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UK Social Security and Child Support Commissioners' Decisions
You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2008] UKSSCSC CPC_2134_2007 (29 May 2008)
URL: http://www.bailii.org/uk/cases/UKSSCSC/2008/CPC_2134_2007.html
Cite as: [2008] UKSSCSC CPC_2134_2007
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[2008] UKSSCSC CPC_2134_2007 (29 May 2008)
- My decision is given under section 14 of the Social Security Act 1998:
- The claimant claimed state pension credit from 21 January 2006. The claim was refused on 30 October 2006 on the ground that she did not have a right to reside and was, therefore, to be treated as not being in Great Britain. She exercised her right of appeal, but the tribunal confirmed the Secretary of State's decision. Mr Commissioner Lloyd-Davies gave leave to appeal. When the parties had made their observations on the appeal, he transferred the case to me. I then raised a new issue with the parties: whether the claimant could rely on EC law when she and her daughter had not come to the United Kingdom in exercise of a right of free movement. The parties have responded and the claimant's solicitor has argued for the first time that the claimant has a permanent right to reside.
- The claimant is of Russian origin. Both she and her daughter are Lithuanian. Lithuania joined the EU on 1 May 2004.
- On 28 January 2000, the claimant arrived in the United Kingdom with her grandson (her daughter's son) and claimed asylum. That claim was refused and the claimant exercised her right of appeal, but this was abandoned when Lithuania joined the EU. It seems that she remained in the United Kingdom as citizen of the Union. As such her presence was lawful, but she did not necessarily have a right to reside in EC law and was not given a right to reside under domestic law.
- The claimant's daughter was already here, having arrived on 26 September 1999. She was given indefinite leave to remain on 20 January 2004; it was granted exceptionally and outside the Immigration Rules. She and her mother live in separate flats in the same building.
- The claimant's daughter worked from 10 December 2004. She told an officer of the Department that she worked at a restaurant earning £27.50 a week. She told her solicitor that this was for about eight hours a week. The work was not registered.
- The claimant told the tribunal that 'I do not receive any money from my daughter she has a family to support.' 'My daughter cannot support me it would not be fair for me to be an extra burden.'
- From November 2006, the claimant began to work as a cleaner, finding work through an agency as and when it was available. From the evidence available, it does not look as if that work is genuine and effective. However, I do not need to decide this because, as the work began after the Secretary of State had refused the claim for state pension credit, I cannot take it into account: section 12(8)(b) of the Social Security Act 1998.
- The State Pension Credit Act 2002 established state pension credit. Section 1(2) provides:
- Just reading that, any claimant who was present in Great Britain would be entitled to state pension credit. However, section 1(5) allows regulations to be made:
- As the claim for state pension credit was made before 30 April 2006, regulation 2 of the State Pension Credit Regulations 2002 applies. It is made under the authority of section 1(5). It provided:
- That is not easy to digest. It is worded in terms of treating a person as present or habitually resident in order to reflect the terms of the enabling provision in section 1(5)(a). Restating the law without the use of negatives it comes to this. In order to be entitled to state pension credit, the claimant must (i) be present in Great Britain (section 1(2)); (ii) be habitually resident here (regulation 2(1)); and (iii) have a right to reside here (regulation 2(2)).
- As the claim for state pension credit had not been decided by this date, the amended version of regulation 2 of the State Pension Credit Regulations 2002 applies thereafter. It provides:
- In order to understand the issues that arise in this case, it is important to understand the nature of EC law. It is a body of law that applies in the United Kingdom by virtue of the European Communities Act 1972. However, it is not simply integrated into domestic law and applied as if it were simply domestic law. It is a separate body of law with its own terms of reference. This is important, because it is not possible for someone to rely on EC law just because they happen to be in citizens of the Union and in the United Kingdom. There must be some connection with the EU.
- In Moser v Land Baden-Württemberg (Case 180/83) [1984] ECR 2539, Mr Moser was a German who was refused access to post-graduate training in order to become a teacher, because he was a member of the Communist Party. He argued that this was contrary to European law. On a reference, the European Court of Justice decided that EC law did not apply, because (paragraph 15) the issue that arose was 'wholly internal to a Member State, in other words there is no factor connecting them to any of the situations envisaged by Community law.' The Court has repeatedly confirmed this principle: see the cases cited by the Advocate General in R v Immigration Appeal Tribunal, ex parte Secretary of State for the Home Department (Case C-370/90) [1992] 3 All ER 798 at paragraph 4 on pages 811-812.
