UK Social Security and Child Support Commissioners' Decisions

[2001] UKSSCSC RJSA_7_2002 (26 September 2001)

 
R(JSA)7/02


Mr. J. Mesher CJSA/4705/1999

26.9.01

Applicable amount – Turkish national who had not claimed asylum on arrival – whether a person from abroad – application of European Convention on Social and Medical Assistance

The claimant was a Turkish national who arrived in the UK on 26.4.1992 and was admitted for six months subject to the condition that he did not take employment. He claimed asylum on 4.11.1992 by letter dated 28.10.1992 and was granted exceptional indefinite leave to remain on 2 July 1999. On 13.5.1998 he claimed income-based JSA. His claim was disallowed on the ground that he was a person from abroad to whom regulation 147(3) (urgent cases) of the Jobseeker's Allowance Regulations 1996 ("the JSA Regulations") did not apply. The adjudication officer submitted to the tribunal that the claimant fell within regulation 85(4)(j) of the JSA Regulations because he had an outstanding claim for asylum and was not within regulation 147(3) because he had not claimed asylum on arrival. The claimant opted for an oral hearing. The tribunal dismissed the appeal and the claimant appealed to the Commissioner on the ground that he had been given insufficient notice of the hearing.

Held, allowing the appeal, that:

the claimant had not waived the right to receive the seven days period of notice required by regulation 4(2) of the Social Security (Adjudication) Regulations 1995 (S.I. 1995 No.1801);

applying CJSA/7232/1999 the claimant could not be entitled to JSA under the urgent cases rules in regulation 147 because he had not claimed asylum on arrival and so could not fall within regulation 147(3);

for regulation 85(4)(j) to apply to the claimant, it had to be shown that at the time he claimed asylum, he fell within one or more of subparagraphs (a) to (i) of that paragraph. The claimant's application for asylum dated 28 October 1992 did not contain an application to extend or vary his six months' limited leave. Turkey was a signatory to the European Convention on Social and Medical Assistance ("ECSMA"). Following the expiry of the six months limited leave granted on entry the claimant remained without further leave so that he fell within subparagraph (b). Had it been the case that the claimant had applied for a variation of his limited leave during the period of leave, he would have fallen within subparagraph (a) because the exclusion of nationals of ECSMA signatory states from that subparagraph did not apply where the application for variation of leave remained outstanding. Even if the claim for asylum were to be treated as an implied application for variation of limited leave, the claimant would nevertheless fall within subparagraph (b) because by the date of his claim for asylum his limited leave had expired. Thus from the date of his claim for asylum he fell within subparagraph (j);

Decision No.3/80 of the Association Council under the Association Agreement between the EEC and Turkey did not produce a different result. Although Article 3(1) of that decision provided for persons resident in the territory of one of the member states to enjoy the same benefits under the legislation of any member states as the nationals of that state and although income-based JSA was an unemployment benefit within Article 4 of that decision, residence for the purpose of Article 3(1) had to be authorised and lawful, which the claimant's was not on 13.5.1998. On the expiry of his six months' limited leave he was not authorised to reside in the UK;

there was nothing in ECSMA on which the claimant could rely. Even if JSA had been added to the benefits covered in Annex 1, which it had not, ECSMA created only international obligations not obligations and rights on which an individual could rely directly against a state in which he was lawfully present.

The Commissioner distinguished R(SB)24/84. He considered Yildiz v Secretary of State for Social Security [2001] EWCA Civ 309 (1 March 2001) [now reported as R(IS)9/01], R(SB)25/85, Surul v Bundesanstalt fur Arbeit (Case C-262/96) [1999] ECR I-2685, Tetik v Land Berlin (Case C-171/95) [1997] ECR I-329, R v Secretary of State for the Home Department, ex parte Savas (Case C-37/98) [2000] All ER (EC) 627, Shah v Barnet London Borough Council [1983] 2 AC 309, Kaya v London Borough of Haringey and another [2001] EWCA Civ 677 (1 May 2001) and R(FC)1/01.

The Commissioner substituted his own decision that the claimant was not entitled to income-based jobseeker's allowance from 13.5.1998 because he was a person from abroad with an applicable amount of nil.

