UK Social Security and Child Support Commissioners' Decisions

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[2008] UKSSCSC CIS_4299_2007 (23 May 2008)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is given under section 14(8)(b) of the Social Security Act 1998:

I SET ASIDE the decision of the Fox Court appeal tribunal (Ms J A Talbot), held on 9 July 2007 under reference 242/07/03191, because it is erroneous in point of law.

I REMIT the case to an appeal tribunal consisting of Ms Talbot or, if she is not available to take the case within a reasonable time, to a differently constituted appeal tribunal.

If the appeal is heard by Ms Talbot, I DIRECT her to deal with the outstanding issues identified in my decision.

If the appeal is heard by a differently constituted appeal tribunal, I DIRECT it to conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion under section 12(8)(a) of the 1998 Act, any other issues that merit consideration.

In either case, I have assumed that the Secretary of State will not withdraw the concession made before me (page 61). If that concession is withdraw, the tribunal will have to decide for itself whether the claimant was legally resident in the United Kingdom between 2 October 2000 and the end of February 2005.

I abridge the time within which the Secretary of State may apply for permission to appeal to the Court of Appeal against this decision to one month from the date of issue: regulation 5(2)(a) of the Social Security Commissioners (Procedure) Regulations 1999.

REASONS

The issue in this case is whether the claimant is entitled to income support. That depends on whether she is a person from abroad. And that in turn depends on whether she has the right of permanent residence in the United Kingdom.

Income support legislation

Income support was established by the Social Security Act 1986. The relevant provisions have been consolidated by the Social Security Contributions and Benefits Act 1992.

Section 124(1) of the 1992 Act provides:

'(1) A person in Great Britain is entitled to income support if-

…

(b) he has no income or his income does not exceed the applicable amount.'

Section 135 provides:

'(1) The applicable amount, in relation to any income-related benefit, shall be such amount or the aggregate of such amounts as may be prescribed in relation to that benefit.

(2) The power to prescribe applicable amounts conferred by subsection (1) above includes power to prescribe nil as an applicable amount.'

The Income Support (General) Regulations 1987 are made, in part, under that authority. Paragraph 17 of Schedule 7 to those Regulations prescribes that the applicable amount for a 'person from abroad' is nil.

'Person from abroad' is defined by regulation 21AA. This has been the governing provision since 30 April 2006. The relevant provisions of the current version provide:

'Special cases: supplemental – persons from abroad

21AA.—(1) "Person from abroad" means, subject to the following provisions of this regulation, a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.

…

(4) A claimant is not a person from abroad if he is—

(a) a worker for the purposes of Council Directive No. 2004/38/EC;

…

(e) a person who has a right to reside permanently in the United Kingdom by virtue of Article 17 of that Directive;

…'

Permanent residence - Directive 2004/38/EC

Preamble 17 to this Directive explains the policy underlying the right of permanent residence:

'(17) Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.'

Article 16 of the Directive implements this policy:

'1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. …

2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.

3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absence of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting to another Member State or a third country.

4. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.'

Permanent residence – the European Economic Area legislation

There have been three statutory instruments governing residence by nationals of EEA States: the Immigration (European Economic Area) Order 1994; the Immigration (European Economic Area) Regulations 2000; and the Immigration (European Economic Area) Regulations 2006.

Article 16 of the Directive is implemented by regulation 15 of the 2006 Regulations:

'(1) The following persons shall acquire the right to reside in the United Kingdom permanently-

(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years'.

This is supplemented by regulation 3:

'Continuity of residence

3.-(1) This regulation applies for the purpose of calculating periods of continuous residence in the United Kingdom under regulation 5(1) and regulation 15.

(2) Continuity of residence is not affected by-

(a) periods of absence from the United Kingdom which do not exceed six months in total in any year;

(b) periods of absence from the United Kingdom on military service; or

(c) any one absence from the United Kingdom not exceeding twelve months for an important reason such as pregnancy and childbirth, serious illness, study or vocational training or an overseas posting.

(3) But continuity of residence is broken if a person is removed from the United Kingdom under regulation 19(3).'

Paragraph 6 of Schedule 4 to those Regulations provides for continuity with the 2000 Regulations, which came into force on 2 October 2000:

'Periods of residence under the 2000 Regulations

6.-(1) Any period during which a person carried out an activity or was resident in the United Kingdom in accordance with the 2000 Regulations shall be treated as a period during which the person carried out that activity or was resident in the United Kingdom in accordance with these Regulations for the purpose of calculating periods of activity and residence under these Regulations.'

There is no equivalent provision in respect of residence under the Immigration (European Economic Area) Order 1994, either in the 2006 Regulations or in the 2000 Regulations.

The issue and how it arises

The claimant is French. She made a claim for income support on 20 November 2006, which was refused on the ground that she was a person from abroad. She exercised her right of appeal with the assistance of the CAB. The only argument put by the CAB on her behalf was that she had a permanent right to reside in the United Kingdom. The tribunal accepted that argument and I gave the Secretary of State leave to appeal to the Commissioner.

The Secretary of State now concedes that the claimant had a right to reside between 2 October 2000 and February 2005. The claimant says that she left for France at the end of February 2005, having lost her job and being in need of a break. That means, on the Secretary of State's concession, that she resided here for four years and five months. That is seven months short of the five years necessary to establish a permanent right of residence.

The significance of the dates conceded by the Secretary of State is this. 2 October 2000 is the date when the Immigration (European Economic Area) Regulations 2000 came into force. And February 2005 is the time when the claimant left to visit France. She did not return until 23 December 2005. She was out of the United Kingdom for almost 10 months. A period of 10 months prevents time continuing to run for the five years required for a permanent right of residence, being longer than the six months permitted by Article 16(3). But it is not sufficient to terminate a permanent right of residence, being shorter than the two years set by Article 16(4). So if the claimant had a permanent right to reside before she left for France, she did not lose it during her absence. But if she did not have a permanent right to reside before she left for France, the time she resided here before she left does not count in establishing a permanent right of residence.

