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Cite as: [1998] UKSSCSC CIS_16992_1996
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Krasniqi v. Chief Adjudication Officer and Anor. [1998] UKSSCSC CIS_16992_1996 (10 December 1998)
- decisions on substantive issues of social security law made by the High Court in exercise of its supervisory jurisdiction were to be regarded as made in a jurisdiction co-ordinate with that of Commissioners and therefore a Commissioner was not bound to follow a decision of a single High Court judge although he should do so unless convinced that it was wrong (paragraph 19);
- the decision of Dyson J in Regina v. Secretary of State for Social Security, ex parte Vijeikis, Okito and Zaheer [1998] COD 49 was to be followed and a claimant was not entitled to transitional protection under regulation 12 of the 1996 Regulations unless he or she was entitled to the relevant benefit at the time those Regulations came into force on 5 February 1996 (paragraph 20);
- the claimant in CIS/2809/1997 could not rely on Council Regulation (EEC) 1408/71 because any discrimination which a refugee might suffer under the law of the Member State where he or she had claimed asylum fell within the scope of that law and must therefore be dealt with within the framework of the internal legal system of that State (paragraph 26);
- regulation 12(3) of the 1996 Regulations should be construed so that transitional protection continued only during the period covered by the award of benefit that was current on 5 February 1996 (paragraph 35).
- in the absence of very specific indications to the contrary, a European Community provision did not apply to a case that was wholly internal to a single Member State and this was particularly the case where the provisions related to the freedom of movement and the freedom to provide services: Saunders [1979] ECR 1129; Uecker [1997] CMLR 963; Petit [1992] ECR 4973;
- the powers under which Council Regulation (EEC) 1408/71 was made were limited to powers to facilitate the movement of workers between Member States so that any construction that sought to extend the Regulation to cover cases where there was no such movement would render the Regulation ultra vires: Spruyt [1986] ECR 685;
- a reference to the European Court of Justice was not necessary because in Petit the Court had already held that Council Regulation (EEC) 1408/71 could not be applied to activities that were confined within one Member of State.
- These three appeals all raise questions as to the proper construction of regulation 12 of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996. I heard the appeals together. Mr. Stephen Cooper, of the Office of the Solicitor to the Departments of Social Security and Health, appeared on behalf of the adjudication officers, Ms. Pamela Fitzpatrick, a welfare rights advisor at the National Association of Citizens Advice Bureaux, appeared on behalf of the two claimants of income support and Ms. Jackie May, a case worker at Leicester Law Centre, appeared on behalf of the claimant of family credit. I am grateful to all three advocates for the assistance they have given me.
- The 1996 Regulations came into force on 5 February 1996 and made several amendments to legislation concerning social security benefits. In each of the cases before me, the relevant claim for benefit was made after 5 February 1996. The question in each case is whether the claimant was entitled, on that claim, to the transitional protection afforded by regulation 12 of the Regulations. It is common ground that, if the claimants were entitled to the transitional protection so that the legislation is to be applied as though the amendments had not been made, each of these claimants would be entitled to benefit. It is also common ground that, if the legislation is to be applied in its amended form, the claimants would not be entitled to benefit.
- In view of the amount of common ground, it is unnecessary for me to consider in detail the amendments made by regulations 2 to 11 of the 1996 Regulations. Everything turns on the construction of regulation 12 which, as modified by paragraph 5 of Schedule 1 to the Asylum and Immigration Act 1996, provides:-
- The claimant in this case first came to the United Kingdom in 1993 and was at first granted limited leave to remain as a visitor. However, in 1994 he was sponsored by his son and given indefinite leave to remain. It appears that his son, with whom he was living, ceased to be able to support him and the claimant was awarded income support from 8 August 1995. On 14 November 1995 he received a telephone call to the effect that another son was seriously ill in India and, on the following day, he left the United Kingdom to go to India. His son had died before he arrived there. He remained in India, dealing with his son's affairs, and returned to the United Kingdom on 14 March 1996. By that time, regulation 8(2) of the 1996 Regulations, had amended regulation 21(3) of the Income Support (General) Regulations 1987 and the claimant was regarded as a person from abroad whose applicable amount for income support purposes was nil. Furthermore, regulation 8(3)(a) of the 1996 Regulations had amended regulation 70(3)(c) of the 1987 Regulations so that he was not entitled to an urgent cases payment because the son who had sponsored him was still alive.
- Accordingly, when he claimed income support, his claim was rejected by an adjudication officer. However, on appeal, the Walthamstow social security appeal tribunal decided, on 22 July 1996, that regulation 12(2) of the 1996 Regulations applied and they awarded income support from 22 March 1996. The adjudication officer now appeals against that decision with the leave of the tribunal chairman.
- While the appeal has been pending, the scope of regulation 12 has been considered by Dyson J in the course of determining three applications for judicial review in the High Court. The proceedings were brought on behalf of three claimants (and the wife of one of them) against various respondents. I shall refer to the case as Regina v Secretary of State for Social Security, ex parte Vijeikis, Okito and Zaheer, although the decisions being challenged, "refusing claims by asylum seekers for income support", were presumably made by adjudication officers (who were not among the identified respondents) rather than by the Secretary of State. Dyson J gave judgment on 10 July 1997. The first issue before him was whether a claimant was entitled to the protection of regulation 12(1) of the 1996 Regulations "if he was entitled to benefit at some time before the 5 February 1996, but was not entitled at that date". He answered that question in the negative and gave the following reasons (transcript pages 11C to 14B):
- The present case arises under regulation 12(2) and Dyson J was considering regulation 12(1) but it is common ground that there are no grounds upon which it can be said that a different approach is warranted under either paragraph (2) or (3) from that taken from under paragraph (1) and, in any event, Dyson J's decision in relation to paragraph (1) was partly based upon the language of paragraphs (2) and (3). Mr. Cooper submitted that Dyson J's decision was binding on me and was, in any event, right and should be followed for the reasons given in the judgment. Ms. Fitzpatrick submitted it was not binding on me and should not be followed. Therefore, I must first consider whether I am bound by the decision of Dyson J. Mr. Cooper referred me to a number of authorities on this question and conceded that it was not free from difficulty.
- The approach that Commissioners take to decisions of other Commissioners and to decisions of the courts was considered in R(I) 12/75, where a Tribunal of Commissioners said:-
- The insurance officer, local tribunals and Commissioners on questions of legal principle are all bound to follow the decisions of the High Court and Superior Courts."
- This is consistent with the approach that judges of the High Court take to other decisions of the Court. In Huddersfield Police Authority v. Watson [1947] KB 842, it had been held that a judge at first instance was not bound by a decision of another judge at first instance but that, not only were judges at first instance bound by decisions of the Divisional Court, so also the Divisional Court was bound by its own decisions. However, circumstances have changed. That particular case was decided in a context in which there was no right of appeal from the Divisional Court. There are now, I think, fewer instances where there is no right of appeal against a decision of the High Court and, in any event, there has since been some change in the approach taken by courts of last instance to their own decisions. Furthermore, most cases that were formerly decided by the Divisional Court of the Queen's Bench Division are now decided by single judges. In the light of those changes, the modern approach to precedent in cases where the High Court is exercising its supervisory jurisdiction was considered in Regina v Greater Manchester Coroner, ex parte Tal [1985] QB 67, (to which reference was made in R(U) 4/88), where a divisional court held, at page 81:
- When R(I) 12/75 was decided, it was obvious that Commissioners must be bound by decisions of the High Court and the Court of Session because, until 1980, there was no appeal against decisions of Commissioners. Their decisions could be challenged only by an application to the Divisional Court for a prerogative order or, in Scotland, by an action for reduction in the Outer House of the Court of Session. In 1980, it was provided that an appeal should lie from a decision of a Commissioner to the Court of Appeal or the Inner House of the Court of Session. It is now less obvious that a decision of the High Court or of the Outer House of the Court of Session is binding on a Commissioner.
- A second change that took place in 1980 was that the Commissioners for the first time acquired jurisdiction in respect of supplementary benefit and family income supplement. Until 1978, there was no right of appeal at all from decisions of supplementary benefit appeal tribunals which could be challenged only by recourse to the same supervisory jurisdiction of the High Court or Court of Session that was exercised in relation to Commissioners. From 1978 to 1980, there was a right of appeal to a single judge of the High Court, or the Court of Session, under the Tribunal and Inquiries Act 1971. Only in 1980 was it provided that appeals from supplementary benefit appeal tribunals should lie to the Commissioners.
- Against that background, there soon arose the question whether Commissioners were bound by decisions of the High Court given in relation to supplementary benefit before there was introduced the right of appeal to a Commissioner. In R(SB) 6/85, a Tribunal of Commissioners held that they were not bound by a decision given by a single judge under the procedure in force between 1978 and 1980. On appeal, the Court of Appeal agreed (Chief Supplementary Benefit Officer v. Leary, reported as an appendix to R(SB) 6/85). Having recorded that it was not in dispute before them "that all judgments given by the High Court under its supervisory jurisdiction are binding on the Commissioners", the Court held:-
- Meanwhile, after the decision of the Tribunal of Commissioners had been given in R(SB) 6/85 but before that case had reached the Court of Appeal, another Tribunal of Commissioners (differing only slightly in its constitution) had, in R(SB) 52/83, considered the approach to be taken by Commissioners to decisions of the Divisional Court given before 1978. Having explained the changes to the way in which decisions of supplementary benefit appeal tribunals might be challenged, they said:-
- I do not consider that R(SB) 52/83 should be regarded as having been overruled by the Court of Appeal in Leary, or the dictum of Purchas LJ in Commock. Not only was what was said in those cases about the effect of decisions given by the High Court in exercise of its supervisory jurisdiction obiter and without the benefit of argument, there are also powerful reasons for supposing that the distinction drawn by the Tribunal is a valid one and that, while some decisions given by the High Court in its supervisory jurisdiction are binding on Commissioners, some are not. It is of particular importance that it was recognised in Leary that a decision of a High Court judge was no longer to be regarded as per se binding on a Commissioner. It also seems to me to follow from the decision of the divisional court in Tal that a decision of a High Court judge exercising the Court's supervisory jurisdiction is not strictly binding upon another High Court judge exercising any other jurisdiction, although it will usually be followed as a matter of judicial comity. Taken together, these two decisions lead logically to the conclusion that a Commissioner is not necessarily bound by a decision of a single judge of the High Court exercising the Court's supervisory jurisdiction. The position seems to be the same in Scotland, where judges of the Outer House of the Court of Session generally follow one another's decisions but are not strictly bound to do so.
- Of course, the High Court and the Outer House of the Court of Session continue to exercise a supervisory jurisdiction in respect of Commissioners. Indeed, I do not doubt that, in theory, the High Court could, in exercise of its supervisory jurisdiction, still quash a final decision of a Commissioner given on an appeal but, since the introduction of a right of appeal to the Court of Appeal, that is now as much of a dead letter as is the equivalent power in relation to final decisions of county courts and, in my view, it should be disregarded for the purpose of considering the question of precedence. In practice, the jurisdiction is far more limited and is most often, if not only, exercised in the circumstance noted by the Tribunal deciding R(SB) 52/83, namely when a challenge is brought to a Commissioner's refusal to grant leave to appeal from a tribunal. Clearly, decisions given in the exercise of the supervisory jurisdiction in respect of Commissioners must be binding on Commissioners. The question is: to what extent does that imply that decisions of the High Court or the Outer House of the Court of Session on substantive issues of social security law must be binding on Commissioners?