[Note: This decision relates to regulation 147 of the JSA Regulations prior to its amendment from 3.4.2000 by the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 (S.I. 2000 No.636)]

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The decision of the Whittington House (Walthamstow) social security appeal tribunal dated 12 August 1998 is erroneous in point of law, for the reasons given below, and I set it aside. But that is of no advantage to the claimant. I substitute the decision which should have been given on the claimant's appeal against the adjudication officer's decision issued on 20 May 1998 (Social Security Act 1998, section 14(8)(a)(i)). The decision is that the claimant was not entitled to income-based jobseeker's allowance from and including 13 May 1998 because he is a person from abroad with an applicable amount of nil (Jobseeker's Allowance Regulations 1996, regulation 85 and Schedule 5) who does not come within regulation 147(2)(a) and (3) on urgent cases.
2. The claimant is a Turkish national. He arrived in the United Kingdom on 26 April 1992 and claimed asylum on 4 November 1992. The evidence of the copy of the letter dated 28 October 1992 from his solicitors, and of his passport produced to me at the oral hearing, is that he was admitted for six months on 26 April 1992 subject to the condition that he did not take employment. The letter of 28 October 1992 was the application for asylum and does not contain an application to extend or vary the claimant's leave. He was granted indefinite leave to remain in the United Kingdom, exceptionally outside the Immigration Rules, on 2 July 1999. I have found a copy of a letter of that date from the Immigration and Nationality Directorate of the Home Office in the Appeal Service file.
3. The claimant was awarded income support at the urgent cases rate from 30 January 1996. He satisfied the relevant regulations as they were before 5 February 1996, but not as they were amended from that date. From that date, only those who claimed asylum "on arrival" were eligible for the urgent cases rate of income support. However, his award continued in force past 5 February 1996, under the protection given by regulation 12(1) of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 ("the 1996 Regulations") to persons in the claimant's position who were entitled to income support at the urgent cases rate immediately before 5 February 1996. He ceased to be entitled to income support on 11 June 1997, when he started work. The company employing him later went into liquidation and he made a claim for income support on 27 April 1998. On 9 May 1998 this claim was disallowed on the basis that he had lost his transitional protection on the break in entitlement and was a person from abroad who did not satisfy the conditions for entitlement to income support at the urgent cases rate. On 13 May 1998 he made a claim for income-based jobseeker's allowance ("JSA"). This claim was disallowed by the adjudication officer on 20 May 1998 on the ground that the claimant was a person from abroad to whom regulation 147(3) of the Jobseeker's Allowance Regulations 1996 ("the JSA Regulations") on urgent cases did not apply.
4. The claimant appealed against that adjudication officer's decision, identifying the benefit claimed as JSA. The adjudication officer's written submission to the appeal tribunal was that the claimant was a person from abroad within sub-paragraph (j) of the definition in regulation 85(4) because he had an outstanding claim for asylum and was not within regulation 147(3) because he had not claimed asylum on arrival in the United Kingdom. The claimant, having opted for an oral hearing, attended the hearing on 12 August 1998 with a representative and interpreter, Mr. Istek. On the record of proceedings, no date is entered in the box for the date on which the claimant was notified of the date of the hearing. The claimant and Mr. Istek have said that only two days' notice was given and there is no evidence to the contrary or of the claimant's consent to the short notice.
5. The appeal tribunal dismissed the claimant's appeal and confirmed the adjudication officer's decision. The claimant now appeals against that decision with the leave of a Commissioner. In the submission dated 18 April 2000 on behalf of the Secretary of State the appeal was supported on the ground that less than the seven days' notice of the hearing required by regulation 4(2) of the Social Security (Adjudication) Regulations 1995 had been given and there had been no waiver of the right to receive that notice. I agree that that was an error of law which requires the setting aside of the appeal tribunal's decision. The question remains of what decision should be given on the claimant's appeal against the adjudication officer's decision of 20 May 1998.
6. Proceedings in the appeal were deferred pending the outcome of the decision of the Court of Appeal in Yildiz v Secretary of State for Social Security, which was handed down on 1 March 2001 [[2001] EWCA Civ 309, now reported as R(IS) 9/01]. I directed an oral hearing jointly with two other cases concerning Turkish nationals who were asylum-seekers. The claimant attended and was represented by Mr. Istek. Mr. Istek had wanted to arrange representation by Ms. White of the National Association of Citizens Advice Bureaux Welfare Rights Unit, who was representing the claimants in the other cases. Arrangements could not be made in time, but Ms. White was able to make some comments on the present case. The Secretary of State was represented by Mr. Maurici of counsel, accompanied by Mr. Chang of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to all present for their assistance.
7. There were a number of complicated issues discussed at the oral hearing, but on the clear view which I have formed of the proper legal approach I do not need to deal with all of them.
8. First I can dispose of the argument put forward in the written submissions dated 10 April 2001 and 21 August 2001 on behalf of the Secretary of State that the claimant was entitled to rely on his transitional protection in relation to income support under regulation 12(1) of the 1996 Regulations, even though the claim and decision under appeal related to JSA. Mr. Maurici resiled from that argument at the oral hearing and submitted that my decision rejecting that argument in appeal CJSA/7232/1999, which was circulated to the parties in advance of the oral hearing, was right. I granted Ms. White (who had also represented the claimant in CJSA/7232/1999) 14 days in which to make any submission that my decision in that case was wrong or that she was proposing to apply for leave to appeal against it. She replied in a letter dated 18 September 2001 that she did not propose to appeal against that decision.
9. For the reasons given in CJSA/7232/1999, which I shall not repeat here, regulation 12 of the 1996 Regulations cannot affect the operation of regulation 147 of the JSA Regulations, which did not come into force until 7 October 1996. The terms of that regulation must be applied to all claims for JSA, regardless of what the result might be on a claim for income support in the light of Yildiz. For the purposes of regulation 147 a person is an asylum-seeker only if he submitted the claim for asylum on arrival in the United Kingdom. The claimant did not do that. Therefore, if he was a "person from abroad" on 13 May 1998, he could not be entitled under the urgent cases rules in regulation 147 because he was not within regulation 147(3).
10. It may well be that, in the light of what was said in the two submissions of 10 April 2001 and 21 August 2001, the grounds of the disallowance of income support from 27 April 1998 in the light of Yildiz and the advice given to the claimant about which benefit he should claim, an application for an ex gratia payment might bear fruit. But that is something to be pursued by Ms. White on the claimant's behalf.
11. The next question is whether the claimant was a "person from abroad" on 13 May 1998. Such a person who is not covered by regulation 147 has an applicable amount of nil (paragraph 14 of Schedule 5 to the JSA Regulations) and accordingly cannot be entitled to income-based JSA. I need to set out the full relevant definition, as in force on 13 May 1998, from regulation 85(4):