- The principle does not apply if there is some connection with an EC right. A connection is not limited to actual exercise of EC rights. Those rights must be effective and, in order to render them so, a connection includes any impediment or deterrence that undermines the effectiveness of those rights.
- Mr Moser argued that there was such an impediment, as his inability to qualify as a teacher would prevent him from being able to exercise his freedom of movement to take up work in another Member State. The Court rejected this as a 'purely hypothetical prospect' and insufficient (paragraph 18).
- However, in the Immigration Appeal Tribunal case, the Court found that there was a deterrence. The husband, who was Indian, had married a British national in the United Kingdom. They had moved to work in Germany and then return to the United Kingdom to open a business. Their return to the United Kingdom was in exercise of their domestic law rights, not EC rights. The issue arose whether the husband had a right to reside in the United Kingdom, which he would have under EC law as the spouse of a national of a Member State. The Court decided (paragraph 23) that the right of freedom of movement had to be fully effective and that a national of State A would be deterred from exercising the right of free movement to leave that State to work in State B if, on return to the home State, a spouse were not accorded the same right to reside as would be granted under EC law. Accordingly, the United Kingdom was required to give the husband that right.
- In this context, I can now explain why neither the claimant nor her daughter have a permanent right to reside, although they have both been in the United Kingdom for more than five years, and why the claimant's daughter is not a worker.
- Both the claimant and her daughter were present in the United Kingdom before Lithuania acceded to the EU and have remained here since. They had both been here for more than five years at the date of the claim. However, neither had, or indeed has, a permanent right of residence. That right is conferred by EC law and neither the claimant nor her daughter has exercised any EC right since Lithuania acceded to the EU. They came here before then and not in the exercise of any EC right. And since then they have not exercised an EC right.
- Even if I am wrong and the claimant did exercise an EC right by remaining her after accession on the basis of her citizenship of the Union, residence before accession still cannot be taken into account. That has been decided by the Asylum and Immigration Tribunal in GN (EEA Regulations: Five years' residence) Hungary [2007] UKAIT 00073, which was analysed by Mr Commissioner Rowland in CIS/1794/2007, especially at paragraph 25.
- Nor can the claimant show a right to reside as a dependent relative of her daughter as a worker. It is doubtful whether the claimant is dependent on her daughter: see my analysis in CIS/2100/2007. She is not financially dependent on her and the evidence did not show any other significant material reliance, apart from eating meals together. The Secretary of State has argued that this issue should be further investigated at a rehearing. There is certainly an issue of how the claimant was able to support herself financially and some suggestion that, perhaps, her daughter is reluctant to admit any involvement in case this results in her having to assume long-term financial responsibility for her mother. I would have agreed to a rehearing, had there not been other difficulties with the argument that the claimant was a dependent relative.
- Another difficult is whether the work that her daughter was doing was genuine and effective rather than marginal and ancillary. However, the ground on which I rely is that her daughter is not a worker, because she has not exercised any right of free movement in order to take up work in the United Kingdom. She came here in the exercise of other rights and has taken up work here outside the context of EC law. She has not relied on her citizenship of the Union in order to remain or work here; she has done that under her grant of indefinite leave to remain. She is not, for the purpose of EC law, a worker. (She does, though, have a right to reside on the basis of her leave to remain and that entitles her to income support, which she is receiving.)
- I cannot see that the position I have set out in the previous two paragraphs represents an impediment or deterrence to the exercise of any EC right. The position in which the claimant and her daughter are placed, on my analysis, arises because of actions they took before accession and, therefore, outside the scope of EC law.
- The claimant's solicitor and the Secretary of State's representative have both argued that Moser is distinguishable on the ground that the claimant here has moved to the United Kingdom from a country that later joined the EU. I accept that is a factual difference between that case and this. However, it is not a distinction, because the movement occurred outside the scope and context of EC law.