- There are at least three ways in which social security cases may come before a High Court judge on an application for judicial review quite apart from challenges to Commissioners' decisions. Firstly, as in the cases before Dyson J, leave may be granted to apply for judicial review of a decision of an adjudication officer or a tribunal notwithstanding the fact that the applicant has an alternative remedy through the normal appeal procedure. Secondly, there are cases where a challenge is made to the making of regulations or the issuing of administrative instructions or guidance by way of an application for judicial review of the act of the Secretary of State or the Chief Adjudication Officer. Such challenges could be made collaterally within the scope of an appeal to a Commissioner (see Foster v. Chief Adjudication Officer [1993] AC 754) but there are often good reasons why a more direct challenge should be permitted. Thirdly, there are cases concerning housing benefit or council tax benefit which do not fall within the jurisdiction of Social Security Commissioners but are governed by legislation which is often in identical terms to the legislation governing income support which does fall within the jurisdiction of the Commissioners. It seems to me that, in all three of those situations, the High Court is plainly exercising a jurisdiction that is co-ordinate with, or parallel to, the jurisdiction of the Commissioners. There seems no reason in principle why decisions in such cases should be binding on Commissioners. On the other hand, it would be unsatisfactory if there were other decisions given by the High Court on the same points that had greater authority.
- The fourth way in which social security cases may come before a High Court judge is in the exercise of the supervisory jurisdiction that the High Court retains over Commissioners. In R(SB) 52/83, which was decided very soon after it had been held in Bland v. Chief Supplementary Benefit Officer [1983] 1 WLR 262 (CA) that a Commissioner's refusal of leave to appeal to a Commissioner could not be challenged on appeal to the Court of Appeal and before there was any practical experience of challenges in the High Court, it was held that the High Court was concerned only with correctness of the decision refusing leave and not with the substantive issue that would arise on the appeal if leave were given. In practice, in order to persuade a judge that a Commissioner plainly erred in refusing leave, it is often necessary for an applicant to show that an appeal to the Commissioner might have succeeded and the simplest way of doing that is often to argue the substantive point before the High Court judge. If, in addition to challenging the Commissioner's refusal of leave, the applicant has taken the precaution of applying for judicial review of the tribunal's decision and, in appropriate cases, the adjudication officer's decision, it is then possible for the judge to give a final ruling on the substantive point and, in effect, to give the decision that a Commissioner would have given on the appeal had leave not been refused. This possibility was admitted to, but not encouraged, in Regina v. Secretary of State for Social Services, ex parte Connolly [1986] 1 WLR 421 (CA). However, it does not follow that the ruling on the substantive point is made in the exercise of the High Court's supervisory jurisdiction in respect of Commissioners. This point was very clearly made in Regina v. Social Security Commissioner, ex parte Akbar (28 October 1991), where the applicant had challenged only the Commissioner's refusal of leave to appeal. In determining the application, Hodgson J considered the substantive issue and concluded that the decision of the social security appeal tribunal was, on its face, wrong in law. He therefore quashed the Commissioner's refusal of leave but he expressly made it clear that his decision was not binding upon the Commissioner who would eventually consider the appeal. That was consistent with the approach taken in R(SB) 52/83 and seems to me to be a clear recognition by the judge that, in considering the substantive point, he had been exercising a jurisdiction co-ordinate with that of the Commissioners.
- Mr. Cooper referred me to CS/140/1991 in which a Commissioner held that he was bound to follow the decision of Hodgson J in Akbar despite Hodgson J himself having said that his decision was not binding on the Commissioner who would consider Mr. Akbar's appeal. I respectfully suggest that the Commissioner's decision was based on a misreading of Tal because the Commissioner did not draw any distinction between the effect of a decision of a single judge and a decision of a divisional court.
- I have come to the conclusion that decisions on substantive points of social security law made by the High Court in exercise of its supervisory jurisdiction are all to be regarded as being made in a jurisdiction co-ordinate with that of Commissioners and that I should take the same approach to them as would a single judge of the High Court. I consider that I am not bound to follow a decision of a single High Court judge but should do so unless convinced that it is wrong. I should take the same approach to a decision of a judge of the Outer House of the Court of Session. On the other hand, like a judge of the High Court, I would regard myself as bound by a decision of a divisional court (other than, perhaps, in the special circumstances identified in R(SB) 52/83) for much the same reasons that I am bound by a decision of a Tribunal of Commissioners. I note that in Chapman v. Goonvean and Rostowrack China Clay Co. Limited [1973] ICR 50 (affirmed on appeal [1973] ICR 310) the National Industrial Relations Court decided that they were not bound by a decision of the Divisional Court because, like Commissioners, they had jurisdiction in Scotland as well as England and Wales and there was no equivalent in Scotland to a Divisional Court. However, there is now equivalence between a single judge of the High Court and a judge of the Outer House of the Court of Session and the reasoning behind that decision is now less compelling in the context of Commissioners. Furthermore, I take R(SB) 52/83 as authority for the proposition that a Tribunal of Commissioners would not regard themselves as bound by a decision of a divisional court, in which case a Commissioner in Scotland, faced by what he regarded as an unsatisfactory decision of a divisional court, could take the action that it was suggested in R(U) 4/88 should be taken when a Commissioner is faced with an apparently unsatisfactory decision of a Tribunal of Commissioners and refer the case to the Chief Commissioner so that it might be considered by another Tribunal of Commissioners.
- It follows from all this, that I am not strictly bound by the decision of Dyson J in Vijeikis, Okito and Zaheer but that I should follow it unless convinced that it is wrong. Ms. Fitzpatrick submitted that Dyson J's decision was wrong. She argued that it had the effect that the word "immediately" was implied into the regulation to qualify "before" and she cites authority to the effect that it is a strong thing to imply into a statutory provision a word that is not there. She also relied on the unconventionality of the transitional provision if it has the effect contended for by Mr. Cooper. She says that, contrary to the point made by Mr. Drabble for the Secretary of State in argument before Dyson J, regulation 12 of the 1996 Regulations is not an "ordinary saving clause" because it is not in a form conventionally used in social security provisions where transitional protection is to be confined to those entitled to benefit at the date when amendments take effect. Usually, such a saving provision is applied expressly to those who were entitled to benefit "immediately" before the date the relevant legislation comes into force or who were entitled to benefit on a specified date which is in fact the day before the legislation comes into force. There is some force in those points. However, as I understand the second of Dyson J's reasons, he did not reach the conclusion he did by implying the word "immediately" into the regulation regardless of the actual language. It was the use of the present tense in paragraphs (2) and (3) of the regulation which persuaded him that the claimant must have been entitled to benefit at the time that the 1996 Regulations came into force if he was to be able to take advantage of the transitional protection. In those circumstances, it is quite proper to read those paragraphs as applying only to those who were entitled to benefit at, or immediately before, the time the Regulations came into force, and to extend that construction to paragraph (1). Ms. Fitzpatrick also suggested that there were cogent reasons why the Secretary of State might have chosen to confer the protection on people who had been claimants at any time before 5 February 1996. I agree, but Dyson J also recognised that point when giving the third of his reasons. He felt compelled by the language to take the view that the Secretary of State had decided to confer the protection on a more limited class of people. In my respectful view, Dyson J's decision was correct. I agree that a claimant is not entitled to transitional protection under regulation 12 of the 1996 Regulations unless he or she was entitled to the relevant benefit at the time the those Regulations came into force on 5 February 1996. The present claimant was not entitled to income support on 4 or 5 February 1996 and therefore was not entitled to income support on his subsequent claim.
- I therefore allow the adjudication officer's appeal. I set aside the decision of the Walthamstow social security appeal tribunal dated 22 July 1996 and give the decision the tribunal should have given which is that the claimant was not entitled to income support from 22 March 1996.
- In this case, the claimant arrived in the United Kingdom on 5 December 1995. On 2 January 1996 he applied for asylum. He then claimed income support which was paid by way of an urgent cases payment under regulation 70 of the Income Support (General) Regulations 1987 until 1 February 1996. On 2 February 1996, he started work. He did not claim income support again until 2 August 1996. On 14 August 1996, an adjudication officer decided that the claimant was not entitled to income support under regulation 70 of the 1987 Regulations, as amended by the 1996 Regulations, because he did not claim asylum on his arrival in the United Kingdom. On 18 February 1997, the Scarborough social security appeal tribunal allowed the claimant's appeal, holding that regulation 12(1) of the 1996 Regulations applied to him. The adjudication officer now appeals against the tribunal's decision with my leave.
- Regulation 8(2) and (3)(c) of the 1996 Regulations was held in Regina v. Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 to be ultra vires, to the extent that it made the amendments relevant to this case, and it was only restored by paragraph 2 of Schedule 1 to the Asylum and Immigration Act 1996. Nevertheless, the material date on which the Regulations came into force for the purpose of regulation 12(1) as it applies to this case remains 5 February 1996, rather than 24 July 1996 which was the date when the Act came into force (see Regina v Secretary of State for Social Security, ex parte T (18 March 1997, CA)). The claimant was not entitled to income support on 4 and 5 February 1996 and, therefore, in the light of Dyson J's decision in Vijeikis, Okito and Zaheer, it is clear that the claimant was not entitled to income support under domestic law when he reclaimed benefit in August 1996.
- However, Ms. Fitzpatrick submitted that the claimant was entitled to benefit by virtue of Regulation (EEC) 1408/71. She submitted that he was a worker and a refugee within Article 1(a) and (d) and therefore was a person within the scope of the Regulation by virtue of article 2. She further submitted that income support was a benefit within the scope of the Regulation by virtue of Article 4(2a). Accordingly, she submitted that the claimant was entitled to the benefit of Article 3(1) which provides:-
- Mr. Cooper did not admit that the claimant was either a worker or a refugee but he accepted that further investigations would have to be made before any findings on those issues could be made and that the claimant might well turn out to be a worker. He did accept that income support was a benefit within the scope of Article 4(2a). However, he took a fundamental objection to Ms. Fitzpatrick's case. In his submission, the present case does not fall within the scope of Regulation (EEC) 1408/71 at all because the case does not involve any movement from one member state to another.
- He referred me to the recent decision of the European Court of Justice in Land Nordrhein-Westfalen v. Uecker and Jacquet v. Land Nordrhein-Westfalen (joined cases C64/96 and C65/96). In those cases, a Norwegian national and a Russian national, married to German nationals, lived in Germany and were employed there as foreign language assistants on fixed-term contracts. They challenged the right of their employer to limit the term of their employment and sought to rely on article 11 of Regulation (EEC) 1612/68 which provides:
- The answer to be given must therefore be that a national of a non-member country married to a worker having the nationality of a Member State cannot rely on the right conferred by Article 11 of Regulation No. 1612/68 when that worker has never exercised the right to freedom of movement within the Community."
