Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                            Case No.  CPC/1013/2008

ADMINISTRATIVE APPEALS CHAMBER

Before:                  Upper Tribunal Judge Rowland

Attendances:         The Appellant was represented by Mr Denis Edwards of counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions

The Respondent neither appeared nor was represented

Decision:               I dismiss the Secretary of State’s appeal. 

REASONS FOR DECISION

1.       The claimant claimed state pension credit on 1 September 2006.  On 1 November 2006, the Secretary of State disallowed the claim on the ground that the claimant did not have a right of residence in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland and therefore could not be treated as habitually resident in the United Kingdom (see regulation 2 of the State Pension Credit Regulations 2002 (S.I. 2002/1792, as amended)).  The claimant appealed.  On 18 September 2007, the Stockport appeal tribunal allowed his appeal.  The Secretary of State now appeals against the appeal tribunal’s decision with the leave of the tribunal chairman.

2.       At the time of the Secretary of State’s decision, the claimant was aged 62.  The appeal tribunal found that he was a Spanish citizen who had come to England in 1964, when aged about 20.  He had an English wife, from whom he was separated, and children and grandchildren in England, which he regarded as his home.  However, in 1997, he had returned to Spain to care for his mother, who it appears was suffering from Alzheimer’s disease, and he had stayed there until 2006 when his mother went to live in a nursing home.  His claim for state pension credit was made following his return to the United Kingdom on 14 August 2006 and advice from a jobcentre that he should apply for that benefit rather than jobseeker’s allowance.

3.       The tribunal found that the claimant had an extended right of residence in the United Kingdom under regulation 14 of the Immigration (European Economic Area) Regulations 2006 (S.I. 2006/1003) because he was a dependant of his son, who was in employment and held both British and Spanish nationality and with whom he had gone to live on a rent-free basis.

4.       The Secretary of State appeals primarily on the ground that the tribunal failed adequately to investigate whether the claimant’s son did in fact hold Spanish nationality.  However, Mr Edwards has also raised the question whether the claimant could acquire a right of residence as a dependant of a worker who has not in fact exercised the right of free movement between Member States because he has always resided in the United Kingdom.  There is a further question as to whether the claimant has a right of residence in his own right in consequence of his long previous period of residence in the United Kingdom.

5.       The Secretary of State accepts – or perhaps asserts – that, had he satisfied the ordinary conditions of being available for work, etc., the claimant could have successfully claimed jobseeker’s allowance, as he tried to do.  Jobseeker’s allowance is not payable to people over pensionable age (see section 1(2)(h) of the Jobseekers Act 2005) but the claimant was under pensionable age, which is 65 for a man and 60 for a woman, and, although income-based jobseeker’s allowance is not payable to those entitled to state pension credit (see section 3(1)(b) of the 2005 Act), if the claimant had had a right of residence only by virtue of being a jobseeker, he would not have been entitled to state pension credit (see regulation 2(2) and (3)(b) of the 2002 Regulations).  (Whether the discrimination against women inherent in there being unequal pensionable ages for men and women is lawful in the light of Council Directive 79/7/EEC as regards income-based jobseeker’s allowance in a case where a woman aged between 60 and 65 is denied state pension credit because she only has a right of residence as a workseeker seems to me to be doubtful, but the issue does not arise in this case because the claimant is a man.)  It is therefore an unattractive feature of this appeal that, if the Secretary of State is right as to the law, the claimant appears to be without benefit only because he was misadvised by the jobcentre.  I hope that by now jobcentres have been instructed that claimants should not be advised to claim other income-based benefits instead of jobseeker’s allowance without first being asked about their nationality and immigration status.

6.       The Secretary of State also now appears to accept that the claimant’s son could hold Spanish nationality as well as British nationality, at least for the purposes of this case.  The issue has arisen because the claimant explained to the appeal tribunal that he did not apply for British nationality while he was living in England because he did not wish to lose his Spanish nationality, which he understood would be the consequence as a matter of Spanish law.  The Secretary of State’s representative, not unreasonably, argued that if the claimant would have lost his Spanish nationality upon acquiring British nationality, his son could not hold both nationalities either.  The tribunal accepted that the claimant’s son did hold both nationalities because it accepted the claimant’s evidence to that effect and it regarded any prohibition in Spanish law against the holding of both Spanish and British nationality as irrelevant given that there is no such prohibition in British law.

7.       There seems to be no doubt that the claimant’s son acquired British citizenship when he was born because he is the son of a British citizen and was born in the United Kingdom.  He will have retained that citizenship unless it has been renounced, as to which there is no evidence.  As a matter of United Kingdom law, British citizenship is not affected by the acquisition of citizenship of another country.  Nor does holding another nationality prevent a person from acquiring or reacquiring British nationality.

