or a sufficient degree of social integration in the United Kingdom”.  In other words, it was the “right to reside” which was to determine that a sufficient degree of integration had been achieved.  Read in its proper context the submission made by the Secretary of State in Patmalniece and referred to by Lord Hope at paragraph 42 of the judgment was to the effect that the requirements of regulation 2 of .the 2002 Regulations were objectively justifiable on the basis that compliance with such requirements would be indicative of a sufficient degree of economic and/or social integration in the UK to effectively prevent the development of “benefit tourism”.  It is to be noted that paragraph 42 commences with a reference to the submission by the Secretary of State that the “requirements of regulation 2 of the 2002 Regulations were objectively justifiable”.  The question was not whether an individual should be able to establish some undefined degree of economic and/or social integration as an exception to having to comply with the “right to reside” requirement, a criterion which could clearly give rise to a multiplicity of expensive and time consuming litigation, but whether compliance with the “right to reside” requirement was a legitimate means of confirming the necessary standard of integration.

…

34. In effect, as an A8 national worker who had omitted to register in accordance with the WRS, “merely working” was precisely what the respondent had been doing prior to her application for CB.  The holding by the Chief Commissioner that a degree of economic and/or social integration, which he considered to have been established by the respondent, could operate as an exception to the “right of residence” requirement inhibited him from any consideration of the specific statutory requirement that to establish a right of residence in the UK as a worker an A8 national had to be in continuous registered employment with an authorised employer in accordance with the WRS.  As he recorded at paragraph 11 of the Case Stated the “exception” to the need to establish a “right of residence” identified by the Chief Commissioner enabled him to find in favour of the respondent “… notwithstanding that her employment was not registered pursuant to the Worker Registration Scheme (‘WRS’) and therefore did not give rise to a right of residence in the UK as a ‘worker’”.  It follows that he did not feel that it was necessary to reach any finding as to whether the Regulations constituted a lawful means of attaining a legitimate objective and, if they did so, whether the means adopted were proportionate.  It is not altogether easy to reconcile such an approach with the wording of the second question in the Case Stated.  It is perhaps not without significance that there is no mention of the decision in Zalewska in his judgment, a case in which no suggestion of an “exception” was contained in the arguments but one which also concerned an individual who had held a number of employments in NI.’

32.   The decision of Mr Commissioner Rowland (as he then was) referred to by Lord Justice Coghlin referred to in paragraph 29 is CIS/3182/2005, mentioned by Mr Black in his Case Summary and relied on to support his argument on an exception based on economic and/or social integration.

         The lawfulness of the derogation from Article 7(3) of Directive 2004/38

33.   This issue was addressed by the House of Lords in Zalewska where it was held that:

 

(i)    The United Kingdom was permitted, in accordance with Article 10 of the Accession Treaty and Article 24 and Annex XII to the Act of Accession, to derogate from Community law on the freedom of movement of workers from nationals of the A8 States.  This enabled the United Kingdom to lay down its own rules for access to its labour market by A8 State Nationals.

 

(ii)  The claimant could not rely directly on Article 39 of the Treaty establishing the European Community and/or Article 7 (2) of Regulation EEC/1612/68 as she was not authorised to work for an authorised employer under regulation 7 of the Accession (Immigration and Worker Registration) Regulations 2004.

 

(iii) The 2004 Regulations were introduced under the authority of paragraph 2 of the Treaty of Accession and must therefore be compatible with the authority given to them by the Treaty of Accession and with the Community law principle of proportionality.

 

(iv) The Registration Scheme, introduced by the 2004 Regulations pursued the legitimate aims of regulating and monitoring access to the United Kingdom’s labour market by A8 nationals and safeguarding the United Kingdom’s social security system from exploitation by people who wished to come to the United Kingdom not to work but to live off benefits.

 

(v)  The proportionality of the formalities registration and reregistration and of the consequences of a failure to comply with these requirements must be judged in the context of the legitimate aims of the Registration Scheme.

