UK Social Security and Child Support Commissioners' Decisions

[2007] UKSSCSC CPC_4317_2006 (21 March 2007)

CPC 4317 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow this appeal. The decision of the tribunal is wrong in law. I replace the decision of the tribunal with the decision it should have taken. This is:

Appeal allowed. The appellant is a British citizen with a right of abode. The decisions of the Secretary of State that she is a sponsored immigrant is wrong in law and is set aside. The appeal is referred to the Secretary of State to consider the appellant's entitlement to state pension credit in the light of this decision.

2. The appellant, Mrs H, applied for and was paid minimum income guarantee and then state pension credit ("credit") from January 2003. Her entitlement was reviewed and the award of credit to her ended on 10 04 2006. The papers suggest that this happened without any prior warning to or enquiry of the appellant. It appears that the Department for Work and Pensions did some sort of trawl through its sponsorship files in 2006 and found a sponsorship agreement relating to Mrs H signed in 2002. This was passed to a decision maker who stopped Mrs H's benefit without further enquiry. Mrs H was told that she was a sponsored immigrant whose five year sponsorship started on 30 11 2002. She could not receive any benefit until at least 30 11 2007.
3. Mrs H replied with a copy of her British passport. She had become a British Citizen in December 2004. She also sent in a copy of her naturalisation certificate. For some reason I frankly do not understand this was completely ignored. She was told again that she was a sponsored immigrant and that she had no entitlement to benefit. The papers later listed the copy of her British passport as an EU passport. It was also ignored as an EU passport.
4. The matter went to an appeal tribunal. Mrs H repeated her assertion that she was a British citizen. I have even greater difficulty understanding the tribunal decision. The record states that the appeal was disallowed but the decision of the Secretary of State was revised. It was not revised. The tribunal found (in the present tense) that Mrs H is a sponsored immigrant. It added that she was not entitled to any benefit until 30 November 2007 assuming that she remained in the United Kingdom until then. Her British citizenship was ignored again. And it was ignored again when she was refused permission to appeal by a district chairman after she again drew attention to her status as a British citizen.

Benefit entitlements of British citizens

5. The departmental officials and tribunal judiciary were all fundamentally wrong. A British Citizen is not an immigrant. She or he can never be regarded as a sponsored immigrant or barred for that reason from public funds. Further, the effect of her appeal was a warning not to travel outside the United Kingdom for several years on pain of again losing her entitlement to benefit. That is also fundamentally wrong.
6. Individuals may become British citizens by birth and by several other qualifying circumstances. These are set out in the British Nationality Act 1981. All British citizens have a right of abode in the United Kingdom. This is confirmed by section 2(1)(a) of the Immigration Act 1971. Section 1(1) of the Immigration Act 1971 sets out the general principles of the right of abode:

"All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person."

Section 3 of the Immigration Act 1981 allows the Secretary of State to impose conditions requiring individuals to maintain and accommodate themselves and any dependants without recourse to public funds (section 3(1)(c)(iii). Section 3 expressly applies only "where a person is not a British citizen". In other words, it applies to those without a right of abode.

Mrs H's entitlement

7. Mrs H became a British citizen on 1 December 2004. Since then she has the right of abode. She cannot be subject to immigration control or conditions about maintenance and accommodation from that day. Nor can she be prevented from coming and going into and from the United Kingdom without let or hindrance. Since that day, Mrs H, who is over the qualifying age, has been entitled in principle to state pension credit.
8. It was decided in 2003 that no question arose about Mrs H's habitual residence.

She was awarded benefit after a local departmental official interviewed her in hospital. The official filled in the form. It is clear from the contemporary note that immigration status and sponsorship were considered. It is not clear that there are grounds in this case to revise the award for the period after that interview and before Mrs H became a British citizen. There is no obvious ground for revision in the papers. But if I am wrong on that, I express the hope that the matter will be left as it is once her entitlement is reinstated. Mrs H repeatedly asserted her rights as a British citizen. Those who should have known better repeatedly ignored those rights. The effect was both to deprive her of all benefit entitlement and of her freedom of movement.

Direction

9. I direct that my concern about the fundamental errors in this case be drawn to the attention of those who advise the Secretary of State. The secretary of state's representative indicated to me that there is no guidance to officials on the matter. I have looked at Volume 2: International Subjects of the Department for Work and Pensions Decision Maker's Guide. This deals with the position of persons from abroad and with those who are not, by reason of European law or otherwise, persons from abroad. I may have missed something, but British citizenship appears to be listed merely as a nationality entitling claimants to rights under European Union law. See paragraphs 070040 and 071873. I can see nothing about the right of abode of British citizens. The decision is to be copied also to the chairman of the tribunal.

David Williams

Commissioner

21 03 2007

[Signed on the original on the date stated]