The tribunal found that the claimant had resided for five years by taking account of residence before 2 October 2000. On its findings, the claimant had established a permanent right of residence before she left for France and, therefore, retained that right until she had been absent for two years. However, the Secretary of State has argued that only residence since 2 October 2000 can be taken into account.

The claimant told the tribunal that she had worked for the same employer as a waitress between April 2000 and 17 May 2002. That means that she worked for a continuous period of six months immediately before 2 October 2000, which is still one month short of the five months required for permanent residence. Before April 2000, she was not employed, but may have been looking for work.

On these facts, the issues are these. First, does residence before 2 October 2000 count towards the five years for permanent residence? Second, if it does, does time spent as a jobseeker count? The answer to both those questions is: yes. These are my reasons.

Analysis of the law – the nature of European Economic Area legislation

The Explanatory Note to each of the statutory instruments dealing with residence for nationals of EEA States explains that it implements EC Council Directives on the freedom of movement. That is important to understanding their scope.

There are three main sources of EC law. The Treaties are the primary source of legal authority. Regulations and Directives may be made in so far as authorised by the terms of the Treaties. Article 249 of the EC Treaty defines their effect:

'A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.

'A directive shall be binding as to the result to be achieved upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.'

However, some provisions in some Directives have direct effect, so that they are enforceable against a Member State even if they have not been correctly implemented in domestic law.

This brief statement explains why the EEA legislation is limited to implementing Directives. It is the nature of Directives that they have to be implemented. That is so, even if they have direct effect: the Member State is under a duty to implement the provisions even if they would have effect anyway. However, provisions of the Treaties and Regulations take effect without being implemented in domestic law and it is unnecessary and inappropriate for the EEA legislation to include them. This explains why the statutory instruments have all conferred rights of residence on specified conditions, but have not stated that those rights are exhaustive. They could not do so, because they could not be a comprehensive statement of rights of residence. Those rights do not derive solely from Directives. They derive also from the Treaties and Regulations, as well as from domestic law.

This is significant for two reasons, one general and the other specific.

The general reason is this. The Directive provides for a permanent right to reside for those who have 'resided legally for a continuous period of five years in the host Member State'. That provision is of direct effect. It makes no reference to the source of the right to reside, other than that it must be legal. The 2006 Regulations provide for a permanent right to reside for those who have 'resided in the United Kingdom in accordance with these Regulations' and extend that to include residence 'in accordance with the 2000 Regulations'. Those provisions are narrower than the Directive, but that is inevitable given the nature of the sources of EC law. The 2006 Regulations are only implementing rights derived from Directives, not rights that derive from other sources of EC law. The limited terms of the 2006 Regulations reflect the nature of the law that they implement; they do not indicate a limit on the rights of residence that are lawful for the purpose of the Directive.

This explains:

• why paragraph 6 of Schedule 4 to the 2006 Regulations is inclusive, but not definitive of the rights of residence that may arise outside the scope of those Regulations;

• why rights that arise before 2 October 2000 may help to establish a permanent right of residence; and

• why regulation 21AA(4)(e) is drafted in terms of the Directive and not the 2006 Regulations – a claimant may have rights of residence that are wider than those that are the proper subject of those domestic Regulations.

The specific reason why the nature of the EEA legislation is significant concerns the position of jobseekers. Until Directive 2004/38, they had no express right to reside in EC law and they were not mentioned in the 2000 Regulations. However, in R v Immigration Appeal Tribunal, ex parte Antonissen (Case C-292/89) [1991] ECR 1-745, the European Court of Justice decided (at paragraphs 14 and 15 of its judgment) that the right of a jobseeker to reside in a host State was implicit both in what is now Article 39 of the EC Treaty and in Regulation 1612/68/EEC. Jobseekers are, therefore, an example of a category of person who have a right to reside that derives from EC law but is not contained in domestic legislation.

Consequently, a claimant's period of residence as a jobseeker prior to 30 April 2006, when the 2006 Regulations came into force, may be counted as part of legal residence for the purpose of the Directive, but not for the purpose of the 2000 Regulations.

Residence before 30 April 2006

The Secretary of State has not argued that only residence after Directive 2004/38 came into force can be taken into account to establish a right of permanent residence. I consider that it was correct not to put that argument. Legislation is not usually interpreted to have retrospective effect. But taking account of previous residence does not make the Directive or the 2006 Regulations retrospective. It does not change the claimant's rights in respect of any period before 30 April 2006. What it does is to confer a future right taking into account residence that occurred before that date.

Did the tribunal go wrong in law?

Yes. It made findings of fact that were not supported by the evidence. It found that the claimant 'has been lawfully resident in the UK from January 1999 as either a worker or a work seeker.' There is evidence from the claimant at page 19, which shows employments but gives no indication of her status as a workseeker. There is also evidence from the CAB at page 1J, but this is not consistent with the information provided by the claimant.

The tribunal did not explain how it made its findings and, in view of the importance of the precise dates of work and the nature of her activities when out of work, its explanation of its decision is not adequate.

Disposal

As the tribunal went wrong in law, I must set its decision aside. There must be further investigation into the facts in order to dispose of the case. The most efficient way for that investigation to be conducted is to remit the case to Ms Talbot. Neither party has any reason to doubt her competence and integrity and they can be confident that she will be able to decide the outstanding issues objectively and fairly. If she is not available, there must be a complete rehearing.

Signed on original
on 23 May 2008

Edward Jacobs
Commissioner