UK Social Security and Child Support Commissioners' Decisions

[2002] UKSSCSC CJSA_3027_2002 (17 October 2002)

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the Whittington House appeal tribunal, held on 21^st March 2002 under reference U/45/161/2001/02277, is not erroneous in point of law.

The appeal to the Commissioner

2. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with my leave. The Secretary of State does not support the appeal.

The facts

3. This case concerns the claimant's entitlement to an income-based jobseeker's allowance. The claimant is Turkish and came to the United Kingdom from Germany on 2^nd March 1999. He claimed asylum. The claim was refused. While the claim was pending he was granted temporary admission to the country. When his claim was refused, he was nonetheless granted temporary admission. That was his position when he claimed a jobseeker's allowance.

Lawful presence in the United Kingdom

4. Was the claimant lawfully present in the United Kingdom?
5. The issue arises in this way. The claimant claimed a jobseeker's allowance. The basic rule is that he is not entitled to that allowance if he is subject to immigration control. See section 115(1) and (3) of the Immigration and Asylum Act 1999. However, the basic rule does not apply if the claimant is covered by paragraph 4 of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000:

'A person who is a national of a state which has ratified the European Convention on Social and Medical Assistance (done in Paris on 11^th December 1953) … and who is lawfully present in the United Kingdom.'

6. Section 11(1) of the Immigration Act 1971 provides that a person who has been 'temporarily admitted' is deemed not to have entered the United Kingdom. The Court of Appeal has decided that the effect of that provision is that the person is not lawfully present in the United Kingdom: see Murat Kaya v Haringey London Borough Council and the Secretary of State for Social Security. Although that case was concerned with different statutory provisions, I cannot distinguish it from this case. I am bound by it to hold that the claimant was not lawfully present in the United Kingdom. He was, therefore, not entitled to a jobseeker's allowance.

Lawful residence

7. The claimant's representative has also argued that the claimant was lawfully resident in the United Kingdom under Decision 3/80 under the EC-Turkish Association Agreement 1963. This refers to 'residence'. It defines that term as having the same meaning as in Article 1 of Regulation (EEC) 1408/71. There the term is defined as meaning habitual residence. Mr Commissioner Mesher has decided that that requires the claimant to be lawfully resident: CJSA/4705/1999, paragraphs 15 to 20. I respectfully agree with that for the reasons he gave.
8. In this case, the claimant was not lawfully resident. I come to that conclusion for two reasons.
9. First, by parity of reasoning, if section 11(1) prevents the claimant being lawfully present, it likewise prevents him lawfully resident.
10. Second, in order to be habitually resident, the claimant must be resident. It is possible to be retain residence in a country while not present there. However, it is not possible to establish residence in a country without being present. A person who is treated as not being present in a country cannot, therefore, establish residence there.

Conclusion

11. I dismiss the appeal.

Signed on original

Edward Jacobs Commissioner 17th October 2002