 

34.   We now also have the decision of the Court of Justice of the European Union (‘CJEU) in Prefeta C-618/16.  This was a decision on a request for a preliminary ruling on the following question:

 

‘Did Annex XII [to the 2003 Act of Accession] permit Member States to exclude Polish nationals from the benefits of Article 7(2) of Regulation [No 492/2011] and Article 7(3) of Directive [2004/38] where the worker, though he had belatedly complied with the national requirement that his employment be registered, had not yet worked for an uninterrupted registered 12-month period?

 

35.   The response of the Court was as follows:

 

      ‘Chapter 2 of Annex XII to the 2003 Act of Accession must be interpreted as permitting, during the transitional period provided for by that act, the United Kingdom to exclude a Polish national, such as Mr Prefeta, from the benefits of Article 7(3) of Directive 2004/38 when that person does not satisfy the requirement imposed by national law of having completed an uninterrupted 12-month period of registered work in the United Kingdom.’

 

36.   To my mind, that ruling is definitive of the issue of the lawfulness of the derogation from Article 7(3) of Directive 2004/38 and it does not matter that the benefit at issue in Prefeta was different to that claimed in the instant case.

 

         Articles 20 and 21 of the Treaty on the Functioning of the European Union (‘the TFEU’)

 

37.   As was noted above, Mr Black has submitted that the appeal tribunal erred in failing to make findings on the argument raised by the appellant that he had a right to reside at the relevant time under Articles 20 and 21 of the Treaty on the Functioning of the European Union.

 

38.   I begin by agreeing with Mr Gorman that the appeal tribunal, while not making a specific reference to Articles 20 and 21 of the TFEU, did address the question as to whether a right to reside might be acquired through the basis of citizenship.

 

39.   In Kaczmarek v Secretary of State for Work and Pensions ([2008] EWCA Civ 1310, R(IS) 5/09, ‘Kaczmarek’) the Court of Appeal in England and wales was considering, inter alia, the following argument:

 

‘As regards Article 18, Miss Lieven seeks to invoke the approach adopted by the Court of Justice in Baumbast v Secretary of State for the Home Department [2002] ECR 1-7091 where it said (at paragraph 94):

 

“A citizen of the European Union who no longer enjoys a right of residence as a migrant worker in the host Member State can, as a citizen of the Union, enjoy there a right of residence by direct application of Article 18(1) EC.  The exercise of that right is subject to the limitations and conditions referred to in that provision, but the competent authorities and, where necessary, the national courts must ensure that those limitations and conditions are applied in compliance with the general principles of Community Law and, in particular, the principle of proportionality.”

 

In essence, the case for the appellant is that it is disproportionate to deny a right of residence, and thereby entitlement to income support, to a person who is lawfully resident and as substantially settled as the appellant.’

 

40. ‘Article 18’ is a reference to Article 18 EC the precursor to Article 21 TFEU. Lord Justice Maurice Kay said the following about that argument, at paragraphs 17 to 23:

 

‘As I have indicated, the dispute by reference to Article 18 turns on proportionality because it is common ground that a right can emerge from between the interstices of Article 18, as it did in Baumbast.  The question becomes: Is it disproportionate to deny a right of residence to a person in the position of the appellant?

The scope of Article 18 in this context was explained by Advocate General Geelhoed in Baumbast.  There the claimant was a German national who came to the United Kingdom to work first as an employee and later on a self-employed basis.  His wife and children settled here.  He later worked outside the EU, albeit for a German company.  He had German medical insurance but his domestic base remained in the United Kingdom.  His position vis-à-vis a Community law based right to reside was jeopardised by the facts that he was no longer a worker here and nor was he self-sufficient here (because his medical insurance only provided cover in Germany).  The Advocate General observed (at paragraph 120) that the rules on freedom of movement “have not kept up with the pace of developments”.  He added:

 

“On adoption of the Regulation [in 1968] manifestly no account was taken of a case in which a person is ordinarily resident in one Member State whilst working for short periods and in different places for an undertaking which is established in another Member State.