- I therefore allow the adjudication officer's appeal. I set aside the decision of the Scarborough social security appeal tribunal dated 13 February 1997 and substitute my own decision which is that the claimant was not entitled to income support from 2 August 1996.
- The claimant in this case arrived in the United Kingdom on 30 September 1994 and claimed asylum on 10 October 1994. She was awarded family credit. The precise periods of awards are obscure and Ms. May very properly said there was at least a doubt as to whether she was actually entitled to family credit during February 1996. However, the case has proceeded this far on the basis of an express concession of the adjudication officer who prepared the submission to the tribunal which was to the effect that the claimant was entitled to family credit at the time when the 1996 Regulations came into force. Both parties have asked me to deal with this case on that basis. It is not an unrealistic basis. It is possible that there was a late claim at some stage and that, whether rightly or wrongly, that had the consequence that benefit was awarded for a period that was not exactly 26 weeks. The Family Credit Unit have destroyed the records that would enable the true history to be established.
- The claim with which I am concerned with made on 14 September 1996. It was a repeat claim and it makes no difference whether or not it was the first such claim made after the 1996 Regulations came into effect. The adjudication officer disallowed the claim on the ground that the claimant could not be treated as being in Great Britain because she was an asylum seeker (see section 128(1) of the Social Security Contributions and Benefits Act 1992, regulation 3(1)(aa) and (1A) of the Family Credit (General) Regulations 1987, as amended by regulation 6 of the 1996 Regulations, and R(FC) 2/93). She appealed on the ground that she was entitled to transitional protection under regulation 12(3) of the 1996 Regulations. It will be recalled that, as it applies to family credit, regulation 12(3) provides:-
- The problem which arises in the present case does so because, by virtue of section 128(3) of the Social Security Contributions and Benefits Act 1992, family credit is awarded for periods of 26 weeks at a time, a repeat claim being required at the end of each period. Mr. Cooper submitted that regulation 12(3) of the 1996 Regulations operates to continue entitlement for those persons receiving family credit at the time those Regulations came into effect, and that, as the only entitlement the claimant had at that time was by virtue of her current award of benefit, a literal construction of the regulation would have the effect that her entitlement could be continued only down to the end of that award. Alternatively, he submitted that reading regulation 12(3) as conferring protection only until the end of a current award was the only construction which would lead to a reasonable result and that, if necessary, the provision should be given a purposive construction to avoid absurdity. He relied particularly on the references in regulation 12(3) to reviews and he sought to bolster that part of his submission by referring me to paragraph 32 of the explanatory memorandum submitted by the Department of Social Security with the draft 1996 Regulations when they were referred for consideration by the Social Security Advisory Committee under section 174 of the Social Security Administration Act 1992. The Committee's report and related documents are published as Cm 3062. Paragraph 32 of the explanatory memorandum says:
- I do not accept the first part of Mr. Cooper's submission. Regulation 12(3) is not drafted in terms of continuation of entitlement but in terms of the Family Credit (General) Regulations 1987 having effect in their unamended form until a specified event occurs. There is no prima facie reason why they should cease to have effect in that form upon the termination of a particular award of benefit. In the first of his reasons for his decision in Vijeikis, Okito and Zaheer, Dyson J said that "[i]t would be inapt to speak of someone who once was, but no longer is entitled to benefit, as a person as regards whom the provisions 'continue' to have effect". In paragraphs (2) and (3), that word "continue" that appears in paragraph (1) is omitted. However, even if that word should be read into paragraph (3), it might only have the effect that the transitional protection could last only until a claimant first ceased to be entitled to benefit. It would not necessarily follow that he or she could not rely on the protection during entitlement conferred by successive awards in respect of periods following immediately one upon an other. In the absence of any reference to reviews I would also reject Mr. Cooper's submission that there is any absurdity in the construction placed on the paragraph by the tribunal. I do not consider that it would be at all absurd if protection were to be granted on successive awards of family credit. Protection under regulation 12(1) and (2) is open ended. It is only a formal procedural rule that requires claims for family credit to be made at 26 week intervals. Of the other benefits mentioned in regulation 12(3), disability working allowance is subject to a similar rule but attendance allowance and disability living allowance are usually awarded for longer periods or for life and severe disablement allowance and invalid care allowance may be the subject of indefinite awards. It would not have been unreasonable to provide that transitional protection should continue in respect of all of the benefits mentioned in regulation 12(3) for as long as the claimant continued to qualify for them on successive claims. That is not to say that the construction for which Mr. Cooper contended would produce an unreasonable result: only that there may be more than one reasonable approach to transitional protection.
- It is the reference to reviews that is Mr. Cooper's strong point. Ordinarily, a review under section 25 or 30 of the Social Security Administration Act 1992 may lead to an increase in entitlement, or to a reduction of entitlement, or to a complete loss of entitlement or, in the light of Saker v. Secretary of State for Social Services (16 January 1988, CA, reported as an appendix to R(I) 2/88), to no change in entitlement at all. Regulation 12(3) is so drafted that, on any such review, a claimant who is dependent on transitional protection under that paragraph loses the protection and so ceases to be entitled to benefit. As a review may take place at any time, this seems just as arbitrary in its effect on individual claimants as the immediate withdrawal of all entitlement on 5 February 1996 would have been and, indeed, claimants in identical situations may be treated differently. On the other hand, claimants obviously have the advantage of the transitional protection until the review takes place and the problems arising from the withdrawal of benefit are spread out over time. The importance that the reference to reviews has in the present case is that it supports Mr. Cooper's contention that it was intended that transitional protection should continue only until it was necessary for the claimant's case to be looked at again. If that contention is right, it must have been anticipated that the protection should not be available on a repeat claim.
- Mr. Cooper's reference to the memorandum to the Social Security Advisory Committee does not seem to me to advance his case at all. There is no indication that the Department had addressed their minds to repeat claims, unless, in the light of section 11(3) of the Social Security Administration Act 1992, something can be made of the obscure last sentence of the paragraph on which he relied. In the absence of any reference to reviews, the phrase "new claims" might well have been intended to exclude repeat claims. Furthermore, the draft regulations submitted to the Committee suggest that the Department's understanding of the fine detail of procedural matters was not complete. That draft contained no reference to section 30 of the Social Security Administration Act 1992. Section 25 provides for the review by adjudication officers of decisions of adjudication officers, tribunals and Commissioners but it does not apply to decisions relating to attendance allowance, disability living allowance or disability working allowance. Section 30 provides for the review by adjudication officers of decisions of adjudication officers relating to those benefits. Section 35 provides for the review by adjudication officers of decisions of tribunals and Commissioners relating to those benefits. The failure to include any reference to section 30 in the draft regulations appears to have been an oversight and it was remedied when the 1996 Regulations were finally made. It is odd that there remains no reference to section 35 and I presume that that is the result of another oversight.
- In any event, without reference to the memorandum to the Committee, I am satisfied that, despite the language of regulation 12(3), Mr. Cooper is right in so far as he submitted that it must have been intended that the transitional protection should not apply on a repeat claim. It really is quite inconceivable that it should have been intended that the transitional protection should be lost on a review but not on a repeat claim. In this context, I use the word "intended" as meaning "intended or would have been intended had the point not been overlooked". The question is whether the language of the provision defeats the purpose behind it. In Jones v. Wrotham Park Settled Estates [1980] AC 74, 105, Lord Diplock said:
- However, I consider it to be reasonable to read the words "continue to" into regulation 12(3) so that the main clause reads "those Regulations shall .... continue to have effect" and then to give that clause the meaning for which Mr. Cooper contended, ie, that the regulations continue to have effect in their unamended form until the expiration of the current award. That is presumably what the draftsman himself or herself thought the clause meant; otherwise there would have been a specific reference to the expiration of an award. It seems unlikely that the omission of the words "continue to" in paragraphs (2) and (3) was deliberate and intended to have the effect that those paragraphs should operate in a different way from paragraph (1). Paragraph (2) did not appear in the draft submitted to the Social Security Advisory Committee and Mr. Cooper suggested that the regulations might have been drafted by more than one person. I accept that the use of different language in similar provisions is generally intentional, showing that they should be construed differently, but is sometimes accidental, so that no such inference can be drawn. In my view, regulation 12(3) should be construed so that transitional protection continues only during the period covered by the award of benefit that was current on 5 February 1996.
- I am therefore satisfied that the tribunal misconstrued regulation 12(3), although they can be forgiven for doing so in view of the way it was drafted. The claimant was not entitled to transitional protection on her repeat claim. This result is harsh but the claimant is treated no more harshly than those whose first claim was made after the 1996 Regulations came into force. As Dyson J pointed out in the third of his reasons in Vijeikis, Okito and Zaheer, if Parliament intends a harsh result, a purposive construction does not assist the claimant.
- I therefore allow the adjudication officer's appeal. I set aside the decision of the Leicester social security appeal tribunal dated 18 December 1996 and substitute my own decision which is that the claimant was not entitled to family credit as a result of the claim made on 14 September 1996.
- This Regulation shall apply to employed or self-employed persons who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as to the members of their families and their survivors.
- In addition, this Regulation shall apply to the survivors of employed or self-employed persons who have been subject to the legislation of one or more Member States, irrespective of the nationality of such employed or self-employed persons, where their survivors are nationals of one of the Member States, or stateless persons or refugees residing within the territory of one of the Member States."
- Without very specific indications to the contrary a Community provision does not apply to a case that is wholly internal to a single Member State. That is particularly the case with regard to the provisions of Community law that relate to or implement the rules as to freedom of movement and freedom to provide services. Regulation 1408/71 falls into that latter category. In Community terms the dispute between Mr. Krasniqi and the United Kingdom authorities as to the level of his unemployment benefit is wholly internal to the United Kingdom.
- The vires under which the power was granted to make Regulation 1408/71 are limited to powers to facilitate the movement of workers between Member States. Any construction of the regulation that extends it to a case that does not concern or affect in any way the movement of workers between Member States, as Mr. Krasniqi's argument seeks to extend it, would therefore render the regulation ultra vires.
- Many of the detailed provisions of Regulation 1408/71 only make sense when directed at a case that has involved in some way or other, or envisages the possibility of, movement between two or more Member States. I shall in due course demonstrate with particular reference to Article 10a of the regulation, which is addressed to "special non-contributory benefits" - a category into which, it was agreed before us, United Kingdom income support falls - that it is difficult or impossible to apply those detailed provisions of Article 10a to a case that concerns a situation arising only within a single Member State or to a case such as Mr. Krasniqi seeks to put.
- There is specific authority of the European Court of Justice directed at Regulation 1408/71 that holds in terms that that regulation cannot be applied to activities that are confined within one Member State. In my judgement, that authority is in any event fatal to this appeal and in particular is fatal to the application, also before us, that this court should refer that question or any question arising out of this case to the European Court of Justice under Article 177 of the Treaty.