"`person from abroad' means a person, who--

(a) has a limited leave as defined in section 33(1) of the Immigration Act 1971 (hereinafter referred to as `the 1971 Act') to enter or remain in the United Kingdom which was given in accordance with any provision of the immigration rules (as defined in that section) which refers to there being, or there needing to be, no recourse to public funds or to there being no charge on public funds during that limited leave; but this sub-paragraph shall not apply to a person who is a national of a Member State, a state which is a signatory to the European Convention on Social and Medical Assistance (done in Paris on 11th December 1953) or a state which is a signatory to the Council of Europe Social Charter (signed in Turin on 18th October 1961), unless, in the case of a national of a state which is a signatory of that European Convention, he has made an application for the conditions of his leave to remain in the United Kingdom to be varied, and that application has not yet been determined or an appeal is pending under Part II of the 1971 Act (appeals); or

(b) having a limited leave (as defined in section 33(1) of the 1971 Act) to enter or remain in the United Kingdom, has remained without further leave under that Act beyond the time limited by the leave; or

(c) is the subject of a deportation order being an order under section 5(1) of the 1971 Act (deportation) requiring him to leave and prohibiting him from entering the United Kingdom; or

(d) is adjudged by the immigration authorities to be an illegal entrant (as defined in section 33(1) of the 1971 Act) who has not subsequently been given leave under that Act to enter or remain in the United Kingdom; or

(e) has been allowed temporary admission to the United Kingdom by virtue of paragraph 21 of Schedule 2 to the 1971 Act; or