 

121. This is a case which was not provided for by the Community legislature.  There is no regulatory framework within which the right to remain may be exercised.  On those grounds I apply by analogy the regulatory framework applicable to economically active persons.  Save for the circumstance not provided for by the Community legislature that Mr Baumbast is not employed in the host country, he satisfies all the other requirements for residence in the United Kingdom; he is the national of a Member State of the European Union, he is a worker, he is resident in another Member State of the European Union (United Kingdom) and his family has a right to remain under Regulation No.1612/68.

 

122. I therefore also conclude that Mr Baumbast has a right to remain in the United Kingdom based on Article 18 EC in conjunction with Article 39 EC.”

 

This reasoning plainly informed the judgment of the Court of Justice: see paragraphs 84-86 and 92-94).  Its concern is to fill what would otherwise be a lacuna exposed by the passage of time.  The lacuna is filled because it would be disproportionate for the “limitations and conditions” contained in the Directive and the domestic Regulations to undermine the direct application of Article 18.

It is abundantly clear that the facts of Baumbast were more susceptible to “lacuna filling” than the facts of the present case where, at the material time, the appellant was no longer a worker and nor was she at all self-sufficient.  In Abdirahman, Lloyd LJ considered that there was no lacuna in that case because Council Directive 90/364/EC on the right of residence expressly confines the right of residence to cases where nationals of other Member States and their families

 

“are covered by sickness insurance in respect of all the risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during the period of their residence.”

 

Whereas there was scope for the lacuna approach in Baumbast, where the claimant was working (albeit outside the EU) and self-sufficient (save that his medical insurance was German), the same could not be said in Abdirahman where the appellants were neither working nor self-sufficient.

It seems that this is what the Commissioner had in mind in the present case when he said (at paragraph 15):

 

“However, it seems to me that to rely on Article 18(1) where the Council of the European Communities has apparently deliberately excluded a class of persons from the scope of a Directive would be to attack the Directive … Article 18(1) may be relied upon to supplement a Directive but, in proceedings before a national court or tribunal, it cannot be relied upon to remove limitations necessarily implicit in a Directive.”

 

In my view, this analysis is correct.  It is properly founded on Abdirahman, by which we too are bound and with which I agree in any event.

There is a further consideration which was referred to by the Commissioner.  The Directives in issue in Baumbast, Abdirahman and the present case have now been replaced by Council Directive 2004/38/EC, which was adopted on 29 April 2004, before the claim for income support was made in this case, although it did not come into force until 30 April 2006.  Therefore it does not strictly apply to this case.  Its point of interest for present purposes, however, is that it provides for a right of permanent residence after five years’ lawful presence which is not conditional on the claimant being economically active or self-sufficient.  To that extent it represents a further liberalisation of the European perspective on entitlement to social security benefits.  On the other hand, it provides an authoritative insight into the parameters of proportionality when applied to the economically inactive migrant.  If, as we must assume, a five year qualification is proportionate in that context, it is all the more difficult to argue that it is disproportionate to exclude this appellant from income support when, at the time of her claim, she had been in this country for three years and had become economically inactive.  Rights conferred by the Directive upon those whose lawful presence is less than five years are conditional upon, amongst other things, self-sufficiency.  Although the Directive cannot impact directly on this appeal, I agree with the Commissioner that it is a useful benchmark and provides a steer as to the ambit of proportionality.  To put it another way: it would be inappropriate and presumptuous for us to characterise something as a lacuna when it was not identified as such by the Council when it most recently moved to enlarge eligibility.’

 

41.   It seems to me that the key principle is that set out by Mr Commissioner Rowland, as he then was, in paragraph 15 of his decision which gave rise to the appeal to the Court of Appeal, and as set out by Maurice Kay LJ above. Article 21 cannot be relied upon to create a right to reside where limitations in a Directive, as in Council Directive 2004/38/EC in the instant case, do not permit a right to reside.

 

42.   Although not explicit on the point, Mr Black seeks to distinguish Kaczmarek by arguing that the appellant was economically integrated in Northern Ireland.  With respect to that argument, I cannot accept it.  The factual background is analogous to that pertaining in Kaczmarek.  As I observed above, the appellant, as at the date of the claim to IBJSA, and through no fault of his own, had not been economically active for some time.