- The Community Dimension
- On the other hand, both the title and provisions of the Regulation, as well as their interpretation by the Court, indicate that the necessary connection with one of the situations envisaged by Community law may arise otherwise than through the physical migration of the worker."
- It must accordingly be held that a person, such as the plaintiff in the main proceedings, who is a retired civil servant and has worked only in the State of which that person is a national, is covered by the Regulation where his dependent child has moved within the Community with his former spouse, if that retired person is, or has been, subject to legislation of the Member State to which the Regulation applies."
- The vires of Regulation 1408/71
- The provisions of Regulation 1408/71
- Specific authority on Regulation 1408/71
(Krasniqi v. Chief Adjudication Officer and Anor.)
Mr. M. Rowland CIS/16992/1996
23.12.97 CIS/2809/1997 CFC/1580/1997
CA (Stuart-Smith, Thorpe and Buxton LJJ)
10.12.98
Commissioner - judicial precedent - whether Commissioner bound by a single High Court judge exercising the supervisory jurisdiction of the High Court
Person from abroad - transitional protection - whether entitled to benefit "before the coming into force of" the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996
Person from abroad – discrimination on ground of nationality - whether Council Regulation (EEC) 1408/71 applies to a case that is wholly internal to a Member State
Family credit - person from abroad - transitional protection - whether continuing after the expiry of the award current on the coming into force of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996
In CIS/16992/1996, the claimant was given indefinite leave to remain in the United Kingdom, having been sponsored by his son. His son ceased to be able to support him and he was awarded income support from August 1995 until November 1995 when he went to India. He returned to the United Kingdom on 14 March 1996 and again claimed income support. His claim was disallowed by the adjudication officer on the ground that he was a person from abroad whose applicable amount was nil by virtue of regulation 21 of the Income Support (General) Regulations 1987 as amended by regulation 8(2) of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 and he was not entitled to urgent cases payments under regulation 70 of the 1987 Regulations as amended by regulation 8(3)(a) of the 1996 Regulations. The amendments had come into force on 5 February 1996. He appealed to a tribunal who allowed his appeal on the ground that he had been entitled to income support "before the coming into force of these Regulations" and so was entitled to transitional protection under regulation 12(2) of the 1996 Regulations. The adjudication officer appealed to the Commissioner.
In CIS/2809/1997, the claimant arrived in the United Kingdom on 5 December 1995 and claimed asylum on 2 January 1996. He was awarded income support which was paid until 1 February 1996. On 2 February 1996, he started work. He claimed income support again on 2 August 1996 and the adjudication officer disallowed his claim on the ground that he was not an asylum seeker for the purposes of regulation 70 of the 1987 Regulations as amended by regulation 8(3)(c) of the 1996 Regulations because he had not claimed asylum on his arrival. He appealed to a tribunal who allowed his appeal on the ground that he had been entitled to income support "before the coming into force of these Regulations" and so was entitled to transitional protection under regulation 12(1) of the 1996 Regulations. The adjudication officer appealed to the Commissioner.
In CFC/1580/1997, the claimant arrived in the United Kingdom on 30 September 1994 and claimed asylum on 10 October 1994. She was subsequently awarded family credit and was entitled to it at the time the 1996 Regulations came into force on 5 February 1996. An adjudication officer disallowed a renewal claim made in September 1996 on the ground that, under regulation 3(1)(aa) and (1A) of the Family Credit (General) Regulations 1987 as amended by regulation 6 of the 1996 Regulations, the claimant could not be treated as being in Great Britain because she was an asylum seeker. She appealed to a tribunal who allowed her appeal on the ground that she had been entitled to family credit before the coming into force of the 1996 Regulations, her entitlement had not been reviewed and so, under regulation 12(3) of the 1996 Regulations, the 1987 Regulations continued to have effect as if regulation 6 of the 1996 Regulations had not been made. The adjudication officer appealed to the Commissioner.
Held, by the Commissioner, allowing all three appeals, that:
The Commissioner substituted his own decisions to the effect that the claimants were not entitled to benefit. The claimant in CIS/2809/1997 appealed to the Court of Appeal. By the time of the hearing he had been granted asylum and paid arrears of urgent cases payments of income support but, relying on Council Regulation (EEC) 1408/71, he contended he should have been paid income support at the ordinary rate.
Held, by the Court of Appeal, dismissing the appeal, that:
[Note: The decision of Dyson J was upheld by the Court of Appeal in Regina v. Secretary of State for Social Security, ex parte Vijeikis (unreported, March 5, 1998). The decision of the Commissioner in CFC/1580/1997 was considered by the Court of Appeal in Regina v. Chief Adjudication Officer, ex parte B [1999] 1 WLR 1695.]
"(1) Where, before the coming into force of these Regulations, a person who becomes an asylum seeker under regulation 4A(5)(a)(i) of the Council Tax Benefit Regulations, regulation 7A(5)(a)(i) of the Housing Benefit Regulations or regulation 70(3A)(a) of the Income Support Regulations, as the case may be, is entitled to benefit under any of those Regulations, those provisions of those Regulations as then in force shall continue to have effect (both as regards him and as regards persons who are members of his family at the coming into force of these Regulations) as if regulations 3(a) and (b), 7(a) and (b) or 8(2) and (3)(c), as the case may be, of these Regulations had not been made.
(2) Where, before the coming into force of these Regulations, a person, in respect of whom an undertaking was given by another person or persons to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled, or is receiving benefit, under the Council Tax Benefit Regulations, the Housing Benefits Regulations or the Income Support Regulations, as the case may be, those Regulations then in force shall have effect as if regulations 3, 7 or 8, as the case may be, of these Regulations had not been made.
(3) Where, before the coming into force of these Regulations, a person is receiving attendance allowance, disability living allowance, disability working allowance, family credit, invalid care allowance or severe disablement allowance under, as the case may be, the Attendance Allowance Regulations, Disability Living Allowance Regulations, Disability Working Allowance Regulations, Family Credit Regulations, Invalid Care Allowance Regulations or Severe Disablement Allowance Regulations, those Regulations shall, until such time as entitlement to that benefit is reviewed under section 25 or 30 of the Social Security Administration Act 1992, have effect as if regulation 2, 4, 5, 6, 9 or 11, as the case may be, of these Regulations had not been made."
Each of the claimants relies upon a different paragraph of that regulation. It is convenient to consider each case separately.
CIS/16992/1996
"(1) The words 'those provisions of those regulations as then in force shall continue to have effect' are fatal to Mr. Duffy's argument. They show clearly that the paragraph is concerned to preserve the entitlement of persons who are entitled to benefit at the time when the relevant provisions are in force. This interpretation is confirmed and supported by the amendment, which speaks of 'at the coming into force of these Regulations'. It would be inapt to speak of someone who once was, but no longer is entitled to benefit, as a person as regards whom the provisions 'continue' to have effect. For something to continue, it must exist; it cannot be something that once existed, but no longer exists. In my view, Mr. Drabble is right when he submits that this is an ordinary saving clause, which preserves the entitlement to benefit of someone who has claimed political asylum, and who is currently entitled to benefit at the time when the regulations come into force. I do not consider that it is possible to read the paragraph in any other way.
(2) This interpretation is supported by the language of regulation 12(2) and (3). These paragraphs are also part of the saving provision. Paragraph (2) provides:
"Where, before the coming into force of these Regulations, a person, in respect of whom an undertaking was given by another person or persons to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled, or is receiving benefit, ... those Regulations as then in force shall have effect as if .." (my emphasis)
Paragraph (3) provides:
"Where, before the coming into force of these Regulations a person is receiving attendance allowance ... under ... Regulations, those Regulations shall ..." (my emphasis).
It will be seen that the only persons who are protected by these saving provisions are ones who are currently entitled to or are receiving benefit at the time when the regulations come into force. Although in each case the phrase 'before the coming into force of these regulations' is used, it is clear that paragraph (2) and (3) do not apply to persons who once were, but no longer are entitled to or receiving those benefits or allowances. The significance of paragraph (2) and (3) is twofold. First, it would be surprising if the phrase 'before the coming into force of these regulations' were to bear a different meaning in paragraph (1) from that in the other paragraphs. Secondly, it is clear that, in relation to the benefits and allowances referred to in paragraphs (2) and (3), Parliament did intend to limit the effect of the saving provision to persons who were entitled to them at the time when the regulations came into force, notwithstanding the curtailment of human rights involved, and despite any retrospective effect of the regulations.
(3) I feel driven to accept Mr. Drabble's construction by the clear language of regulation 12(1). The implications of this interpretation are a matter of great concern. The plight of asylum seekers who are denied income support, is, in many cases, appalling, even though it has to some extent been mitigated by the Westminster decision. It is true that the Courts now favour a purposive, rather than a literalist approach to statutory interpretation. The difficulty facing the applicants in this case is that the purpose of the 1996 Regulations is plain and obvious: it is, inter alia, to curtail the rights to benefit of asylum seekers. Thus, a purposive approach does not assist Mr. Duffy's argument at all. The only question is how generous a saving provision is to be found in regulation 12(1). It would have been open to Parliament to draft a saving provision, which provided that the original and more liberal definition of 'asylum seeker' would continue to apply to all those who had entered the United Kingdom at the time when the 1996 Regulations came into force. But Parliament chose to draft the saving provision in a far more restrictive way, and by reference to entitlement to benefit at that time.
(4) I have taken account of Mr. Duffy's argument that Mr. Drabble's construction means that persons who once were entitled to benefit, but who at the date when the 1996 Regulations came into force have found employment, are penalised for their efforts in so doing, and that that is irrational and absurd. I can accept that it is very unfair. If, however, the submission is that it is so absurd and irrational that it cannot of been intended by Parliament, then I cannot agree. The saving provision was intended to avoid the unfairness that would have resulted if a person who was entitled to benefit lost that benefit overnight by reason of the amendments. The saving provision cannot be criticised for absurdity or unfairness so far as it goes. The argument is that it should have gone further. In the context of regulations which are, to use the words of Simon Brown LJ, 'so draconian', I do not find it particularly surprising that the saving provision went no further. Above all, I see nothing in this point that causes me to doubt that regulation 12(1) bears the clear meaning that I have found."
"21. In so far as the Commissioners are concerned, on questions of legal principle, a single Commissioner follows a decision of a Tribunal of Commissioners unless there are compelling reasons why he should not, as, for instance, a decision of superior Courts affecting the legal principles involved. A single Commissioner in the interests of comity and to secure certainty and avoid confusion on questions of legal principle normally follows the decisions of other single Commissioners (see decisions R(G) 3/62 and R(I) 23/63). It is recognised however that a slavish adherence to this could lead to the perpetuation of error and he is not bound to do so.
In R(U) 4/88, another Tribunal of Commissioners held that, on rare occasions, one Tribunal of Commissioners might depart from the decision of another Tribunal of Commissioners.