- The representatives have also both argued that, unlike Moser, this is not an entirely internal case. In a factual sense, that is correct. However, the connection that is present on the fact is not a connection in the exercise of any EC right.
- The claimant's solicitor has argued that the claimant is entitled to equal treatment. I accept that, but cannot see any respect in which she is not being given equal treatment to other in a comparable position. If she has a problem, it is under domestic immigration, which can be regularised by seeking leave to remain. That is outside my jurisdiction.
- The claimant relied on the decision of the tribunal, taken by the then President of the appeal tribunal. The tribunal in this case distinguished it. The appeal to the Commissioner is about to be decided by Mr Commissioner Rowland. In those circumstances, it is sufficient for me to say that I do not agree with the analysis of the President.
- I dismiss the appeal.
The decision of the Basildon appeal tribunal under reference 919/07/00226, held on 12 April 2007, is not erroneous in point of law.
History and background
State pension credit legislation
'(2) A claimant is entitled to state pension credit if-
(a) he is in Great Britain'.
'(5) Regulations may make provision for the purposes of this Act-
(a) as to circumstances in which a person is to be treated as being or not being in Great Britain'.
Before 30 April 2006
'(1) Subject to paragraph (2), a person is to be treated as not in Great Britain if he is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, but for this purpose no person is to be treated as not habitually resident in the United Kingdom who is-
(a) a worker for the purpose of Council Regulation (EEC) No. 1612/68 or (EEC) No. 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No. 68/360/EEC or No. 73/148/EEC or a person who is an accession State worker requiring registration who is treated as a worker for the purpose of the definition of "qualified person" in regulation 5(1) of the Immigration (European Economic Area) Regulations 2000 pursuant to regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004;
…
(2) For the purposes of treating a person as not in Great Britain in paragraph (1), no person shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland if he does not have a right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.'
From 30 April 2006
'Persons not in Great Britain
2.—(1) A person is to be treated as not in Great Britain if, subject to the following provisions of this regulation, he is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.
(2) No person shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless he has a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland other than a right to reside which falls within paragraph (3).
(3) A right to reside falls within this paragraph if it is one which exists by virtue of, or in accordance with, one or more of the following—
(a) regulation 13 of the Immigration (European Economic Area) Regulations 2006;
(b) regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the person is—
(i) a jobseeker for the purpose of the definition of "qualified person" in regulation 6(1) of those Regulations, or
(ii) a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker;
(c) Article 6 of Council Directive No. 2004/38/EC; or
(d) Article 39 of the Treaty establishing the European Community (in a case where the claimant is a person seeking work in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland).
(4) A person is not to be treated as not in Great Britain if he is—
(a) a worker for the purposes of Council Directive No. 2004/38/EC;
(b) a self-employed person for the purposes of that Directive;
(c) a person who retains a status referred to in sub-paragraph (a) or (b) pursuant to Article 7(3) of that Directive;
(d) a person who is a family member of a person referred to in sub-paragraph (a), (b) or (c) within the meaning of Article 2 of that Directive;
(e) a person who has a right to reside permanently in the United Kingdom by virtue of Article 17 of that Directive;
(f) a person who is treated as a worker for the purpose of the definition of "qualified person" in regulation 6(1) of the Immigration (European Economic Area) Regulations 2006 pursuant to—
(i) regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004 (application of the 2006 Regulations in relation to a national of the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia or the Slovak Republic who is an "accession State worker requiring registration"), or
(ii) regulation 6 of the Accession (Immigration and Worker Authorisation) Regulations 2006 (right of residence of a Bulgarian or Romanian who is an "accession State national subject to worker authorisation");
(g) a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967;
(h) a person who has exceptional leave to enter or remain in the United Kingdom granted outside the rules made under section 3(2) of the Immigration Act 1971;
(hh) a person who has humanitarian protection granted under those rules;
(i) a person who is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act and who is in the United Kingdom as a result of his deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom; or
(j) a person in Great Britain who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption.'
The nature of EC law
Analysis
CPC/1072/2006
Disposal
| Signed on original on 29 May 2008 |
Edward Jacobs Commissioner |