 

         The United Nations Convention on the Rights of Persons with Disabilities (‘the Convention’)

 

43.   As was noted above, Mr Black has argued that the appeal tribunal erred in law by failing to consider the effect of the United Nations Convention on the Rights of Persons with Disabilities on the decision to refuse the appellant entitlement to IBJSA.

 

44.   The applicability of the Convention on claims to social security benefits was considered by Upper Tribunal Judge Lane in MH v Secretary of State for Work and Pensions (PIP) ([2018] AACR 15, ‘MH’).  In paragraphs 63 to 70, Judge Lane stated the following:

 

‘63. Mr Joshi argued that the UK was in breach of its duties under the UN Convention on the Rights of Persons with Disabilities, to which it is signatory.

 

64. Article 20 of the Convention sets out a party’s duty “to take effective measure to ensure personal mobility with the greatest possible independence for persons with disabilities”.

 

65. The measures include:

 

(a) facilitating the personal mobility of disabled persons in the manner and at the time of their choice, and at affordable cost;

 

(b) facilitating access by disabled persons to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost;

 

(c) providing forms of training in mobility skills to disabled persons and specialist staff working with them; and

 

(d) encouraging producers of mobility aids, devices and assistive technologies to take into account all aspects of mobility for disabled persons.

 

66. It is argued that suspending the mobility component for the appellant and fellow in-patients is inconsistent with personal choice and with effective measures to ensure their personal mobility with the greatest possible independence.

 

67. That may be so, but it is notable that, despite the very expansive opening sentence of Article 20, the measures envisaged under Article 20 are cast in vague terms of “facilitating”, “providing training/skills”, and “encouraging others”.  Whilst these measures are stated to be inclusive, they fall far short of requiring (or even expecting) expenditure regardless of economic feasibility.

 

68. It would be possible to argue that any state, no matter how generous its public funding, fell short of the vaguely expressed objectives in Article 20.  The correct approach must be to consider these vague obligations in light of the provision made overall by the complex systems of funding for the disabled made in our domestic law.  This includes a multitude of benefits and provision for the disabled from other forms of public funding, including the NHS, a point made on behalf of the Secretary of State in the witness statement of James Bolton, Head of Strategy for the Disability Benefits, Decisions and Appeals Division of the Department of Work and Pensions.

 

69. It would not be rational if this considerable funding from the public purse was so inadequate that the UK was in breach of these Convention obligations.  But if it is, the tribunal must apply the law as set down by Parliament.

 

70. In any event, at the end of the day, the UN Convention does not take the appellant’s argument any further.  Unlike the European Convention on Human Rights, the UN Convention on the Rights of Persons with Disabilities is not incorporated into our domestic law.  The tribunal does not have jurisdiction over the Convention.’

 

45.   The statements in paragraph 70 are undoubtedly correct in law.  The decision in MH is reported in the reported decisions of the Administrative Appeals Chamber of the Upper Tribunal and I adopt the reasoning and accept that it represents the law in Northern Ireland.

 

46.   In JE v SCC (HB) ([2017 UKUT 0114 (AAC), ‘JE’), Upper Tribunal Judge Levenson said the following in paragraphs 10 to 13:

 

‘10. The UN Convention was ratified by the United Kingdom in 2009 and sets out what human rights mean in the context of disability over a wide range of activities and areas.  Article 1 sets out the purpose of the Convention:

 

The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

 

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

 

11. In particular, article 19 relates to living independently and being included in the community.  It states:

 

States parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:

 

(a)    Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

 

(b)    Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation and segregation from the community;

 

(c)     Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.

 

12. Monitoring and enforcement is undertaken by a relevant government body within each State Party.  In the United Kingdom this is the Equality and Human Rights Commission together with the Scottish and Northern Ireland Human Rights Commissions and the Northern Ireland Equality Commission.  State Parties must also provide periodic reports to the UN Committee on the Rights of Persons with Disabilities.  The UN Convention is not incorporated directly into domestic law as is the European Convention on Human Rights.  Like all international treaties to which the United Kingdom is a party and has ratified, its wording may be cited to help resolve ambiguities in domestic legislation (or to inform the exercise of discretion).  However, there is no ambiguity or discretion in the wording of the housing benefit legislation and regulations relevant to this appeal.

