UK Social Security and Child Support Commissioners' Decisions

[2008] UKSSCSC CIS_3762_2006 (24 January 2008)

CIS/3762/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The Secretary of State's appeal is allowed. The decision of the Fox Court tribunal given on 9 February 2006 (the tribunal) is erroneous in point of law and I set it aside. As I can do so without making any further findings of fact, I substitute my own decision, which is that the claimant had an applicable amount of nil in respect of her claim to income support made on 22 July 2005. This is because she was not a person with a right to reside in the United Kingdom.
2. Final determination of this case has been delayed as the case was stayed pending publication of the Court of Appeal's decision in Abdirahman [2007] EWCA Civ 657, in which the decision of a Tribunal of Commissioners in CIS/3573/2005 was upheld by the Court of Appeal.
3. The claimant, a citizen of the Netherlands, entered the United Kingdom on 15 July 2005, having left behind her in the Netherlands an abusive former spouse. She had not worked in the Netherlands, being dependent there on benefits. Nor at any time relevant to this appeal did she work in the United Kingdom. It was not clear from the tribunal papers whether she was living in the household of a friend, or that of her brother. Though she said her brother was working, as his earnings were said to be only £70 per week, with a non-working wife and a young child to support, it is clear, even if she was a member of his household for some or all of the time relevant to this appeal, her brother was not self-sufficient. On this evidence she was not a family member of a qualified person. On 22 July 2005, just a week after entering the United Kingdom, the claimant applied for income support as a lone parent. The claim was refused by the Secretary of State on 26 September 2005 on the basis that the claimant was not a person with a right to reside in the United Kingdom and therefore her applicable amount was nil.
4. Her appeal against this decision was heard by the Fox Court tribunal. It decided that the claimant could be treated as being habitually resident from 15 October 2005 if the claim made on 22 July 2005 was treated as an advance claim. The date from which her appeal was allowed was three months from the date that she had entered the United Kingdom. The tribunal, having considered all the relevant arguments, rejected the Secretary of State's argument that the claimant did not have a right to reside in the United Kingdom. The tribunal chairman recognised, in the very detailed reasons given, that if the decision of the Tribunal of Commissioners in CIS/3573/2005 was correct, then his reasoning could not stand. The Secretary of State promptly appealed against the tribunal's decision, but as stated above, determination of the appeal was delayed until after publication of the Court of Appeal's decision in Abdirahman. After publication of that decision, the claimant was given an opportunity to make further submissions before her appeal was finally determined. Her representative produced further arguments, one of which (relating to potential 'worker' status) was irrelevant as it related to a change of circumstance since the decision under appeal was given. However her representative also raised a question involving the principles of the Baumbast case, with which I deal at paragraphs 6, 7 and 8 below.
5. Given the decision of the Court of Appeal, the relevant law, so far as the claimant is concerned, can be summarised very briefly. From 1 May 2004 no person could be treated as habitually resident in the United Kingdom unless that person had a right to reside in the United Kingdom. There was transitional protection for those in receipt of specified benefits on 30 April 2004, but this, of course, could not help the claimant, who did not enter the UK until over a year later. As a citizen of an EU state, the claimant's position was dealt with by section 7(1) of the Immigration Act 1988 (in force from 1994) which provided that a person who had an enforceable community right to enter the United Kingdom did not require leave to enter or to remain in the United Kingdom. The Immigration (European Economic Area) Regulations 2000 (the regulations) provides that a qualified person is entitled to reside in the United Kingdom, without the requirement for leave to remain, for so long as he remains a qualified person (regulation 14). A qualified person is one of those persons specified in regulation 5, that is a person who falls into the category of worker, self-employed, a provider of or recipient of services, is self-sufficient, is retired, or a self-sufficient student. It will be seen that the claimant fell into none of these categories and therefore, although there is no doubt that she was lawfully present in the United Kingdom, she did not have a right to reside at the time relevant to this appeal because she was not a qualified person. As the Court of Appeal stated in Barnet London Borough Council v. Abdi [2006] EWCA Civ 383, non-economically active EU citizens did require leave to remain in the United Kingdom, whether or not such leave had been given. As Mr Justice Lloyd said in that case:

