UK Social Security and Child Support Commissioners' Decisions

[2000] UKSSCSC CFC_2613_1997 (22 May 2000)

R(FC) 1/01


Mr. M. Rowland CFC/2613/1997

22.5.00

Presence condition - Turkish asylum seeker - whether "a national of a State with which the Community has established an Agreement under article 238 of the Treaty establishing the European Community providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families"

The claimant and her husband were Turkish nationals and, at all material times, were seeking asylum in the United Kingdom. An adjudication officer refused her claim for family credit on the ground that, by virtue of regulation 3(1)(aa) of the Family Credit (General) Regulations 1987, she was not to be treated as being in Great Britain because her right to reside or remain in Great Britain was subject to a limitation or condition. The claimant's appeal was dismissed by a tribunal and she appealed to the Commissioner. The Board of Inland Revenue, as successor to the adjudication officer, conceded that an association Agreement between the European Economic Community and Turkey had been concluded and that the Association Council established under the Agreement had adopted Decision No. 3/80 on the application of the social security schemes of Member States to Turkish workers and their families, which provided for equal treatment. The Board also conceded that the claimant's right to reside or remain in Great Britain was therefore not to be treated as subject to a limitation or condition because she fell within regulation 3(1A)(d), as "a national of a State with which the Community has established an Agreement under article 238 of the Treaty establishing the European Community providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families". The Board further conceded that the claimant could, in any event, have relied on the direct effect of Decision 3/80.

Held, accepting the concessions and allowing the appeal, that:

an association Agreement was to be treated, for the purposes of regulation 3(1A)(d), as providing for equal treatment in the social security field, where such provision was made by a Decision of an Association Council that was constituted under the Agreement and required by the Agreement to adopt social security measures;

Decision 3/80 of the Association Council had direct effect in respect of claimants and benefits within its scope.

The Commissioner held that the claimant was to be treated as having been in Great Britain at the date of claim.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal, brought by the claimant with the leave of a Commissioner, against a decision of the Edmonton social security appeal tribunal dated 25 November 1996, whereby they dismissed an appeal from a decision of an adjudication officer to the effect that she was not entitled to family credit on a claim made on 18 June 1996 because her right to reside in Great Britain was subject to a limitation or condition. In view of the agreement there now is between the parties, I revoke my direction that there be an oral hearing of this appeal.
2. The claimant and her husband have Turkish nationality and, at the date of claim, were seeking asylum in the United Kingdom. They had one child and the claimant's husband was in remunerative employment. He had been awarded family credit from 12 December 1995 to 11 June 1996. She made a claim on 18 June 1996. No decision on the asylum applications had then been made. It is the claim of 18 June 1996 which is the subject of this appeal.
3. By virtue of section 128(1) of the Social Security Contributions and Benefits Act 1992, it was a condition of entitlement to family credit that the claimant be present in Great Britain. By section 137(2)(a), regulations might make provision as to circumstances in which a person was to be treated as being or not being in Great Britain. With effect from 5 February 1996, regulation 3(1) of the Family Credit (General) Regulations 1987 was amended by regulation 6 of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996, subject to transitional protection which preserved the present claimant's husband's position during the subsistence of his current award. The material amendment made was the insertion of regulation 3(1)(aa) into the 1987 Regulations, making it a condition of a claimant being treated as resident in Great Britain that, on the date of claim, "his right to reside or remain in Great Britain is not subject to any limitation or condition". That was made subject to a new paragraph (1A) which provided, so far as is material:

"(1A) For the purposes of paragraph (1)(aa), a person's right to reside or remain in Great Britain is not to be treated as if it were subject to a limitation or condition if-

(a) ... ;

(b) ... ;

(c) ... ; or

(d) he is a person who is-

(i) lawfully working in Great Britain and is a national of a State with which the Community has established an Agreement under article 238 of the Treaty establishing the European Community providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families, or

(ii) a member of the family of, and living with, such a person."

4. The Board of Inland Revenue, as successor to the adjudication officer, now concedes that the claimant was a person falling within regulation 3(1A)(d) and that the tribunal erred in law in upholding the adjudication officer's decision that she was caught by regulation 3(1)(aa). An Association Agreement between the European Economic Community and Turkey was concluded in 1963 (see Council Decision 64/732/EEC (OJ 1977 L 361, p. 29) and an additional Protocol was concluded in 1972 (see Council Regulation (EEC) No. 2760/72 (OJ 1972 L 361, p. 61) and, by virtue of Article 62, forms an integral part of the Agreement. By Article 39 of the Protocol, the Association Council established by Article 6 of the Agreement was required to adopt social security measures for workers of Turkish nationality moving within the Community and for their families residing in the Community and it was on that basis that the Association Council adopted Decision No. 3/80 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families (OJ 1983 C 110, p. 60). Article 2 of Decision 3/80 provides:


 


"This Decision shall apply:

( to workers who are, or have been, subject to the legislation of one or more Member States and who are Turkish nationals,

( to the members of the families of those workers, resident in the territory of one of the Member States,

( to the survivors of these workers."

Article 3(1) provides:

"Subject to the special provisions of this Decision, persons resident in the territory of one of the Member States to whom this Decision 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."

It is a question of domestic law whether there is "an Agreement under Article 238 of the Treaty establishing the European Community providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families" when the Agreement itself makes no such provision but a Decision of an Association Council, constituted under the Agreement and required by the Agreement to adopt social security measures, does. The answer seems to me to be plain. Just as a reference to provision made by an Act of Parliament is generally construed so as to include provision made by statutory instrument under powers conferred by that Act, the provision for equal treatment made by the Decision of the Association Council must, in my view, be regarded as made under the Agreement so that, as the Board of Inland Revenue concedes, regulation 3(1A)(d) of the 1987 Regulations applies in this case.

5. The Board also concedes that the claimant is within the scope of Decision 3/80 and, in the light of the decision of the European Court of Justice in Hughes v. Chief Adjudication Officer (C-78/91) [1992] ECR 1-4839, family credit is a family benefit within the scope of Decision 3/80 so that, having regard to the decision of the European Court of Justice in Surul v. Bundesanstalt fur Arbeit (C-262/96, 4 May 1999), the claimant is entitled to rely on the direct effect of Decision 3/80 and could succeed in showing entitlement to family credit even if regulation 3(1A)(d) of the 1987 Regulations had not been made. I accept that concession as well.
6. It is therefore unnecessary for me to consider the other arguments advanced during the course of these protracted proceedings.
7. I allow the claimant's appeal. I set aside the decision of the Edmonton social security appeal tribunal dated 25 November 1996 and I give the decision the tribunal should have given. The appeal from the adjudication officer is allowed because, at the date of claim, the claimant satisfied the conditions of regulation 3 of the Family Credit (General) Regulations 1987 and, in particular, was a person whose right to reside or remain in Great Britain was not subject to any limitation or condition. Accordingly, the claimant is to be treated as having been in Great Britain on 18 June 1996. I leave to an officer of the Board of Inland Revenue the determination of all other questions arising on the claim made on that date.

Date: 22 May 2000 (signed) Mr. M. Rowland

Commissioner