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[2008] UKSSCSC CPC_3588_2006 (14 February 2008)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

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

I SET ASIDE the decision of the Fox Court appeal tribunal, held on 22 May 2006 under reference U/42/242/2005/11997, because it is erroneous in point of law.

I give the decision that the appeal tribunal should have given, without making fresh or further findings of fact.

My DECISION is that on his claim made on 14 June 2005 and refused on 19 August 2005, the claimant was not entitled to a state pension credit because he did not have a right to reside in the United Kingdom.

The issue

The claimant is a French national who came to the United Kingdom where his nephew was already living. The issue is whether the claimant has a right to reside by virtue of his Dutch nephew's residence here.

The facts

I take the facts relating to the claimant's personal history from the submission written for the tribunal by the claimant's representative and from the claimant's oral evidence to the tribunal.

The claimant was born 23 October 1932. He came from Somalia and worked in the diplomatic service for that country, based in France from 1970 to 1980 and then in Rome until 1990. He returned to Somalia, but left when civil war broke out and claimed asylum in France. He was given French nationality and awarded a pension there.

The claimant moved to live in the United Kingdom on 1 May 2005 and claimed a state pension credit on 14 June 2005. He said that he had brought all his possessions with him and wished to remain permanently. He had left France on account of the problems he had had with his wife, who remained there, and in order to be near his family in his old age. He has seven children, two of whom live in the United Kingdom. In total he has more than 30 relatives here. He lives with his niece, who is on income support, and is supported financially by his two nephews to the extent of £300 a month for food and his share of the bills. One nephew is Dutch and the other is British. Both work here and both were brought up by the claimant, but it is only the Dutch nephew who is relevant here, because he is the one who has exercised his freedom of movement under European law.

The Secretary of State refused the claim on 19 August 2005, deciding that the claimant did not have a right to reside. The claimant exercised his right of appeal. The tribunal allowed the appeal, decided that the claimant was entitled to state pension credit from the date of claim and found that he was habitually resident in the United Kingdom by the date of decision.

The course of the appeal to the Commissioner

This appeal was brought by the Secretary of State with my leave. On 18 December 2006, I decided to allow the appeal on grounds that I set out in a direction:

• The tribunal decided that the claimant was entitled to a state pension credit from the date of claim but decided that the claimant was habitually resident only from the date when the Secretary of State refused the claim. On its own reasoning, its decision was incomplete.

• The tribunal failed to apply correctly regulation 14 of the Immigration (European Economic Area) Regulations 2000 (SI No 2326).

• The tribunal applied regulation 10 wrongly without enquiring whether the claimant had an EEA family permit or a residence permit.

I then stayed the other issues to await the outcome of the appeal to the Court of Appeal in Abdirahman and Ullusow v Secretary of State for Work and Pensions, reported as R(IS) 8/07. When that decision was made, I directed an oral hearing.

That hearing took place on 12 February 2008. The Secretary of State was represented by Ms Jackson on behalf of the Solicitor to the Department for Work and Pensions and the claimant was represented by Mr Martin Williams of LASA. I am grateful to them both for their arguments at the hearing.

Shortly before the hearing, the decision of the Court of Appeal in KG (Sri Lanka) and AK (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 13 was reported in The Times. I obtained a transcript and arranged for it to be sent to the parties as it might affect the argument at the hearing. That prediction turned out to be correct. Mr Williams accepted that he could not succeed in view of this decision. The Court of Appeal decided that EC law was concerned with freedom of movement and that the movement had to be from the State from which the worker had come. In this case, the worker was the claimant's nephew who was Dutch and had come to the United Kingdom from the Netherlands.

However, Mr Williams told me that at least one of the parties wished to petition the House of Lords for permission to appeal, subject to obtaining funding. He asked me to stay the case pending the outcome of that application and, if it was successful, pending the decision of the House of Lords. Ms Jackson argued that the House of Lords would not be able to deal with the key issue that was fatal to the claimant's case.

I accept Ms Jackson's submission and will explain why in the course of showing how the tribunal went wrong in law.

How the tribunal went wrong in law - I

It is clear from the form of the tribunal's decision that it went wrong in law. The claimant claimed state pension credit on 14 June 2005. The tribunal's decision notice records that the claimant was entitled to state pension credit from that date. However, the full statement of the tribunal's decision records only that the claimant had established habitual residence by the date of the decision refusing the claim. This was not a case in which the claimant could establish habitual residence immediately on arrival. The tribunal failed to deal with the period between the date of claim and the date of decision. Its findings on the position after the later date did not support the decision it gave on entitlement from the date of claim.

Domestic legislation

I now need to set out the domestic legislation.

The State Pension Credit Act 2002 established state pension credit. Section 1(2) provides:

'(2) A claimant is entitled to state pension credit if-

(a) he is in Great Britain'.

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:

'(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'.

Regulation 2 of the State Pension Credit Regulations 2002 is made under the authority of that provision. In so far as relevant, it provides:

'(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.'

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 be present in Great Britain (section 1(2)). In addition, he must be habitually resident here (regulation 2(1)). And he can only be habitually resident if he has a right to reside (regulation 2(2)).

The tribunal decided that the claimant had a right to reside under the Immigration (European Economic Area) Regulations 2000. Paragraph 2 of the Explanatory Note explains that 'The Regulations implement the Directives set out in paragraph 4 below.' The Directives listed deal with freedom of movement and the right of residence.