"Regulation 14 of the Immigration (European Economic Area) Regulations 2000 gives an EEA national an entitlement to reside in the United Kingdom 'without the requirement for leave to remain under the 1971 Act' for as long as he remains a qualified person. If he ceases to be a qualified person, it follows that he no longer has an entitlement to reside in the UK, and that he does from then on require leave to remain under the 1971 Act … such a person is clearly 'subject to immigration control' …"

This is sufficient to dispose of the arguments that were considered by the tribunal and raised in the arguments before it.

6. What then of the argument raised by the claimant's present representative concerning the position of her children and their 'right to education'? The argument that the claimant was a worker is misconceived as it relates to the present appeal, because the work in question did not begin until after the date of the decision under appeal. It was argued that after leaving work, the claimant retained a right to reside because of the ruling in Baumbast and R v. Secretary of State for the Home Department (Case – 413/99) [2002] E.C.R.       I-7091. The submission from the CAB goes on to refer to the Chen case and states that "the primary carer will have a right of residence where the EU national is a child and where that child needs their primary carer in order to exercise free movement rights".
7. This argument is mistaken. Baumbast has no application. Baumbast involved a self-sufficient worker and the rights in question were those established in that capacity. The claimant here was not a worker at the relevant time and therefore the facts of Baumbast do not arise. The argument about the child's free movement rights is also mistaken. Article 39 of the European Convention provides freedom of movement for workers and provides that freedom of movement for workers shall entail the right, subject to limitations justified on grounds of public policy, public security or public health, to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State. Article 1(1) of Directive 90/364 provides that Member States shall grant the right of residence to nationals of other Member States who do not enjoy this right under other provisions of community law and to members of their families provided that they themselves and the members of their families are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence.
8. The claimant in this case was not a qualified person. The European Treaty does not give her children a right of freedom of movement from which the parent derives rights. It is the other way round. A parent, if a qualified person, has a right of freedom of movement within the EU. The Court of Appeal considered the question of whether a parent had a right which derived from a child's 'right to education' in Ali and the Secretary of State for the Home Department [2002] EWCA Civ 484. The Court of Appeal held that parents cannot claim residence rights through schooling. The court held that parents with a child of school age, where that child was a citizen of the EU, could not claim for him, or by derivation for themselves, a right of residence elsewhere in the EU based simply on the right of the child to education in another Member State. The Court of Appeal noted the European jurisprudence, in particular Grzelczyk (Case C/1284/99) and DeHoop (Case C/ 224/98) which show that the pursuit of education is an activity within the scope of the European Treaty. The court found that these directives and case law were subject to the requirement that citizens of other EU States were self-sufficient and had sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence. The court held that the residence of those enrolled at private or public educational establishments, accredited or financed by the host Member State for the purposes of following a course of study, was conditional on the EU citizen having sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State. The court noted (see paragraph 20 of its judgment) that there was no ECJ jurisprudence which recognised an unfettered right of residence. The court went on to say:

… what is striking is that the Court [ECJ] nowhere suggested that the child as a citizen of the Union had a right of residence simply by virtue of Article 18 and his pursuit of primary education. As for the cases relied upon … they merely reflect the principle that, when a citizen of the Union is studying in one Member State, he is not to be discriminated against on grounds of nationality or because the study took place in another Member State. They tell one nothing about rights of residence … (per Keene LJ).

9. Accordingly, for the reasons stated above, the claimant was not a qualified person at the date of her claim to income support on 22 July 2005, nor was she a qualified person on 26 September 2005, the date the Secretary of State refused her claim. She was therefore not a person with a right to reside in the United Kingdom and her applicable amount was correctly determined by the Secretary of State to be nil.

(Signed on the Original) Mrs A Ramsay

Deputy Commissioner

Date 24 January 2008