(f) has been allowed temporary admission to the United Kingdom by the Secretary of State outside any provision of the 1971 Act; or

(g) has not had his immigration status determined by the Secretary of State; or

(h) is a national of a Member State and is required by the Secretary of State to leave the United Kingdom; or

(i) has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking given by another person or persons in writing in pursuance of immigration rules within the meaning of the Immigration Act 1971, to be responsible for his maintenance and accommodation; and he has not been resident in the United Kingdom for a period of at least 5 years beginning with the date of entry or the date on which the undertaking was given in respect of him, whichever date is the later; or

(j) while he is a person to whom any of the definitions in sub-paragraphs (a) to (i) applies in his case, submits a claim to the Secretary of State, which is not finally determined, for asylum under the Convention;"

Turkey is a signatory to the Convention ("ECSMA").

12. It is not enough simply to point to sub-paragraph (j) of that definition and say that the claimant had claimed asylum and the claim was still awaiting determination, as the adjudication officer did in the submission to the appeal tribunal. For that sub-paragraph to apply, one or more of sub-paragraphs (a) to (i) had to apply to the person at the date when the claim for asylum was made, in the present case 4 November 1992. Now, during the six months following the granting of leave to enter on 26 April 1992 none of those sub-paragraphs would seem to have applied. The claimant had limited leave as defined in section 33(1) of the Immigration Act 1971, ie leave "limited as to duration". The provision of the immigration rules dealing with the conditions for granting leave to enter as a visitor (paragraph 41) refers to a requirement that the person will maintain himself without recourse to public funds. So far the claimant would seem to fall within sub-paragraph (a), but he was taken outside that sub-paragraph because of his Turkish nationality, Turkey being an ECSMA signatory.
13. But where did he fall once the six months leave expired on 26 October 1992? In my judgment, sub-paragraph (b) applied to him. He had had limited leave and he remained beyond the six month limit without further leave. In sub-paragraph (b) there is no exception for nationals of ECSMA signatory states and no limitation to persons who were previously within sub-paragraph (a). If I am wrong above in finding that there was no earlier application for variation of his limited leave during the period of leave (so that his leave could continue under the Immigration (Variation of Leave) Order 1976), then the claimant would fall within sub-paragraph (a) as the exclusion of nationals of ECSMA signatory states does not apply where an application for variation has been made and is outstanding. If the claim for asylum were to be treated as an implied application for variation of limited leave, he would nevertheless have fallen within sub-paragraph (b) because by that date his limited leave had expired. Thus on any alternative one of sub-paragraphs (a) to (i) applied to him at the moment when he made his claim for asylum and from that date onwards he came within sub-paragraph (j). That status had not altered by 13 May 1998 when the claim for JSA was made, so that the claimant as "a person from abroad" was not entitled to JSA under the JSA Regulations. I do not then need to consider the various other sub-paragraphs of the definition which were debated at the oral hearing.
14. Since the oral hearing I have had drawn to my attention the decision of the Tribunal of Commissioners in R(SB) 24/84. There the claimant's limited leave under section 3 of the Immigration Act 1971 had expired when he made a claim for asylum. The Tribunal held that the claimant had been granted further leave, outside the immigration rules and on a extra-statutory basis, because he had the permission of the Home Office to remain pending the determination of his asylum claim (paragraph 17). An incautious reading of that decision might lead to the conclusion that it held that the mere acceptance for consideration of a claim for asylum amounted to permission to remain in the country. But Mr. Commissioner Hallett, who had been a member of the Tribunal, explained clearly in paragraphs 13 to 17 of decision R(SB) 25/85 that R(SB) 24/84 turned on the fact that following the claim for asylum the Home Office had sent the claimant a letter saying that permission to stay was extended. Thus it was a case where leave to remain had expressly been given. R(SB) 24/84 does not affect a case, like the present, where the Home Office has said nothing beyond recording the claim for asylum. There is nothing in R(SB) 24/84 to contradict the conclusion I have reached in the previous paragraph.
15. Does any provision of European Community law require a different result? The potentially relevant provision is Decision No. 3/80 of the Association Council under the Association Agreement between the European Economic Community and Turkey. Under Article 2 the persons to whom the Decision applies include "workers who are, or have been, subject to the legislation of one or more Member States and who are Turkish nationals". This covers the claimant in the present case, by virtue of his employment in the United Kingdom in 1997 and 1998. Article 3(1) of Decision No. 3/80 provides:

"1. 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 States as the nationals of that State."