 

13. Under article 1(1) of the Optional Protocol to the UN Convention (also ratified by the United Kingdom) a State Party to the Protocol recognizes the competence of the UN Committee on the Rights of Persons with Disabilities “to receive and consider communications from or on behalf of individuals or groups of individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of the provisions of the Convention”.  A procedure for dealing with such communications is detailed in the Protocol.  Ultimately such matters are dealt with by discussion and report.  The Optional Protocol does not create an enforcement mechanism in the courts of the United Kingdom (although domestic law might well do so) or assist in the application of the regulations relevant to this appeal.  Resolution is really a matter for diplomatic or political processes.’

 

47.   The statements in paragraphs 12 and 13 about the lack of direct incorporation into the domestic law of the United Kingdom reinforce the reasoning in MH.  What JE adds, however, is that the wording of the Convention may ‘be cited to help resolve ambiguities in domestic legislation’.

 

48.   In Burnip v Birmingham City Council and another, Trengove v Walsall Metropolitan Council and another and Gorry v Wiltshire Council and others ([2013] AACR 7, ‘Burnip’), Lord Justice Maurice Kay said the following, at paragraphs 19 to 22:

 

‘19. It follows that, in my judgment, the appellants fall within Article 14, subject to justification.  I feel able to reach this conclusion even without resort to the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which is relied upon by Mr Richard Drabble QC and further expounded upon by Ms Helen Mountfield QC on behalf of the Equality and Human Rights Commission. Mr Eicke seeks to marginalise the CRPD for present purposes by relying on R (NM) v London Borough of Islington [2012] EWHC 414 (Admin), in which Sales J, obiter, was inclined to disregard the CRPD as an aid to ascertaining the scope of Article 14 (see [99]–[108]). However, in AH v West London MHT [2011] UKUT 74 (AAC); [2011] AACR 15, the Upper Tribunal, presided over by Carnwath LJ, had taken a more expansive view ([16] and [17]):

 

“16. The CRPD prohibits discrimination against people with disabilities and promotes the enjoyment of fundamental rights for people with disabilities on an equal basis with others. …

 

17. The CRPD provides the framework for Member States to address the rights of persons with disabilities.  It is a legally-binding international treaty that comprehensively clarifies the human rights of persons with disabilities as well as corresponding obligations on State parties.  By ratifying a Convention a State undertakes that wherever possible its laws will conform to the norms and values that the Convention enshrines.”

 

20. The CRPD was adopted by the General Assembly on 13 December 2006.  It was ratified by the United Kingdom on 7 August 2009 and by the European Union on 23 December 2010. Article 4(1)(b) obliges State Parties to:

 

“take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs or practices that constitute discrimination against persons with disabilities.”

 

Article 5(3) provides that:

 

“in order to promote equality and eliminate discrimination, State Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.”

 

Article 19 provides:

 

“State Parties … recognise the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community by ensuring that:

 

(a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

 

(b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community and to prevent isolation or segregation from the community;

 

(c) Community services and facilities are available on an equal basis to persons with disabilities and are responsive to their needs.”

 

These provisions resonate in the present case, even though they do not refer specifically to the provision of a state subsidy such as HB.

 

21. In the recent past, the Strasbourg Court has shown an increased willingness to deploy other international instruments as aids to the construction of the ECHR.  In Demir and Baykara v Turkey (2009) 48 EHRR 54, the Grand Chamber said paragraph 85 that:

 

“in defining the meaning of terms and notions in the text of the [ECHR], [it] can and must take into account elements of international law other than the [ECHR], the interpretation of such elements by competent organs and the practice of European States reflecting their common values.”

 

There the Grand Chamber was construing Article 11 (freedom of association) by reference to International Labour Organisation Conventions and the European Social Charter.  In the context of Article 14, in Opuz v Turkey (2010) 50 EHRR 28, the Court said (at paragraph 185):

 

“… when considering the definition and scope of discrimination against women, in addition to the more general meaning of discrimination as determined in its case law, the Court has to have regard to provisions of more specialised legal instruments and the decisions of international legal bodies on the question of violence against women.”