"If a judge of the High Court sits exercising the supervisory jurisdiction of the High Court then it is, in our judgment, plain that the relevant principle of stare decisis is the principle applicable in the case of a judge of first instance exercising the jurisdiction of the High Court, viz., that he will follow the decision of another judge of first instance, unless he is convinced that that judgment is wrong, as a matter of judicial comity; but he is not bound to follow the decision of a judge of equal jurisdiction (see Huddersfield Police Authority v. Watson [1947] KB 842, 848, per Lord Goddard CJ), for either the judge exercising such supervisory jurisdiction is (as we think) sitting as a judge of first instance, or his position is so closely analogous that the principle of stare decisis applicable in the case of a judge of first instance is applicable to him. In our judgment, the same principle is applicable when the supervisory jurisdiction of the High Court is exercised not by a single judge, but by a divisional court, where two or three judges are exercising precisely the same jurisdiction as the single judge. We have no doubt it would be only in rare cases that a divisional court will think it fit to depart from a decision of another divisional court exercising this jurisdiction. Furthermore, we find it difficult to imagine that a single judge exercising jurisdiction would ever depart from a decision of a divisional court. If any question of such a departure should arise before a single judge, a direction can be made under RSC, Ord. 53, r. 5(2), that the relevant application should be made before a divisional court."
"A distinction has to be drawn in decisions of the High Court exercising its supervisory jurisdiction which are, and always have been, binding on the Commissioners and the particular jurisdiction conferred on the High Court by the [1971] Act and the statutory instrument to which we have referred. The supervisory jurisdiction of the High Court is wide and discretionary. That given to the High Court between 1 January 1978 and 24 November 1980 was much narrower and was not discretionary. The effect of the 1980 Order was to transfer the narrow jurisdiction from the High Court to the Commissioners, probably for reasons of convenience. In these circumstances, it cannot, in our judgment, have been intended that when exercising this same jurisdiction the Commissioner should be bound by earlier decisions of the High Court."
In Commock v Chief Adjudication Officer (reported as an appendix to R(SB) 6/90, Purchas LJ said:
"If the judgment of the Court of Appeal which was delivered by Lawton LJ in Chief Supplementary Benefits Officer v Leary, referred to in the text, is consulted, it will be found that a clear distinction is drawn between the role of the High Court Judges exercising their powers under the statutory provisions concerned and the supervisory role of the Judges of the High Court exercising their judicial review jurisdiction. Decisions of the High Court Judges in the latter role, it should be made perfectly plain are, of course, binding upon the Commissioners, as indeed is indicated in the first sentence of the passage which I have quoted from the text book." Neither of the other members of the Court said anything on that issue and Purchas LJ admitted that it was "really a collateral but, in my judgment, important matter."
"12. In our view, therefore, basically the same appellate jurisdiction has been exercised in turn by the Divisional Court, a single Judge of the High Court and now by the Commissioner. Accordingly, the judgments of the Divisional Court in this context arise, to quote paragraph 11 of the unreported Decision of a Tribunal of Commissioners in CSB/838/1982 [later reported as R(SB) 6/85] "out of a co-ordinate and not a superior jurisdiction and [are] therefore not binding upon us. There is no statue or common law rule by which one court is bound to abide the decision of another court of co-ordinate jurisdiction". The Tribunal in that case, citing a number of authorities (paragraph 11 of their Decision), concluded that it was not bound by the decision of a single High Court Judge on appeal from a supplementary benefit appeal tribunal, stating that decision to have persuasive but not binding force. We consider the position to be exactly the same with regard to the decisions of the Divisional Court on certiorari from supplementary benefit appeal tribunals. We would emphasise that by so saying we are merely referring to cases where the Divisional Court in the past has exercised the same jurisdiction as is now conferred on the Commissioner. Where there has been a ruling of the Divisional Court in exercise of any other of their jurisdictions eg on certiorari from a Commissioner, then of course we regard the rulings of that court as binding on us (see the statement of a Tribunal of Commissioners to this effect in R(I) 12/75 (paragraph 22)). In this connection we might usefully add that a Commissioner's refusal of leave to appeal is of course subject to judicial review, when appropriate (Bland v Chief Supplementary Benefit Officer [1983] All ER 537, CA, at 541 - Decision R(SB) 12/83 appendix). However the Divisional Court's powers are in our judgment, limited to setting aside the Commissioner's refusal to grant leave, the practical effect of which is that the Commissioner will grant leave and then proceed to deal with the appeal. The Divisional Court does not itself have jurisdiction to hear the appeal, that being the function which Parliament has entrusted exclusively to the Commissioner."
In referring to the Divisional Court in the latter part of that passage, the Tribunal overlooked the fact that, with the coming into force in 1981 of amendments to RSC, Ord. 53, most cases that would previously have been decided by a Divisional Court were, by then, decided by a single judge of the High Court. However, that does not affect the point made by the Tribunal that, in some cases, the High Court, in exercising its supervisory jurisdiction, exercises a jurisdiction that is co-ordinate with that of the Commissioners.
CIS/2809/1997
"Subject to the special provisions of this Regulation, persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State."
Ms. Fitzpatrick had some difficulty in precisely formulating what the inequality of treatment was in the present case and explaining why it should be regarded as unlawful. Obviously, an asylum seeker who has not claimed asylum on arrival is treated less favourably than a national of the United Kingdom, but not all asylum seekers are prevented from receiving income support. It is not unlawful to create rules to prevent certain classes of claimant from obtaining benefit or to entitle some people to more benefit than others.
"Where a national of a Member State is pursuing an activity as an employed or self-employed person in the territory of another Member State, his spouse and those of the children who are under the age of 21 years or dependent on him shall have the right to take up any activity as an employed person throughout the territory of that same State, even if they are not nationals of any Member State."
The Court held:-
"23 ..., it must be noted that citizenship of the Union, established by Article 8 of the EC Treaty, is not intended to extend the scope ratione materiae of the Treaty also to internal situations which have no link with Community law. Furthermore, Article M of the Treaty on European Union provides that nothing in that treaty is to affect the Treaties establishing the European Communities, subject to the provisions expressly amending those treaties. Any discrimination which nationals of a Member State may suffer under the law of that state fall within the scope of that law and must therefore be dealt with within the framework of the internal legal system of that State.
They so ruled. There does not appear to be a similar authority specifically relating to Regulation (EEC) 1408/71 and article 11 of Regulation (EEC) 1612/68 is expressly limited to cases where workers (ie, the husbands of the litigants before the Court) are nationals of one Member State and are pursuing activities in another. However, I accept Mr. Cooper's submission that the reasoning applied by the Court must apply to Regulation (EEC) 1408/71 as it applies to Regulation (EEC) 1612/68. As Mr. Cooper pointed out, the Regulation was made pursuant to Article 51 of the Treaty of Rome which provides for the adoption of "such measures in the field of social security as necessary to provide freedom of movement of workers" and it is concerned with the co-ordination of social security schemes rather than the imposition of a common standard. For the purpose of applying the judgment of the Court to the present case, it seems to me that a refugee from a non-member country must be treated as being in the same position as a national of the Member State in which he or she claims asylum. The effect of the judgment of the Court is, therefore, that any discrimination which a refugee from a non-member country may suffer under the law of the Member State where he or she has claimed asylum falls within the scope of that law and must therefore be dealt with within the framework of the internal legal system of that State. It is, I think, the lack of movement between Member States that makes it difficult for Ms. Fitzpatrick precisely to formulate the terms of the inequality of treatment that is said to be unlawful. I am satisfied that the claimant can derive no benefit from European Union law.
CFC/1580/1997
"Where before the coming into force of these regulations, a person is receiving ... family credit ... under ... the ... Family Credit Regulations ..., those Regulations shall, until such time as his entitlement to that benefit is reviewed under section 25 ... of the Social Security Administration Act 1992, have effect as if regulation ... 6 ... of these Regulations had not been made."
On 18 December 1996, the Leicester social security appeal tribunal allowed the claimant's appeal, reasoning that, as she had been receiving family credit under the Family Credit Regulations before the coming into force of the 1996 Regulations, and as her entitlement to that benefit had not in fact been reviewed under section 25 of the Social Security Administration Act 1992, the Family Credit Regulations continued to have effect in her case as if regulation 6 of the 1996 Regulations had not been made. The adjudication officer now appeals against that decision with the leave of a Commissioner.
"Transitional Arrangements
The Government proposes that the new benefit rules should apply to all new claims and reviews made after the coming into force of the regulations. Existing recipients will, therefore, continue to retain entitlement until a relevant change of circumstances leads to a review of their entitlement. Claims to disability working allowance will remain unaffected as entitlement depends on qualifying benefits which will themselves be subject to an exclusion."
The Committee themselves disapproved of the proposed amendments altogether and did not make any comment on that paragraph.
".... I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [1971] AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law."
I would accept that the three conditions identified by Lord Diplock for reading into an Act words that are not there are all satisfied in the present case. However, as I am engaged in the task of construing the legislation, it seems to me that the inserted words must be ones that can be added without doing too much damage to the general sense - as opposed to the literal sense - of the language used. For instance, I do not see how I can construe the clause "until such time as his entitlement to that benefit is reviewed under section 25 or 30 of the Social Security Administration Act 1992" as "until such time as his entitlement to that benefit comes to an end on the expiration of the award or is reviewed under section 25, 30 or 35 of the Social Security Administration Act 1992". There is a limit to the extent to which a purposive construction may be placed on wholly unsuitable language. I doubt that the omission of a reference to section 35 can be rectified by any process of statutory construction.
Date: 23 December 1997 (signed) Mr. M. Rowland
Commissioner
The claimant in CIS/2809/1997 appealed to the Court of Appeal. The decision of the Court of Appeal follows.
Mr. A. Nicol QC and Miss K. Markus (instructed by Messrs Hudson Freeman Berg, London WC1H 4EE) appeared on behalf of the Appellant.
Mr. N. Paines QC (instructed by The Treasury Solicitor) appeared on behalf of the Respondents.
LORD JUSTICE STUART-SMITH:
I will ask Lord Justice Buxton to give the first judgment.
LORD JUSTICE BUXTON:
This appeal springs from an attempt to apply the literal wording of a European Community legislative provision to a factual situation in which the Community has no legitimate interest. Like other such attempts it fails in limine.
The background to the claim is that the appellant, Mr. Krasniqi, is a Kosovan. He arrived in the United Kingdom on 5 December 1995 and was given temporary leave to enter. On 2 January 1996 he claimed political asylum. On that same day he claimed income support under the United Kingdom's social security provisions and was paid an urgent case payment under regulation 70 of the Income Support General Regulations 1987. He continued to draw that urgent case payment until 1 February 1996. On 2 February 1996 he started work and therefore ceased to claim income support. He worked until 31 July 1996, properly paying tax and National Insurance contributions during that period.
On 5 February of that year there was brought into operation the Social Security (Persons from Abroad) Regulations. Putting it briefly, the effect of those regulations was to exclude from eligibility for income support a person from abroad who was an asylum seeker but had not claimed asylum immediately on his entry into the United Kingdom. That, it will be recalled, was the position of Mr. Krasniqi.
On losing his employment in August 1996 Mr. Krasniqi again claimed income support for a period of 10 days, but stopped claiming on 12 August when again he entered employment. That period of employment existed until 24 September 1996 and there then followed periods of unemployment with which we are not concerned.