It was held by the European Court of Justice ("ECJ") in Sürül v Bundesanstalt für Arbeit (Case C-262/96) [1999] ECR I-2685 that Article 3(1) has direct effect and can therefore be relied on by individuals before national courts. Because the claimant's appeal to the appeal tribunal was made before the date of the judgment in Sürül (4 May 1999) he can rely on Article 3(1) free of the temporal limitation imposed in the judgment. Finally, it is not in dispute that income-based JSA is an unemployment benefit within Article 4 of Decision No. 3/80.

16. The question to be answered is therefore whether on 13 May 1998 the claimant came within Article 3(1), whose protection is expressly limited to those people coming within Article 2 who are "resident" in the territory of the Member State concerned. By Article 1(a) the term "residence" has the same meaning as in Council Regulation (EEC) No. 1408/71, where it means "habitual residence". Ms. White submitted that "resident" in Article 3(1) referred to the purely factual concept of habitual residence, to which legal questions as to whether the residence was authorised or the person concerned was unlawfully resident or present were irrelevant. She submitted that the claimant in the present case was resident in the United Kingdom at least by 13 May 1998 and so came within Article 3(1). Mr. Maurici submitted that it was an essential condition of "residence" within Article 3(1) that the residence should be authorised and lawful, and that on 13 May 1998 the claimant's residence was not authorised or lawful. I accept the conclusion of Mr. Maurici's submission.
17. I base that partly on the judgment of the ECJ in Sürül. There the claimant was a Turkish national who had been authorised to join her husband in Germany, where he had an authorisation to study and to work part-time. Thus they were both lawfully resident in Germany. The claimant was denied family allowances for which the general test of entitlement was domicile or habitual residence in Germany, under a rule which required foreign nationals to have a permanent residence authorisation rather than the limited authorisation possessed by the claimant and her husband. The ECJ held that this was contrary to Article 3(1) of Decision No. 3/80. It said in paragraphs 96 and 98 of the judgment:

"96. ... [I]t is necessary, finally, to determine whether Article 3(1) of that decision must be interpreted as precluding the application of legislation of a Member State which requires that a Turkish national, who has been authorised to reside in its territory and is lawfully resident there, hold a certain type of residence document in order to receive family allowances.

98. It follows that a Turkish national who has been authorised to enter the territory of a Member State in order to reunite the family of a Turkish migrant worker and who lawfully resides there with that worker must be able to obtain in the host Member State a social security benefit provided for by the legislation of that State under the same conditions as the nationals of the Member State concerned."

18. Are those references to authorised residence and lawful residence merely descriptive of the facts in Sürül, as Ms. White submitted, or do they express a condition of the application of Article 3(1), as Mr. Maurici submitted? In my judgment they do express a condition.
19. First, the language used by the ECJ seems to me more consistent with that approach, and in a case where the nature of residence was part of the issue. The absence of any mention of authorisation of residence in other cases on the meaning of residence relied on by Ms. White is not significant. Those cases concerned nationals of Member States whose authorisation to reside was not in dispute.
20. Second, that approach seems more consistent with the line of ECJ decisions on the rights to residence of Turkish workers under Decision No. 1/80 of the Association Council, where it has been stressed that such workers are "not entitled to move freely within the Community but benefit only from certain rights in the host Member State whose territory they have lawfully entered and where they have been in legal employment for a specified period" (Tetik v Land Berlin (Case C-171/95) [1997] ECR I-329, paragraph 29). More recently, in R v Secretary of State for the Home Department, ex parte Savas (Case C-37/98) [2000] All ER (EC) 627 it was said in paragraph 65:

"So, a Turkish national's first admission to the territory of a Member State is governed exclusively by that state's own domestic law, and the person concerned may claim certain rights under Community law in relation to holding employment or exercising self-employed activity, and, correlatively, in relation to residence, only in so far as his position in the Member State concerned is regular."