8.       I have not been provided with any opinion of a Spanish lawyer as to how Spanish nationality may be acquired or lost but the Secretary of State has helpfully made some informal enquiries.  It appears from the Secretary of State’s researches that Spain does not formally allow dual nationality but that there is no duty on a Spanish citizen to inform the Spanish authorities that he or she has acquired British nationality and it also appears that Spain would recognise British nationality acquired while Spanish nationality was also held.  That may suggest that the acquisition of British nationality by a person already a Spanish national does not automatically cause the Spanish nationality to lapse as a matter of Spanish law.  In fact, in the present case, it appears that the claimant’s son acquired Spanish nationality only in 1993.  I am told by the Secretary of State that applying for Spanish nationality involves the applicant swearing that he has renounced any other nationality.  The claimant denies that his son acted other than honestly but, in any event, there is no evidence that a failure in fact to renounce any other nationality invalidates the acquisition of Spanish nationality.  Hence the Secretary of State’s acceptance that “[i]t would appear … that it would be possible in practical terms for [the claimant’s son] to hold both Spanish and British nationality.”  The claimant has provided copies of documents that suggest that the Spanish Consulate-General in Manchester has recognised his son as holding Spanish nationality.  For the purposes of this decision, I accept that that is so.  There is therefore no need for me to consider whether, in the absence of a request by the Secretary of State for an adjournment to obtain expert evidence, the appeal tribunal erred in not investigating the question of the claimant’s son’s nationality further.

8.       The Secretary of State also now accepts that the claimant was in fact dependent on his son at the material time and that he would have had a right of residence under regulation 14(2) of the 2006 Regulations as a “family member” within regulation 7(1)(c) of a “qualified person” or “an EEA national with a permanent right of residence” had his son been a migrant worker with Spanish nationality who had moved from Spain to England in order to find, or take up, employment.

9.       However, the Secretary of State submits that even if the claimant’s son held Spanish nationality at the material time, he was not a “qualified person” because he was not a “worker” within the meaning of the Regulations, as he had not exercised the right to move to between EU States but had always worked in the United Kingdom, and he was not “an EEA national with a permanent right of residence” because he had not acquired a right of permanent residence under European Community law as he had always resided in the United Kingdom by virtue of being a British citizen.

10.     The Secretary of State refers me to the decision of the Court of Appeal in McCarthy v Secretary of State for the Home Department [2008] EWCA Civ 641, which is, of course, binding on me.  In that case, a woman holding both British and Irish nationality who had always lived in the United Kingdom failed to obtain a residence card under the 2006 Regulations, which she was seeking because her husband, who was not an EEA national, would then become entitled to a residence permit.  The Court of Appeal held that she had not acquired a right of residence under the 2006 Regulations by virtue of her length of residence in the United Kingdom, which was lawful only under United Kingdom law.  Pill LJ, with whom Arden and Wilson LJJ agreed, referred to Directive 2004/38/EC, which the 2006 Regulations implement, and said –

“31.    …  The Directive creates and regulates rights of movement and residence for Union citizens. The lawful residence contemplated in article 16 is residence which complies with community law requirements specified in the Directive and does not cover residence lawful under domestic law by reason of United Kingdom nationality. Article 3 provides in terms that the Directive applies to Union citizens who reside in a Member State ‘other than that of which they are a national’. The expression ‘resided legally’ in article 16 should, in my view, be read consistently with, and in the sense, of preamble 17 of the Directive, that is residence ‘in compliance with the conditions laid down in this Directive’. The repeated use in the Directive of the expression ‘host Member State’ supports that conclusion. It indicates rights to be enjoyed in Member States other than that of nationality; the word ‘host’ suggests that the Union citizen is a ‘guest’, an inappropriate expression for persons in the state of their own nationality.

32.     I do not consider that the approach to lawful residence adopted in other contexts, and for other purposes, assists with the construction of the expression ‘resided legally’ in the Directive. The identification of those entitled to protection against discrimination under the Treaty, as Union citizens, does not throw light on the construction of ‘resided legally’ for present purposes. The appellant is not entitled to bypass the requirements in the Directive by relying on a residence lawful under United Kingdom law. Thus I conclude that a United Kingdom citizen resident in the United Kingdom cannot, by virtue of also having Irish nationality, claim a permit which may be granted by virtue of the Directive.”

11.     The present case is distinguishable from McCarthy, because Mrs McCarthy had not worked in the United Kingdom and therefore could not claim that her residence had been lawful under Community law as well as domestic law, whereas the claimant’s son in this case has worked in the United Kingdom.  The Secretary of State submits that this distinction does not make a difference.

12.     By virtue of regulations 6(1)(b) and 14(1) of the 2006 Regulations, a “worker” who is an “EEA national” has a right of residence in the United Kingdom.  A “worker” is defined by regulation 4(1)(a) as “a worker within the meaning of Article 39 of the Treaty establishing the European Community”.  Article 39 contains no definition; it merely requires that freedom of movement for workers shall be secured.  I do not consider that one can read regulation 4(1)(a) as confining the term “worker” to those exercising such freedom of movement both because that is not what it says – it merely requires that “worker” be given the same community law meaning as it has for the purposes of Article 39 – and because to do so would be inconsistent with the Directive that the Regulations implement.  There is no definition of “worker” in the Directive and Article 7(1)(a) provides simply that –

“All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they –

(a) are workers or self-employed persons in the host Member State”.