On 14 August 1996 an adjudication officer decided that Mr. Krasniqi was not entitled to income support because of the provision of the Persons from Abroad Regulations to which I have already referred. A social security tribunal allowed his appeal. In turn the Commissioner allowed the adjudication officer's appeal from the decision of the Appeal Tribunal and it is against that decision that Mr. Krasniqi appeals to this court.
On 3 November 1998 the Secretary of State for the Home Department notified Mr. Krasniqi's solicitors that he had been recognised as a refugee, that is to say granted asylum in this country. From the date of that notification he was entitled to claim income support at the full rate should his situation be such that he was otherwise entitled to it. He was also entitled to claim urgent case income support backdated to the time that he claimed asylum in respect of the periods when he was unemployed. That urgent case payment is paid at 90 per cent of the ordinary rate.
Mr. Krasniqi does not seek to challenge the interpretation of the United Kingdom domestic provisions that have been applied to him. He says, however, that none the less he should have been paid income support in exactly the same way and in exactly the same amount as a United Kingdom national who was claiming that benefit. His case is based entirely upon European Council Regulation 1408/71 and this appeal has been concerned with the proper interpretation and application of that regulation. I say as a footnote, but only as a footnote, that the effect of this appeal directly on Mr. Krasniqi is that, if he is right, he will recover the last 10 per cent of the amount of income support that would be appropriate to the period from 2 to 12 August 1996: when originally he was not paid support at all, and then given backdated support at the urgent case rate only of 90 per cent. The modesty of the immediate claim in issue does not, however, undermine the potential significance of the principle on which that claim is based.
That claim, as I have said, is based upon Regulation 1408/71. It will be necessary in due course to go to other parts of that regulation including, in particular, its recitals and vires. For the moment, however, it is only necessary to set out the parts of Articles 2 and 3 of the Regulation on which Mr. Krasniqi relies. Article 2 reads as follows:
"Persons covered
It is not necessary to read Article 2.3.
Article 3.1 is headed "Equality of treatment" and reads:
"Subject to the special provisions of this Regulation, persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that state."
Mr. Krasniqi's case, which I set out in very bald summary for the moment, is that he is entitled as a refugee to equality of treatment under Article 3 with the nationals of the state where he finds himself: that is to say the United Kingdom. He becomes a person to whom this regulation applies in that sense by reason of what is described in his skeleton as the "obvious grammatical meaning" of Article 2.1: that is to say that that article requires a person who is objectively a refugee from a non-Member State of the EU to a Member State of the EU to be given exactly the same rights to the benefits that are addressed in Regulation 1408/71 as are nationals of that Member State. Mr. Krasniqi's argument before this court was that the Commissioner was wrong to conclude that the terms of Regulation 1408/71 did not apply to a person such as Mr. Krasniqi who had not moved from one Member State to another.
In my judgment that argument and further developments of it, to which I shall in due course turn, was misconceived. That that is so can, in my estimation, be demonstrated by a number of separate considerations which I shall first of all summarise. Any single one of these four considerations, taken separately, is fatal to Mr. Krasniqi's argument, and they are separate considerations even though elements of them overlap. They are as follows:
I revert to those four points in more detail in turn.
First, European legislation, and in particular this part of it, only extends to facts that involve an interest of the Community. That has been expressed in different terms, including the formulation that it does not extend to cases that are wholly internal to a particular Member State or, as Mr. Paines QC for the respondent put it more colloquially, it only extends to facts that involve a Community dimension.
That is a long-standing and one might almost say trite principle of Community law. It is found, as I have said, in a wide range of cases involving a wide range of subject-matter. An early case where this principle was enunciated was Case 175/78 [1979] ECR 1129 Saunders, a case that we were referred to in passing, which concerned a worker's freedom of movement within a single Member State. A lady was required to give an undertaking as a condition of not being bound over that she would not return to Great Britain from Northern Ireland. The court said at paragraph 11 of its judgment:
"The provisions of the Treaty on freedom of movement for workers cannot therefore be applied to situations which are wholly internal to a Member State, in other words, where there is no factor connecting them to any of the situations envisaged by Community law."
Many other cases have so held. It would be sufficient for present purposes to go to Case C64/65/ [1996], Uecker, which was debated in front of us. In the report that is before us - [1997] 3 CMLR 963 – Mr. Advocate-General Fennelly, addressing Article 11 of Regulation 1612/68, which appeared in some translated texts to apply to situations that did not have a Community dimension of the type referred to by the court in, for instance, Saunders, said this at paragraphs 16 and 17 of his opinion:
"The Court has long held that '[the] provision of the Treaty on freedom of movement for workers cannot ... be applied to situations which are wholly internal to a Member State, in other words, where there is no factor connecting them to any of the situations envisaged by Community law'."
That is a citation by the learned Advocate-General from Saunders, and many other cases are mentioned by him in support of that formulation, including the case of Petit, to which I shall have to revert in due course.
The Advocate-General continued:
"The same is true of Regulation 1612/68: in Morson v Jhanjan, the Court specifically held that Community law does not permit a Member State from refusing to allow third-country relatives, who would otherwise benefit from Article 10 of the Regulation, to enter or reside in the territory where the worker has never exercised the right of freedom of movement within the Community."
He said at paragraph 27, in proposing the answer to the question which was posed to the court:
"Article 11 of Council Regulation 1612/68 on freedom of movement for workers within the Community should be interpreted as meaning that where the spouse of the Community worker is a national of a third country, the said spouse can rely upon the rights conferred by this provision only where the Community worker is pursuing an activity as an employed or self-employed person in the territory of a Member State other than that of which the worker is a national."
The court itself dealt with that aspect at paragraphs 16 and 17 of its judgment on page 975 of this report. It said:
"[16] It has been consistently held that the Treaty rules governing freedom of movement and regulations adopted to implement them cannot be applied to cases which have no factor linking them with any of the situations governed by Community law and all elements of which are purely internal to a single Member State....
[17] Consequently, Community legislation regarding freedom of movement of workers cannot be applied to the situation of workers who have never exercised the right to freedom of moment within the Community."
The court set out authority for that proposition, again citing Case C153/91, Petit.
Mr. Nicol QC, who appeared for Mr. Krasniqi, said that Uecker should be distinguished from our case, and did not conclude the matter, because it was addressing a different regulation from our case, a regulation that took its vires from Article 48 of the Treaty, which does directly address the issue of movement between Member States. But in my judgement the principle set out by the court in Uecker and by the Advocate-General is wider than the limitation to the particular regulation that it was addressing, not least because, as I shall demonstrate later in this judgment, Article 51, from which Regulation 1407/71 takes its vires, is part of the structure of Treaty provisions that as a whole deal with the question of movement between Member States. Further, it seems impossible to say that the case of Uecker is limited in its application so that it does not address Regulation 1408/71 at all when both the Advocate-General and the court relied for authority on, amongst other things, the case of Petit which does indeed address Regulation 1408/71.
In my judgement, Uecker and the cases preceding it upon which he relied are fatal to Mr. Krasniqi's contentions. There is no Community element in his case since in European Union terms his case and his dispute are wholly internal to a single Member State. There is, of course, an element in the case external to the United Kingdom in that Mr. Krasniqi came here from Kosovo. But that entry into this country and the terms and conditions on which it should take place is in Community terms solely a matter for the United Kingdom authorities: just as, as I would understand it, any other aspect of immigration policy into a Member State from outside the Community is either not a Community issue at all or at the very least not an issue that is addressed by Regulation 1408/71.
Mr. Nicol nonetheless deployed a number of arguments against that conclusion. Firstly, he said that a person who can invoke Regulation 1408/71 does not have to be a worker who has himself invoked any right of freedom of movement. That argument addresses what may have been the formulation of the issue in the case adopted by the learned Commissioner, which, if it was so adopted, was not, I have to say, quite in the terms of the Community rule as expressed by the European Court of Justice in the case of Saunders and the cases which have followed and applied it, including Uecker itself. That point, that the worker himself does not have to have invoked the right of freedom of movement is indeed, as I understood it, accepted and conceded by Mr. Paines on behalf of the respondents. But it may help to underlie the point at issue in this case and the relevance to it of the Uecker case to look briefly at the authority relied on by Mr. Krasniqi.
Mr. Nicol took us to Case 31/64 [1965] ECR 1981, Bertholet, and Case 27/69 [1969] ECR 405, Entr'aide Medicale. These were both concerned with a worker in one State being injured in another State. They do therefore in fact further establish, in my judgement, the need for a Community dimension in the application of the social security regulation provisions even if the applicant was not actually working in the State in which he was injured. This is indeed a far cry from a case such as ours when all the facts are limited to one Member State. Indeed, as Mr. Paines pointed out, the case of Entr'aide Medicale itself made it clear that what was described there as an international element was required when applying the predecessor regulation to Regulation 1408/71. Mr. Paines took us, indeed as Mr. Nicol had properly taken us, to paragraph 4 of the court's judgment at page 410, where the Court of Justice said this:
"The fact that the said provision [one of the terms of Regulation 3, the predecessor regulation to Regulation 1408/71] even refers to persons who come or have come under the legislation of a single Member State shows that, far from referring solely to migrant workers within the strict meaning of the term, the regulation is applicable to any wage-earner or assimilated worker who finds himself in one of the situations involving international elements as provided for in the said regulation, as well as to his survivors."
The international element there, of course, must necessarily be elements between Member States of the Community, not international elements on a wider understanding.
Further, these cases, referring as they do to the need for workers to be involved in some way or other, even if not injured whilst working, help to underline the limited effect of Regulation 1408/71, which is restricted to cases protected by the provisions of the Treaty with regard to free movement between Member States. Those provisions apply only in a context of movement or potential movement by economic operators, in this case employed workers or the self-employed. I add, very much as a footnote, that that understanding of the limited effect of the provisions on free movement appears to be that adopted by this court in the case of Secretary of State for the Home Department ex parte Vitale [1996] 2 CMLR 587, in paragraphs 18 and 19 of the judgment.
Mr. Nicol further argued that the case law demonstrated that it does not have to be the applicant for benefit who moves. That, in my judgement, is because of the specific terms of Article 2, which apply to members of the family and survivors of a worker as well as to workers themselves. We were shown in that connection the recent Case C-194/96 [1996] ECR 1895. Putting it very briefly, a claimant claimed child benefit in Germany in respect of a child who was in fact living in France. There are some illuminating observations, again by Mr. Advocate-General Fennelly, to be found at page 1907 of the report, paragraph 29 of his opinion, where he said this:
"As the national court observed in its order for reference, the Court has indicated on numerous occasions that the regulations adopted to implement the Treaty provisions on free movement of workers do not apply in cases where all the facts are confined to the territory of a single Member State or where there is no connection with any of the situations envisaged by Community law."
Mr. Fennelly cited a number of judgments of the court which, in his estimation, supported that point. It is striking to note that they included the case of Petit and also a number of other cases, equally making the point, additional to those already referred to in this judgment, and in the cases before us, and in his earlier opinion that I have ventured to cite. He continued:
"... the Court has stated in a number of those cases that this reasoning excludes from the benefit of the Regulation workers who have never exercised their right of free movement and who have always worked and resided in their own Member State, which is also the position of Mr. Kulzer."
