UK Social Security and Child Support Commissioners' Decisions

 


CF/3662/1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I dismiss the claimant's appeal against the decision of the Edmonton social security appeal tribunal dated 16 December 1997.

REASONS

2. The claimant was an asylum seeker who claimed child benefit on 20 November 1996. She was awarded child benefit in respect of the period from 6 May 1996 to 6 October 1996 but her claim was disallowed in respect of the period from 7 October 1996. Section 146A of the Social Security Contributions and Benefits Act 1996 came into effect on 7th October 1996 and it provides –

"No person subject to immigration control within the meaning of the Asylum and Immigration Act 1996 shall be entitled to child benefit for any week unless he satisfies prescribed conditions."

The only condition possibly relevant to the present case is that the claimant be a person who, "immediately before 7th October 1996, is being paid child benefit" (regulation 14B(g) of the Child Benefit (General) Regulations 1976, as amended by regulation 2 of the Child Benefit (General) Amendment Regulations 1996). The adjudication officer considered that, as an asylum seeker, the claimant was subject to immigration control and that she was not being paid child benefit before 7 October 1996 because her claim and award were not made until after that date. The claimant appealed against the disallowance but the tribunal upheld it and the claimant now appeals to me with the leave of the tribunal chairman.

3. On this appeal, the claimant has been represented by the Public Law Project. She has accepted that, in the light of the decision of the Court of Appeal in Regina v. Adjudication Officer, ex parte Velasquez (17 March 1999), reaching the same conclusion as a Commissioner in R(F) 1/99, her appeal cannot succeed under domestic law. At one time there was a suggestion that there might be an argument under the European Convention on Human Rights but, as the relevant events took place before 2 October 2000, it is clear that she cannot rely on the incorporation of the Convention into domestic law by the Human Rights Act 1998. She has also accepted that it has been held by the Court of Appeal in Krasniqi v. Chief Adjudication Officer (reported as R(IS) 15/99) that a claimant who has no connection with any European Union Member State other than the United Kingdom cannot rely on Regulation (EEC) 1408/71. However, she initially submitted that the Court of Appeal had proceeded on a mistaken understanding of European Union law and that she was entitled to argue that the tribunal's decision in this case was inconsistent with Article 3(1) of Regulation (EEC) 1408/71 which entitles those to whom the Regulation applies, including refugees, to the same rights as nationals of the Member State in which they reside. As the same point had been raised in Cases C-407/99 P. v. Landeskreditbank Baden-Wurttenberg - Foderbank and C-425/99 A. v. Landeskreditbank Baden-Wurttenberg – Foderbank, which were pending before the European Court of Justice, I deferred consideration of the present appeal to await the Court's judgment in those cases. I was then told that the references to the European Court of Justice in those two cases had been withdrawn and that the proceedings were struck out on 11 December 2001.
4. Following the withdrawal of those references, the Secretary of State at first suggested he would not object to me making a reference to the European Court of Justice in the present case. However, on further reflection, he now submits that I should simply dismiss the appeal, because the references in Cases C-407/99 and C-425/99 were withdrawn in the light of the judgment of the European Court of Justice in joined Cases C-95/99 (Khalil v. Bundesanstalt fur Arbeit) to C-98/99 and C-180/99, where it was held –

"Workers who are stateless persons or refugees residing in the territory of one of the Member States, and members of their families, cannot rely on the rights conferred by Regulation No 1408/71, as amended and updated by Regulation no 2001/83, where they are in a situation which is confined in all respects within that one Member State."

The Court of Appeal's decision in Krasniqi is entirely consistent with that decision.

5. The claimant does not oppose the submission that her appeal must now be dismissed. The decisions of the Court of Appeal and the European Court of Justice are binding on me. I therefore dismiss this appeal.

(signed) MARK ROWLAND

Commissioner

2 July 2002