UK Social Security and Child Support Commissioners' Decisions

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[2007] UKSSCSC CIS_3255_2005 (19 December 2007)

CIS/3255/2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I dismiss the claimant's appeal against the decision of the Birmingham appeal tribunal dated 3 May 2005.

REASONS

The claimant is a Norwegian national of Somali origin who came to the United Kingdom on 31 August 2003 with her four children. She went to live with her father, who was then aged 88, in his two-bedroom house. On 3 August 2004, the claimant claimed income support. The claim was disallowed on 15 September 2004 on the ground that she did not have a right to reside in the United Kingdom and so could not be treated as habitually resident here and had an applicable amount of nil (see regulation 21 of the Income Support (General) Regulations 1987 (S.I. 1987/1967) as then in force). She appealed, mentioning that she had to look after her father. The tribunal dismissed her appeal. She now appeals against the tribunal's decision with my leave.

I granted leave to appeal because the tribunal did not investigate whether the claimant had a right of residence as a dependant of her father, although it is fair to record that it had not been asked to do so. The question whether she had a right of residence as her father's dependant requires some consideration of his position. It now appears that he was probably still a Somali national when he arrived in the United Kingdom and that he had claimed asylum on his arrival. Having been granted asylum, he had become a naturalised British citizen on 22 July 2004. At some time – I think after September 2004 – he was awarded attendance allowance and the claimant was awarded carer's allowance. He had a right of residence in the United Kingdom, but that was by virtue of purely domestic law. As there is no evidence that he had any right of residence under the law of the European Communities or under the Agreement on the European Economic Area 1992, it is clear that the claimant had no right of residence as a dependant under the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326). The tribunal's failure to investigate the father's position therefore made no difference to the outcome of the claimant's appeal.

In the course of this appeal, the claimant has produced a residence permit that was issued to her by the immigration authorities on 13 February 2006. Given that the appeal to me is on a point of law only and also given section 12(8)(b) of the Social Security Act 1998, that permit cannot be of direct relevance to this appeal. Moreover, although a residence permit is capable of being indirect evidence of the holder's status before it was issued, the claimant's solicitors have not been able to explain on what ground the permit was issued in this case and so it would have had no evidential value at all even if an appeal lay on a question of fact.

In the light of the Court of Appeal's decision in Abdirahman v. Secretary of State for Work and Pensions [2007] EWCA Civ 657, I am satisfied that the claimant had no right of residence under Community law or the EEA Agreement.

She may, on the other hand, possibly have had a case for obtaining leave to remain, under the Immigration Act 1971. Because EEA citizens generally have a right to be present in the United Kingdom even when they have no right of residence, and because the immigration authorities are primarily concerned with whether people are lawfully present in the United Kingdom and are not normally concerned with whether they have a right to reside unless an application has been made for a residence permit under the 2000 Regulations or their successor, the immigration authorities appear not ordinarily to consider whether EEA citizens should be granted leave to enter or remain under the 1971 Act. However, since decisions under the 1971 Act can confer a right of residence and since a right of residence has, in effect, been made a condition of entitlement to certain benefits such as income support, it seems to me that those who do not have a right of residence by virtue of EEA citizenship may sometimes need to put pressure on the immigration authorities to consider their status under that Act. There are EEA nationals who have no right of residence under Community law or the EEA Agreement but who might be able to obtain unconditional leave to enter or remain under the 1971 Act. EEA nationals should not be worse off than other non-British nationals. The need to obtain a decision from the immigration authorities in these circumstances arises because, except where it provides that certain persons have a right of abode in the United Kingdom, the 1971 Act does not confer any right to enter or remain in the United Kingdom until the immigration authorities make a decision to that effect (which will not be retrospective).

It is possible that the residence permit issued in this case was issued in lieu of leave to remain. Be that as it may, although the claimant might have been able to rely on the permit from 13 February 2006, there is no evidence that she had any right of residence at the date of the Secretary of State's decision in this case.

Therefore, even in the light of the additional evidence before me, it is clear that the tribunal reached the correct conclusion. In the circumstances of this case, the tribunal's failure to investigate the case more thoroughly does not render its decision erroneous in point of law.

(signed on the original) MARK ROWLAND

Commissioner

19 December 2007