He then went on to say:
"... the latter, apparently categorical, statements have all been made in circumstances where the family member who sought benefits or social advantages was a third-country national who had no material connection with any other Member State.
He then referred to an earlier case in the Court of Justice, Case 115/77 [1978] ECR 805, Laumann, cited by Mr. Fennelly from 909 of that report.
Before reverting to that case we should look at what was said by the Court of Justice in Case C-194/96. The relevant part is in paragraph 30 of the judgment, page 1932 of the report. The Court said:
"... according to the fifth recital in the preamble to Regulation 1408/71 in its original form, the provisions which the Regulation lays down for coordination of national social security legislation also apply to circumstances where members of the worker's family move within the Community.
It was therefore the movement of the child within the Community which was regarded by the court as relevant in that case.
To revert briefly to Mr. Fennelly's opinion he referred, as I have, to the case of Laumann in paragraph 32 of his opinion, at page 1908. He said this:
"The facts of the present case are not materially dissimilar to those of Laumann. That case concerned orphans' pensions, which, while received directly by the orphan himself, constitute, like other survivors' benefits, 'the projection in time of a prior occupation, pursuit of which ceased on the death of the worker'. The judgment of the Court indicates that, where he can satisfy the detailed provisions of Article 78 of the Regulation, a minor orphan resident in a Member State other than his own can claim an orphan's pension thereunder by virtue of a deceased parent's professional or trade activity pursued exclusively in his own Member State. By the same token, a living parent who, like Mr. Kulzer, works or has worked exclusively in his own Member State and who satisfies the detailed provisions of the Regulations governing family and dependent child benefits ... should be able to claim such benefits in respect of offspring who reside in another Member State. However, if the workers' sole connection with the situation envisaged by Community law is the residence of his children in another Member State, this fact cannot, in my view, constitute a sufficient basis for the application of the Regulation in respect of benefits other than family, dependent children and orphan benefits."
In Laumann the Court of Justice emphasised, as it did in Kulzer, the importance of the specific provision of the regulation extending its operation to survivors of workers. The Court of Justice said at paragraph 5 of its judgment in Laumann:
"As in the case of the earlier Regulation No. 3, the persons covered by Regulation No. 1408/71, as is indicated by its heading, include not only employed persons but also their families moving within the Community.
Thus pursuant to Article 2(1) of Regulation No. 1408/71 which defines the persons covered by the regulation the provisions of the latter shall apply to the survivors of workers who are or who have been subject to the legislation of one or more Member States.
The general terms in which those provisions are couched show that the application of the regulation is not limited to workers or their survivors who have had employment in several Member States or who are, or have been, employed in one State whilst residing or having resided in another.
Thus the regulation also applies when the residence in another Member State was that not of the worker himself but of a survivor of his."
Laumann is a case where a German child moved to Belgium with his mother on divorce and, as Mr. Fennelly said, the question was whether he could claim an orphan's pension from Germany when his father, who was still in Germany, died.
Laumann and Kulzer do not in my judgement assist Mr. Krasniqi. True it is that they show that the regulation will bite in certain circumstances when it is not the applicant for the social security benefit who moves; but that is fully explained in both cases by the specific terms of the regulation, that extend to survivors and offspring. In each case it is, in my judgement, quite apparent that all the courts who addressed the matter were well seised of the need for there to be a Community element, that is to say, if I can put it in crude terms, a "two-state" operation, before the regulation could have effect. I am bound to remark also that there would be no need for the specific provisions to which the court referred if the regulation applied to cases solely arising within a single Member State and with no suggestion of discrimination on grounds of nationality. I therefore cannot accept that the attempt to off-set what I regard as the general rule by reference to, in particular, the case of Kulzer can succeed.
Mr. Nicol, however, had another point, which certainly is apparent in his skeleton argument, but as the argument developed before us took on perhaps an even greater importance in his overall presentation of Mr. Krasniqi's case. This is what I will refer to, I hope not misleadingly, as the refugee argument. This point took on a greater importance before us because I understood Mr. Nicol in effect to accept, at least in the course of argument, that there did need to be a "Community element" in the case before Regulation 1408/71 applied. But he said that that Community element was, on the true construction of the Regulation, provided by the fact that Mr. Krasniqi had been a refugee from outside the Community. On this argument a refugee in the United Kingdom can complain of discrimination between himself and one or all United Kingdom residents or nationals in relation to social security benefits, even though one United Kingdom national cannot make that complaint in respect of benefits paid to another United Kingdom national.
Mr. Nicol said first that that was because, or at least partly because, Mr. Krasniqi was being discriminated against on grounds of nationality contrary to general Community principles and contrary to the intention of article 3 of Regulation 1408/71. That reference to discrimination on grounds of nationality in my judgement fails because the principle of non-discrimination in European Union terms, in so far as that principle is directly effective on the national level, relates to discrimination between the nationals of different Member States and not to discrimination against persons who are not nationals of any European Union State. Leaving that point aside, however, the result for which Mr. Nicol contended was on the wording of Regulation 1408/71 1971 achieved, as I understood it, in the following way.
Mr. Nicol drew attention to the remarks of Mr. Advocate-General Mancini in Case 238/83 [1984] ECR 2631 Meade (at tab 21 in our bundle). That case concerned a claim by a person who was a citizen of the United States of America and therefore not a national of any Member State. The Advocate-General in the course of looking at that claim said in paragraph 3 of his opinion, page 2641:
"It follows from the foregoing that Article 48 cannot be applied either to a national of a non-member country or to a student. However, the dispute ... deals with social security benefits. The Court must therefore examine Regulation No 1408/71...
That regulation was adopted for the purpose of implementing Article 51 of the EEC Treaty and it defines the persons entitled to Community benefits in a way which is wider than the definition used in regard to freedom of movement for workers. The regulation applies, in fact, to all those who are insured (compulsorily, voluntarily or on an optional continued basis) in a Member State provided that they are covered by a social security scheme for employed or self-employed persons. The persons concerned must also be nationals of one of the Member States (to which are assimilated refugees and stateless persons residing in a Member State) members of their families or their survivors (Article 20). Once again, therefore, nationals of non member countries and students as such are excluded from the scope of the Community rules, unless, of course, the national rules assimilate students to worker by granting them benefits of the kind provided for in Regulation No 1408/71."
This theme was taken up most clearly in paragraph 15 of Mr. Nicol's skeleton. In argument he very fairly agreed that the remarks of Mr. Advocate-General Mancini were neutral in assessing the point before this court. But he said this in his skeleton, and I cite this because it is a convenient and clear summary of the argument which was expanded on before us:
"In the case of refugees and stateless persons, their very presence in a member state as a refugee or stateless person carries an external element. It is not necessary for refugees or stateless persons to have moved within the Community in order for the Regulation to apply to them. There is a Community element in respect of refugees and stateless persons, even when they have only ever been in one member state, because for the purposes of the Regulation they are assimilated to nationals of another member state."
The burden is therefore that the refugee who arrives in country A is assimilated not to the nationals of country A but to the nationals of "another Member State". I have to say that I regard that argument as simply misconceived. The external element in the case of a refugee such as Mr. Krasniqi is external to the Community, not external to the United Kingdom in Community terms. Plainly, looking at the matter in terms of assimilation, the refugee is assimilated for the purposes of this regulation to the national state in which he is recognised as a refugee. The rights under the regulation do not bite until he or his connections move to another Member State, or otherwise act in a way that introduces a Community dimension into the case. That is plainly what Mr. Advocate-General Mancini had in mind when he explained the status of refugees within this regulation. As Stuart-Smith LJ observed in argument, there is absolutely no reason at all in terms of construction why Mr. Krasniqi should be assimilated to the nationals of another Member State, for instance France or Holland, when he has never been there and has no connection at all with those countries; rather than with the nationals of the United Kingdom where he chose to seek refuge on leaving Kosovo, which is the only Member State with which he has any connection at all and which is the state in which he is working or wishing to work and, when he is working, is paying income tax and social security contributions.
Further, quite apart from its inherent lack of likelihood, there are practical difficulties about the argument. Mr. Nicol said that the refugee should be assimilated to a national of "another" Member State: apparently it matters not which. But the scheme of Regulation 1408/71, precisely because it envisages the conjunction of the social security systems of two or more Member States and the practical working out of the consequences of that conjunction, cannot be operated in a vacuum. It requires identification of the Member States whose systems are to be coordinated. That cannot be done on Mr. Krasniqi's argument, which cannot of necessity identify any Member State involved other than United Kingdom.
Mr. Nicol further argued that there were reasons, other than ones merely of construction, for thinking that Regulation 1408/71 was intended to extend to refugees in the way for which Mr. Krasniqi contended. I am not persuaded by those arguments, as I shall demonstrate in other sections of this judgment.
The upshot of these consideration is that there is no Community element in Mr. Krasniqi's case, which therefore falls at the first hurdle.
I do not take time in setting out the recitals to that regulation. On any fair reading they are all about the coordination of social security benefits in the interests of freedom of movement of workers within the Community. The specific vires is, firstly, Article 51 of the European Union Treaty. Title III of Part 2 of the European Union Treaty is entitled "Free movement of persons, services and capital". Chapter 2 within that title is about workers and in turn Article 51 falls within that chapter. Article 51 says in terms that it is about the free movement of workers, and passed in order to secure certain rights for migrant workers and their dependants. It is quite clear that this is and must be directed at "movement" in European Union terms, that is to say movement between two or more Member States. Mr. Nicol said that Article 51 had different aims from Article 48 which is why cases on Article 48 are not directly helpful to us. The wording of Article 51 plainly does not bear that out. The whole emphasis of the Treaty is that Articles 48 to 51 inclusive are, as they are set out in the Treaty, a single set of provisions dealing with movement of workers.
Mr. Nicol sought to rely on the opinion of Mr. Advocate-General Saggio in Case C90/97 Swaddling, not yet reported, though we were provided with an account of the Advocate-General's observations. This case has not yet been considered by the Court and therefore I do not think it necessary to set out what it was all about. But the Advocate-General has some illuminating observations at paragraph 25 of his opinion. He said this:
"More generally, the lack of harmonisation in the field of social security explains why each Member State remains competent to determine the conditions governing the right or the obligation to join a social security scheme, provided there is no discrimination on grounds of nationality. However, the exercise of national competence cannot go so far as to undermine the fundamental objective pursued by Article 51 of the Treaty, which is to prevent migrant workers from losing social security rights guaranteed under the law of a Member State, as a result of exercising their right to freedom of movement. That would run counter to the aim of Article 48 of the Treaty and would accordingly constitute a breach of a basic principle of Community law."
That is, in my judgement, a revealing observation by the Advocate-General as to the interdependence of Articles 48 and 51 and as to the objective and reason for which Article 51 was included within the Treaty.
