Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No. CPC/1492/2009

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge S M Lane

 

 

This decision is made under section 12(1) and (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

The decision of the tribunal heard on 2/2/09 under reference 040/08/01370 involved the making of an error of law. It is SET ASIDE and REMITTED to a freshly constituted First-tier Tribunal for rehearing.

 

 

REASONS FOR DECISION

 

 

1. The appellant brings this appeal from the First-tier Tribunal (Social Entitlement Chamber) decision with the permission of a district tribunal judge. The issue in the appeal is the proper interpretation and applicability of regulation 9 of the Immigration (European Economic Area) Regulations 2006. This regulation permits the Immigration (European Economic Area) Regulations 2006 Regulations to apply to a family member of a UK national who has worked in another EEA state by treating him as if he were an EEA national. The First-tier Tribunal decided that the effect of this regulation was limited to giving a family member accompanying a UK national returning from another EEA state in which he had worked only an initial right to reside in the UK for 3 months. This was an error of law. As a consequence of the tribunal’s view, it did not make findings of fact which would enable me to substitute a decision.

 

2. The appellant, a Greek national, came to the UK on 29/9/07. She has not worked while in the UK and claimed State Pension Credit on 26/8/2008 on the basis that she was a direct dependent relative in the ascending line, that is, a family member of her son-in-law for the purposes of Immigration (European Economic Area) Regulations 2006. Her claim was refused on the basis that she had no right to reside here and therefore could not be treated as present in Great Britain. Such presence is one of the conditions of entitlement to State Pension Credit under the State Pension Credit Act 2002 section 1(2) and State Pension Credit Regulations 2002, regulation 2(2). Her appeal to a First-tier Judge was dismissed.

 

3. While it is now clear in law that the appellant’s status as a dependent family member need not have existed prior to her arrival in the UK, I am left in doubt on the patchy evidence before me whether she has been, or is, dependent as claimed. In giving brief details of the appellant’s personal circumstances, I have tried to note aspects which raise questions which need to be investigated. The appellant was born on 23/12/43. She worked as a teacher in Kazakhstan for many years but says she came away with nothing when she returned to Greece in 1994. She remained there until 29/9/2007 when she came to Britain with her daughter (a Greek national, born in 1970) and son-in-law, a British citizen born in 1963. She claims that she was unable to work in Greece since her return in 1994 for health reasons and lack of available jobs, and says that she lived with her son-in-law and daughter, who supported her. The couple married in 2002 and have two young children (approximately 6 years old and 2 years old), whom the appellant looks after.

 

4. The state of the evidence is such that I cannot escape the question of whether the appellant was a dependent either in Greece or in the UK. Her credibility in relation to the former is relevant to her assertions of dependency in the latter. I note, for example, that although she says she was unable to work through ill health and poor job availability since she returned to Greece in 1994, she has not explained how she supported herself from that time until 2002 when her daughter and son-in-law married. In 1994, her daughter was only 24 and though now a gynaecologist, was probably newly qualified then and on limited means. The appellant must have supported herself somehow, but there is no evidence about this. She may have been in receipt of Greek incapacity benefit on the basis of her ill health or on some form of unemployment benefit. The former can be exported to the UK in some circumstance. In addition, she has not given satisfactory evidence of the dates during which and places at which she lived with the young couple, of the ownership of any properties they lived at or of any other property she might have retained. If she was able to support herself before the couple’s marriage, it is legitimate to ask why she was unable to do so thereafter. Regarding dependency in the UK, I note that her son-in-law sold his language school in Greece shortly before returning to the UK. He claimed Jobseeker’s Allowance more or less upon arrival, until June 2008. He then obtained work which lasted for a period of about 3 months until early October 2008 (according to a payslip and his representative’s reply to the Secretary of State’s submission). This leaves open the question of how the son-in-law managed to support an extra adult for the 9 months when the couple was only in receipt of benefits (Jobseeker's Allowance, Child Benefit and Child Tax Credit) and whether the appellant herself had a source of income which helped keep the family afloat. I do not know whether he declared the capital he received from the sale of the school on his Jobseeker's Allowance claim form, but he may have used some of this money to support his mother in law. That would provide an explanation, but it is something to be investigated.

 

The law

 

5. As relevant to this appeal, section 1(2) of the State Pension Credit Act 2002 provides that

 

Entitlement

 

1 - (1) A social security benefit to be known as state pension credit shall be payable in accordance with the following provisions of this Act.

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

(a) he is in Great Britain;

(b) he has attained the qualifying age; and

(c) ….

 

As relevant to this appeal, regulation 2(1) of the State Pension Credit Regulations 2002 as amended by the Social Security (Persons from Abroad) Amendment Regulations 2006 provides:

 

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 person is 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 an accession State worker requiring registration 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 regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004;

 

6. After removing the double negatives, the effect of these regulations is that, in order to establish presence in Great Britain for the purposes of entitlement to State Pension Credit, a person from abroad must show that he is, or is treated as, habitually resident here. To do this, he must show that he falls within one of the classes of regulation 2(4). A person who only falls within one of the classes of person in regulation 2(3) is treated as not habitually resident. These classes include jobseekers and family members of jobseekers.

 

7. The appellant has not claimed to fall within one of the classes within regulation 2(4) in her own right. Nor is it claimed that she can qualify through her daughter, who has not worked in the UK, though she has looked for work. She is, at most, a jobseeker and hence the appellant cannot show a right to reside through her, by virtue of regulation 2(3)(b)(ii).