 

These cases do not appear to have been drawn to the attention of Sales J in NM.

 

22. The response of the Secretary of State is to seek to limit this approach by drawing fine distinctions as between different international instruments and in relation to their maturity or chronology.  It seems to me, however, that such rearguard action is inappropriate.  If the correct legal analysis of the meaning of Article 14 discrimination in the circumstances of these appeals had been elusive or uncertain (and I have held that it is not), I would have resorted to the CRDP and it would have resolved the uncertainty in favour of the appellants. It seems to me that it has the potential to illuminate our approach to both discrimination and justification.’

 

49.   It is the case, therefore, that while the Convention is not directly enforceable in the UK courts and tribunals, it may be cited to resolve ambiguities in domestic legislation or as an aid to the construction of the ECHR.  In the instant case, there are no ambiguities in the domestic legislation and the ECHR has not been cited in argument.  I would add that there is, of course, no reference in the statement of reasons for the appeal tribunal’s decision to the Convention.  The potential applicability of the Convention was not argued before the appeal tribunal when the appellant was represented by an experienced caseworker from the Law Centre (Northern Ireland).  I do not agree, therefore, that the decision of the appeal tribunal is in error of law on the basis of this ground.

 

         The referral of questions to the CJEU

 

50.   During the course of the proceedings Mr Black made an application for the referral of three questions to the CJEU for a preliminary ruling.  His submission was as follows:

 

‘This case had been stayed following the referral of a question in Florea Gusa v Minister for Social Protection and Others. 3 questions were referred to the ECJ. Question 3 was “is a refusal of a jobseeker’s allowance (which is a non-contributory special benefit within the meaning of Article 70 of Regulation No 883/2004) by reason of a failure to establish a right to reside in the host Member State compatible with EU law, and in particular Article 4 of Regulation No 883/2004?”

 

A decision here could have impacted upon the appellant’s case but the ECJ did not answer Question 3 because it decided the case on other grounds.  Therefore, a reference in our case along the lines of Question 3 in Gusa could still be appropriate.

 

However, we would note the following decision from the Florea Gusa case.

 

“a national of a Member State retains the status of self-employed person for the purposes of the directive where, after having lawfully resided in and worked as a self-employed person in another Member State for approximately four years, that national has ceased that activity because of an absence of work owing to reasons beyond his control.”

 

It therefore seems reasonable to argue that if a self-employed person in the appellant’s circumstances has satisfied the residence test then Mr Salek should too and therefore had a right to reside at the relevant time under Articles 20 and 21 of the Treaty on the Functioning of the EU.

 

In a recent decision the ECJ in Prefeta v Secretary of State for Work and Pensions decided, on a referral from the Social Security Upper Tribunal in Britain, that a claimant who had not completed a period of 12 months under the Accession (Immigration and Worker Registration) Regulations 2004 did not retain worker status for purposes of an ESA claim.  We respectfully submit that this case differs in that Mr Salek’s claim is for IB JSA, a benefit meant to facilitate access to the labour market and so to be differentiated to a claim for ESA.

 

Should the Commissioner be minded to refer this issue to the ECJ we can summarise our questions as follows:

 

1.    Did Regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004 constitute a valid derogation from EU law?

 

2.    If the derogation was valid, are the right to reside requirements discriminatory on grounds of nationality?

 

3.    If the derogation is discriminatory, can such discrimination be justified as part of a legitimate aim by the host state?’

 

51.   Mr Gorman made the following submission in response:

 

‘The Department does not consider it necessary to make a referral to the CJEU in the present cases and respectfully submits that the applicable legislation and available case law are sufficient to allow the Commissioner to determine both appeals.’

 

52.   I do not consider that it is necessary to make the reference to the CJEU which Mr Black seeks.  In my view, the decision in Prefeta answers the first of these questions and the decision in Patmalniece, and subsequent decisions as analysed above, answer the second and third questions.  I consider that the relevant principles are acte claire.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

27 March 2019