In support of that observation the Advocate-General referred, in footnote 31 at the end of that paragraph, to Case 284/84 [1986] ECR 685 Spruyt at paragraph 19. There the Court said the same thing as the Advocate-General, at paragraph 19 of that report:
"Article 51 requires the Council to adopt such measures in the field of social security as are necessary to provide freedom of movement for workers by securing, inter alia, payment of benefits for persons resident in the territories of the Member States. The aim of Articles 48 to 51 would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose the advantages in the field of social security guaranteed to them by the laws of a single Member State."
There again the Court of Justice makes it quite clear that Articles 48-51 are to be read as a whole - I would be tempted to say as a seamless robe - promoting the same aim, which is all to do with movement between Member States. That is reinforced by the remedies or specific provisions of Article 51. Article 51(a) refers to aggregation of periods of benefit under the laws of relevant countries. That applies in terms to, and only to, cases involving a number of Member States of the European Union. The payment of benefits referred to in Article 51(b) is payment of benefits to a person from one country of the European Union residing in another. There could be no justification for any other interpretation, based as this article is on the concept of free movement within the European Union.
I venture also to refer, though it was not cited to us, to an observation of Advocate-General Sir Jean-Pierre Warner with regard to Article 51, which is a clear statement, if I may respectfully say so, wholly in line with the authority to which I have just referred. He said this in his opinion in Case 191/73 [1974] ECR 571 at 574, Niemann. Having referred to a series of authorities with regard to Article 51 the learned Advocate-General said this:
"Article 51 has as its purpose to eliminate deterrents to the free movement of worker within the Community; its rationale is that there would be such a deterrent if a person who worked successively or alternately in different Member States were thereby to be deprived of social security benefits that he would have secured had he always worked in the same Member State; hence the concept of 'aggregation' of qualifying periods which is enshrined in Article 51 and was picked up by Article 27 of Regulation No 3."
In my judgement, therefore, the authority that has been put before us, very clearly summarised in the words of Advocate-General Warner which I have referred to, clearly shows that any interpretation of Regulation 1408/71 which goes beyond its application in a case which involves or impinges on movement of workers between Member States must be ultra vires and therefore must be wrong. That is reinforced by the limitation of rules of free movement such as are implemented under the vires of Article 51 to cases with a Community element. That was demonstrated by the case of Uecker, to which it is not necessary to revert.
Mr. Nicol, however, pointed out that the vires of our regulation are also stated to reside in Article 235 of the Treaty which reads as follows:
"If action by the Community should prove necessary to attain in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal of the Commission and after consulting the Assembly, take the appropriate measures."
From that statement Mr. Nicol said that it could be assumed, or at least it was possible that it could be assumed, that the reference to Article 235 imported into our Regulation's objectives (including the extension to refugees) of social cohesion and matters of that sort that are now set out as part of the aims of the European Community. It is however fair to say that any such aim that could potentially play such a role and could potentially give a reason why refugees are dealt with in this regulation in the way that Mr. Krasniqi's argument says that they are was introduced into the Treaty of Rome by the Treaty of Union. It is very difficult to think that the latter was directed at the case of refugees; and in any event it was introduced as a specific object of the Community by the Treaty of Union many years after Regulation 1408/71 and its predecessors were formulated. There is also the difficulty to which Mr. Advocate-General Fennelly drew attention in the case of Kulzer at paragraphs 36 of his opinion, that Article 235 was only added to the vires of this regulation when the regulation was extended to cover cases of self-employed persons. Without presuming to decide that point - which, it is fair to say, as Mr. Nicol pointed out, was not relied on by Mr. Fennelly as a matter of decision and was not referred to by the Court - I am bound to say that my understanding also would be that the need to add Article 235, which is essentially a clearing up or tidying up provision (if I can say that without disrespect) to the vires was to enable self-employed persons to be added to this regulation: a change that in the general structure of Community law represented no stark or surprising extension of the terms of the regulation.
Be that as it may, Mr. Krasniqi argues (on the basis of Articles 2 and 7a of the Treaty on European Union as they now are) that the Treaty:
"... provides for the adoption of measures with the aim of progressively establishing the internal market, which is to comprise an area without internal frontiers. Common action in relation to the external frontiers of States has been seen as a precondition for the removal of internal frontier controls. Common provision for the enjoyment of social security rights for third country nationals can be seen as a feature of common action in relation to external frontiers."
Even if, however, despite the difficulties that I have already indicated, it is appropriate to make reference here to common policy in respect of external bodies, it is an extremely large leap to suggest that it flows from that that there have been since 1971, or indeed before that since the formulation of Regulation 3, common obligations with regard to the internal treatment of refugees. I have to say with respect that I do not see how, even if common action by the Community in regard to external frontiers can now be said to be a Community objective, such an objective can depend on or entail common provision with regard to social security benefits within Member States; bearing in mind also, of course, that the regulation itself does not impose common provision, but only the coordination of the different provisions made under their independent powers by independent Member States.
I put these considerable difficulties on one side, however, because in Community terms it is, I have to say, quite inconceivable, if Regulation 1408/71 were intended not only to promote free movement but also to promote the interests of non-moving refugees, that that would not have been specifically spelt out in the recitals. There is not, of course, a word about it. Mr. Nicol said that that was a curiosity. I fear that I would go somewhat further and say that it is not a curiosity but an ample demonstration that this regulation was not intended to extend to refugees in the way for which Mr. Nicol argued. That consideration is also clearly to the point.
The next and allied argument that was adduced in connection with the vires, however, was that one of the interests of the Community or at least of the Member States was to promote their obligations under the Geneva Convention. I do not take time in setting out Convention provisions. It may well be the case that reference was included to refugees in Article 1408/71 because of the sensitivity of Member States to their Geneva Convention obligations. But that is no reason at all for thinking that the Member States would have taken the further step alleged by Mr. Krasniqi and used Community legislation to impose on themselves obligations in regard to their internal dealings with non-Community nationals: which is what this argument involves.
We were shown a translation of the Council Declaration of 25 March 1964 with regard to the Community's posture in regard to refugees. No English text of this exists. It is summarised, and as far as I can see accurately summarised, in paragraph 1507 of volume 52 of Halsbury's laws. In so far as anything can be drawn from that it seems to indicate a posture of considerable reserve on the part of the Member States and of the Community institutions about the Community becoming involved, if I can put it this way, in obligations as to the internal treatment of refugees.
Mr. Nicol said however that, looking at the whole matter, it could be arguable that those who formulated Regulation 1408/71 had in mind their obligations under the Geneva Convention. In my judgement, quite apart from there being no trace whatsoever of that in the regulation's recitals (and bearing in mind the Community practice of referring in recitals to every document or provision that has been taken into account) I have to say it is really wholly implausible that the Member States would have in mind legislation of the type Mr. Krasniqi argues for at Community level; or, if that is too large a claim, that they would have in mind using the insertion of one word in Regulation 1408/71 to achieve the very large purpose that Mr. Krasniqi says they achieved in that regulation. In my judgement, there is no power in the vires of Regulation 1408/71 for Mr. Krasniqi's construction. That is also fatal to his argument.
I turn briefly to the third point, the specific provisions of Regulation 1408/71. Those addressed this matter, so far as they do that at all, in Article 10a of the regulation headed "Special non-contributory benefits". I do not take time reading Article 10a. The first three paragraphs of it are, in my judgement, illuminating. They seem all to deal with situations that involved two or more Member States and which require the coordination of benefits between those two or more Member States. It is implausible to think that the draftsmen of that provision also had in mind a case such as that argued by Mr. Krasniqi, where the refugee claims the same benefit as other residents in the same Member State. If that case were covered by the regulation, bearing in mind the detail with which each case and type of benefit is considered in this regulation, one would expect specific directions as to how it operates. We were not shown the full text of the regulation. I do not complain about that in any way but if it is scrutinised one sees page after page of detailed guidance as to how Member States should inform themselves. There seem to be no specific directions that address Mr. Krasniqi's case.
I come at last to the case that decides this appeal, Case 153/91 [1992] ECR 1 4973, Petit. This is a case of slightly odd facts, but that had the beneficial effect of putting the point in a very stark form. Putting it very bluntly, Mr. Petit, a Belgian national, was refused a pension in Belgium because, for reasons that will no doubt be apparent, he insisted on formulating his application in French, when the Belgian legislation required him to do so in Dutch. The question that was asked by the Brussels court was this (page 14993 of the judgment):
"Must Article 2 of Council Regulation No. 1408/71 ... on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community be interpreted as meaning that that regulation, and in particular, if not solely, Article 84(4) thereof, applies to workers who have been subject to the legislation of only one Member State, namely that of which they hold the nationality and in whose territory they have lived and worked?"
At paragraph 8 of its judgment the Court said
"As the Court has consistently held, the provisions of the Treaty on freedom of movement and the regulations implementing those provisions cannot be applied to activities which are confined in all respects within a single Member State."
The reply to the Brussels court's question, and therefore the ruling of the court, was that Articles 48(1) and 51 of the EEC Treaty and Regulation 1408/71, and in particular Article 3 thereof, do not apply to situations which are confined in all respects within a single Member State. That authority not only reinforces the limitation of this regulation to situations that are not confined within a single Member State; it also, if I may say so, valuably reinforces other authority that I have referred to dealing with the commonality of implication and effect between Articles 48 and 51.
This case is fatal to this appeal. Mr. Nicol said not so, because it did not deal with the specific question of the position of refugees. But, as I have sought to demonstrate, it is, in my judgment, impossible to argue that refugees are addressed in this regulation in the terms that Mr. Krasniqi argues that they are. They are addressed only in the very limited way referred to earlier in this judgment.
Not only is this case fatal to the appeal, but it is also fatal to any suggestion that a question should be referred to the European Court of Justice. To refer any question to the European Court of Justice would, in my judgement, be inviting that Court simply to repeat the ruling that it has given in Case 153/91, Petit, in 1993. That would be an unjustified exercise because there is no question that it is necessary to know the answer before this court can determine this appeal.
Further questions were ventilated before us, and interestingly ventilated both in Mr. Nicol's argument and in the two skeleton arguments that we had, as to whether, on the assumption that Mr. Nicol was right on his first point, Mr. Krasniqi in fact fulfilled the further requirements of the regulation in terms of whether he was a refugee at the time to which the regulation was addressed and whether or not he was lawfully resident in this country. We have not found it necessary to determine those matters because the presupposition upon which determination of them would be required, that is to say that Mr. Nicol was right on his first point, has for the reasons indicated not been fulfilled, and we did not hear argument from Mr. Paines upon them. I do not intend to say any more about them save this, that there would of course be a certain degree of artificiality in seeking to determine those questions about construction of this regulation, against the background of an assumption about the application of the regulation which, in my judgement, was unfounded. I say no more about that because the points do not arise.
For the reasons that I have indicated I would not refer any question to the European Court of Justice. I would dismiss this appeal.
LORD JUSTICE THORPE: I agree.
LORD JUSTICE STUART-SMITH:I also agree.
Order: Appeal dismissed; no order as to costs; legal aid taxation of appellant's costs; application for leave to appeal to the House of Lords refused.