13.     Moreover, in McCarthy, Pill LJ continued –

“33.    Had the appellants succeeded on the first point, I would not have found against her on the basis that she has not ‘moved’ to the United Kingdom but has always resided here. If the first obstacle, which I regard as insurmountable, could be overcome, the appellant could take advantage of the Directive as a Union citizen who ‘resides’ in the United Kingdom (article 3). If the United Kingdom can, in the circumstances, be regarded as a ‘host Member State’, article 2(3), which refers to 'move' but not to 'reside', should be read with article 3(1), which refers to both, as does preamble (1). The definition covers a Union citizen who has always resided here. (See also Chen v Secretary of State for the Home Department [2005] QB 325, though Chen does not question the requirement to meet conditions under the Directive if its benefits are to be obtained). On the second issue, I disagree with the Tribunal's finding, at paragraph 29, (though it may have been no more than an additional reason for the finding on the first issue) that the Directive invariably imposes a requirement that there is movement from one country to another and that the movement required excludes the appellant".

14.     Therefore, if the claimant’s son held only Spanish nationality, I have no doubt that he would have had a right of residence in the United Kingdom under both the Directive and the 2006 Regulations, notwithstanding that, as the appeal tribunal believed, he had always resided in the United Kingdom.  (There is now some evidence that the claimant’s son actually lived and worked in Spain for three years but that was not known to the appeal tribunal.)

15.     However, the Secretary of State submits that the claimant’s son does not have a right of residence under the Directive because he also holds British nationality.  He refers to Article 3(1), which provides –

“This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national and to their family members as defined in point 2 of Article 2 who accompany or join them.”

The words that I have emphasised were also stressed in McCarthy but the dilemma that arises in this case did not arise in that case where the claimant could not point to any possible right acquired under Community law through her Irish nationality.  Does a Union citizen who acquires additionally the nationality of the Member State where he or she is living lose the rights that he or she formerly had under the Directive? It might be thought that that would discourage the “integration into the society of the host Member State” regarded as important in preamble (18) but there are, perhaps, other considerations.  In any event, the Directive does not expressly address the problems thrown up by dual nationality.

16.     However, it seems to me that the 2006 Regulations do provide an answer.  The structure of those Regulations is very different from that of the Directive.  There is no general provision disapplying the Regulations in the case of those holding British nationality.  Instead, the Regulations apply to those who hold a nationality other than British and there is no indication that holding British nationality as well means that they do not apply.  An “EEA national” is defined in regulation 2(1) as “a national of an EEA State” and an “EEA State” is defined as including “a member state, other than the United Kingdom”.  On a literal construction of the Regulations, a Spanish national is therefore an EEA national to whom regulation 6 applies, even if he or she also holds British nationality.  The Regulations may therefore arguably confer rights not conferred by the Directive but, if they do so, dealing with the anomalies that might otherwise arises in cases of dual nationality appears to be well within the regulation-making powers conferred by regulation 2(2(b) of the European Communities Act 1972 under which the Regulations were made and I therefore see no reason not to give the Regulations a literal construction.

17.     Thus, I am satisfied that the claimant’s son did have a right of residence under the 2006 Regulations when the claimant arrived in England in 2006 and that the claimant had a right of residence as a family member of his son at the time the Secretary of State made his decision.  He was therefore potentially entitled to state pension credit.

18.     This makes it unnecessary for me to deal with the question whether the claimant might have had a right of residence in his own right at the material time.  Suffice it to say that, given that the Directive contemplates a person who has acquired a right of permanent residence losing it after two years’ absence (see Article 16(4)), it seems to me to be hard to see how there can be any general principle of Community law that guaranteed the claimant a right of residence in the United Kingdom in his own right on the facts of this case.

19.     However, it does not follow from my decision that the claimant has remained a family member of his son until now.  The Secretary of State has accepted that the claimant was supported by his son while he was living with him but there will arise the question whether the claimant was still a family member when he moved into his own accommodation, as appears to have happened.  It is partly because I wished to be able to say something useful about that period that I have delayed making this decision for longer than I should have done.  In the end, nothing that has been submitted to me in other cases has proved helpful so far as this case is concerned.  I very much regret the delay and apologise for it.

20.     I should also point out that questions of foreign law are questions of fact and that it remains open to the Secretary of State to investigate the claimant’s son’s nationality further and to supersede my decision – or perhaps technically the decision of the appeal tribunal – on the ground that it was based on ignorance of, or a mistake as to, a material fact, if it transpires that, under Spanish law, the fact that the claimant’s son held British nationality made it impossible for him to acquire Spanish nationality that was valid.  However, in view of the advice given to the claimant about jobseeker’s allowance, I do not encourage him to do so. 

Mark Rowland

27 November 2009