Thus Mr. Savas could not derive a right of residence under Community provisions from overstaying his tourist visa and then engaging in business (paragraph 67). Since I regard this line of decisions as merely a general background to the conclusion which I had already reached I have not asked for any further submissions on the vast number of cases involved.

21. Third, the approach in paragraph 17 above is consistent with the approach to the meaning of residence in English law, and, it seems to me, with its general meaning. For example, Lord Scarman said this in his classic exposition of the concept of ordinary residence in Shah v Barnet London Borough Council [1983] 2 AC 309, at 343:

"There is, of course, one important exception. If a man's presence in a particular place or country is unlawful, eg in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence ... There is, indeed, express provision to this effect in the Immigration Act 1971, s 33(2). But even without this guidance I would conclude that it was wrong in principle that a man could rely on his own unlawful act to secure an advantage which could [not] have been obtained if he had acted lawfully."

22. Thus in my judgment, adopting the general meaning of residence in the context of the EEC/Turkey Association Agreement and guided by the conditions expressed in Sürül, a person may only rely on Article 3(1) of Decision No. 3/80 if authorised to reside in the Member State concerned and lawfully resident there.
23. In the present case, the claimant was not authorised to reside in the United Kingdom on 13 May 1998 and therefore cannot rely on Article 3(1) to remove the effect of the domestic legislation. He was a person who required leave to remain in the United Kingdom. After the expiry of his six months' limited leave, with no application for variation (or at the most on the current evidence no determination on an implied application made after the expiry of his leave), he had no leave to remain. Thus, despite his undetermined claim for asylum, he was not authorised to reside here and was not resident in the United Kingdom within the meaning of Article 3(1). In that sense his residence was unlawful. I note that section 24(1)(b)(i) of the Immigration Act 1971 makes it a criminal offence knowingly to remain in the United Kingdom beyond the time limited by a grant of limited leave to enter or remain and that section 3(5) makes a person who remains beyond the time limited by leave liable to deportation. The protection of the Immigration (Variation of Leave) Order 1976 is limited to applications for variation made before the expiry of leave.
24. In reaching that conclusion I have not gained any direct assistance from the recent decision of the Court of Appeal in Kaya v London Borough of Haringey and another [2001] EWCA Civ 677 (1 May 2001), which was much relied on by the Secretary of State. That case concerned the meaning of the phrase "lawfully present" in the Homelessness (England) Regulations 2000 under the regime established by section 115 of the Immigration and Asylum Act 1999, which was not in force at the dates with which I am concerned. The Court of Appeal held that a person granted temporary admission to the United Kingdom under paragraph 21 of Schedule 2 to the Immigration Act 1971 could not be lawfully present here. But that was because of the specific effect of section 11(1) of the Immigration Act 1971 deeming such a person not to have entered the United Kingdom. A person who is deemed not to be present cannot be lawfully present. That is a special case, very different from the circumstances of the present case, where I do not have to interpret the phrase "lawfully present". Nor is the decision of Mr. Commissioner Rowland in R(FC) 1/01 to be regarded as contrary to my conclusion. He was concerned there with very different legislation and did not have to consider whether the claimant and her husband in that case were "resident" in the United Kingdom for the purposes of Article 3(1) of Decision No. 3/80.
25. Finally, there is nothing in ECSMA on which the claimant can rely. Even if JSA had been added to the benefits covered in Annex I, which it has not, ECSMA creates only international obligations, not obligations and rights on which an individual can rely directly against a state in which he is lawfully present. There is no ambiguity in the JSA Regulations giving scope for interpreting them so as to comply with ECSMA.
26. Therefore, effect must be given to the JSA Regulations as in paragraph 12 above. The result is that I must substitute the decision on the claimant's appeal against the adjudication officer's decision issued on 20 May 1998 that the claimant was not entitled to income-based jobseeker's allowance from and including 13 May 1998 because he is person from abroad with an applicable amount of nil. As the appeal was made after 21 May 1998, I cannot consider any changes of circumstances after 20 May 1998.

Date: 26 September 2001 (Signed) J Mesher

Commissioner