Regulation 14(1) confers a right of residence on a 'qualified person'. That expression is defined by regulation 5. The claimant does not come within any head of the list in regulation 5(1)(a)-(h). In particular, he is neither a 'retired person' nor a 'self-sufficient person' as defined by regulation 3(1), because he does not have sufficient resources to avoid becoming a burden on the social assistance and social security systems of the United Kingdom. Nor does he come within regulation 5(4), because he is not a family member of a qualified person who has died.

Regulation 14(2) confers a right of residence on a 'family member' of a qualified person. That expression is defined, for someone in the claimant's circumstances, by regulation 6(4):

'(a) his spouse;

(b) descendants of his or his spouse who are under 21 or are their dependants;

(c) dependent relatives in his ascending line or that of his spouse.'

The claimant does not fit that definition. Accordingly, he does not have the right of residence under the Regulations.

How the tribunal went wrong in law - II

The tribunal failed to apply correctly the regulations I have just analysed. That was wrong in law.

How the tribunal went wrong in law - III

So, the case comes to this. Did the claimant have a right to reside by virtue of having a right to a family or residence permit?

The submission to the tribunal by the claimant's former representative relied on Directive 2004/38. This only came into force on 30 April 2006. That was after the date of the decision under appeal and section 12(8)(b) of the Social Security Act 1998 prevented the tribunal from taking it into account. This case is governed by the Immigration (European Economic Area) Regulations 2000.

Regulation 10 of those Regulations confers a power on the Secretary of State to issue an EEA family permit or a residence permit. (It also allows a residence document to be issued, but this is not applicable as the claimant is an EEA national – see the definition in regulation 2(1).) Regulation 10(4) sets out the conditions that must be satisfied for the issue of a permit:

'(4) The conditions are that the person-

(a) is dependent on the EEA national or his spouse;

(b) is living as part of the EEA national's household outside the United Kingdom; or

(c) was living as part of the EEA national's household before the EEA national came to the United Kingdom.'

This implements Article 10(2) of Council Regulation (EEC) No 1612/68:

'Member States shall facilitate the admission of any member of the family not coming with the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes.'

The issue arises whether those provisions confer rights of residence on the claimant or are merely procedural, giving only the right to the documentation. The Asylum and Immigration Tribunal decided that they were purely procedural in their effect in AP and FP (India) v Secretary of State for the Home Department [2007] UKAIT 00048. That decision was confirmed by the Tribunal in AK (Sri Lanka) v Secretary of State for the Home Department [2007] UKAIT 00074. Those decisions are not binding on me, but on basic principle they are of persuasive authority, having been decided by judges who are at a level equivalent to the Commissioners in the judicial hierarchy. Moreover, the Tribunal's decision in AK (Sri Lanka) was one of the decisions under appeal to the Court of Appeal in KG (Sri Lanka) and AK (Sri Lanka) v Secretary of State for the Home Department. This aspect of the decision was not challenged in the Court of Appeal. Lord Justice Buxton described the Tribunal's judgment as 'full and persuasive' and said that AK's counsel 'correctly confirmed that that contention was unfounded.'

Ms Jackson argued that, as the issue was conceded before the Court of Appeal, it could not be raised before the House of Lords and a stay would not, therefore, benefit the claimant. Mr Williams strove to find some issue with which the House of Lords might deal in a way favourable to the claimant. Having given the matter more thought, I accept Ms Jackson's argument.

I respectfully agree with the analysis, made by the Asylum and Immigration Tribunal in the two cases I have cited, that the rights under Article 10(2) are procedural only. It is clear that at least Lord Justice Buxton thought they were right. And, having been conceded in the Court of Appeal, the issue can hardly be raised on appeal to the House of Lords.

According to the Tribunal's analysis, the rights conferred by Regulation 1612/68 are procedural ones only. They give rise to rights to the appropriate documentation to reflect whatever right of residence a person has under domestic law. That documentation operates to ensure that the person's movements are not impeded and, therefore, that they do not impede the free movement of the worker involved. On that analysis, the decision of the European Court of Justice in Raulin v Minister van Onderwijs en Wetenschappen (Case C-357/89) [1992] ECR I-1027 is not in point. Mr Williams, in a written submission before the hearing, argued that a permit was merely recognition of a right, not a condition for that right. For that, he relied on a passage from the European Court's judgment:

'36. … the issue of a such a permit does not create the rights guaranteed by Community law and the lack of a permit cannot affect the exercise of those rights ….'

As that passage makes clear, the Court was concerned with a party's rights under Community law and decided that a permit was merely evidence of those rights. However, if the permit is concerned with rights under domestic law, the Court's reasoning does not apply. The only right that arises under EC law is the right to have the documents issued, not the right to reside. Whether the claimant has a right to reside is a matter for domestic law and no argument has been put that the claimant has a right to reside under domestic law.

I also accept Ms Jackson's argument that the allocation of a permit is a matter for the Secretary of State for the Home Department and not the Secretary of State for Work and Pensions. Any appeal against the refusal to issue a permit is a matter for the Asylum and Immigration Tribunal.

Mr Williams strove to persuade me that, as a result of a House of Lords decision in KG and AK, there might be factual issues on which a decision could be made favourably to the claimant in this case. However, those issues related to regulation 10 and, as I have decided that those rights are procedural only, it would not avail the claimant who has not sought to take advantage of any such rights by applying for a permit.

Disposal

I allow the appeal and give the decision that the tribunal should have given, which was to confirm the refusal of the claim on the ground that the claimant did not have a right to reside in the United Kingdom.

Signed on original
on 14 February 2008

Edward Jacobs
Commissioner