 

8. It is only through her son-in-law, therefore, that the appellant might have been able to establish a right to reside giving her access to State Pension Credit. For the purposes of this case, the relevant right to reside is the extended right of residence for more than three months given to Union citizens who are workers and their family members under regulation 14(1) and (2) of the Immigration (European Economic Area) Regulations 2006 in conjunction with regulation 6. The counterpart of these regulations is Article 7(1)(a) and (d) of the Citizenship Directive (Directive 2004/38/EC).

 

9. The Regulations provide:

 

6. – (1) In these Regulations, ‘qualified person’ means a person who is an EEA national and in the United Kingdom as –

 

(b)   a worker;

 

 

14. – (1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.

 

(2) A family member of a qualified person residing in the UK under paragraph (1) … is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person ….

 

(3) [not relevant]

 

(4) A right to reside under this regulation is in addition to any right a person may have to reside in the United Kingdom under regulation 13 or 15.

 

 

The definitions of EEA national and EEA state in Regulation 2 of the Immigration (European Economic Area) Regulations are such that a United Kingdom national cannot be an EEA national

 

10. Two problems immediately faced the appellant: (i) her son-in-law was British (and therefore not, at least on the face of it, a qualified person for the purpose of regulations 2, 6 and 14); and (ii) was only a jobseeker on the evidence before the First-tier Tribunal. The first problem could be overcome if regulation 9 of the domestic Regulations applied to him. The latter problem appears to be solved by the further evidence on the submitted to the Upper Tribunal which shows that the son-in-law worked for the first four days in October 2008 (p268) and was therefore a worker at the date of claim and date of decision, 3/10/08.

 

The Construction of Regulation 9

 

11. It is in the interpretation of regulation 9 that the tribunal erred. The mistake may well have been generated by the Secretary of State’s submission which put forward the erroneous construction adopted by the First-tier Tribunal.

Family members of United Kingdom nationals

9. —(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national.

    (2) The conditions are that—

(a) the United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and

(b) if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom.

    (3) Where these Regulations apply to the family member of a United Kingdom national the United Kingdom national shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member. [italics added]

 

12. As a matter of plain English, ‘these Regulations’ refer to the collection of Regulations as a whole. That is why Regulations is (i) in the plural and (ii) capitalised. Where an individual regulation is concerned, it is referred to in the lower case singular. This is ordinary drafting practice. Regulation 9 is a single regulation with sub-paragraphs. These propositions can be tested, if they needed to be, by reference to any number of regulations in the Regulations. I have added the emphasis: regulation 1 (citation and commencement)–

 

1. - These Regulations may be cited as the Immigration (European Economic Area) Regulations 2006….

 

And regulation 2 –

 

2.- (1) In these Regulations - …

 

‘EEA decision’ means a decision under these Regulations …;

 

as opposed to

 

‘document certifying permanent residence’ means a document issued to an EEA national, in accordance with regulation 18…

 

And regulation 14(4)

 

(4) A right to reside under this regulation is in addition to any right a person may have to reside in the United Kingdom under regulation 13 or 15.

 

It is unnecessary to give further examples.

 

13. Both parties have provided detailed legal argument to show that the tribunal’s interpretation of the regulation was erroneous, and their legal reasons are also correct. Although there is a simple answer to the issue raised, I do not wish to do injustice to the care the parties have taken in analysing the regulation. Put simply, in relation to the rights of family members, a UK national is placed in as good position as an EEA national where he had exercised his right of free movement by working in another EU state. If this were not the case, a national of a member state might be deterred from returning to work in his country of origin, and thereby restricted in his right of free movement, if family members were not permitted to enter and reside with him the territory of his member state of origin under conditions at least equivalent to those granted them by Community law in the territory of another Member State – Surinder Singh (ECJ Case C-370/90).

 

14. On proper construction of the regulation, regulation 9(1) applies these Regulations as a whole to family members of UK nationals as if they were EEA nationals where they meet the conditions in regulation 9(2). It follows that, for those who meet the conditions, all of the rights which are given, including the right of extended residence given to workers and their family members under regulation 14, apply unless otherwise indicated in the Regulations.

 

15. It is therefore wrong to construe the overall effect of regulation 9 as the tribunal did as confined to granting a three month initial right of residence to the family member. All EEA nationals have an initial right of residence in their own right anyway, by virtue of regulation 13(1). It appears that regulation 9(3) is aimed at dispelling any doubt about an initial right to reside by a UK national’s non-EEA family member.

 

16. It follows that the appeal must be remitted to the First-tier Tribunal to make findings of fact which resolve the questions of dependency and any doubts the tribunal may still have about the son-in-law’s status as a worker. In doing so, the tribunal should keep in mind that dependency need not have existed in the family member’s country of origin or the member state in which they previously resided. It can arise in the host state – Pedro v Secretary of State for Work and Pensions [2009] EWCA Civ 1358 [67], Metock v Minister for Justice, Equality and Law Reform [2009] QB 318 [ECJ]; and that dependency is characterised by the material support to meet the essential needs of the family member, as provided by the Union national who has exercised his right to free movement – Pedro [63], Bigia v Entry Clearance Officer [2009] EWCA Civ 79. Emotional support is irrelevant.

 

17. If the tribunal were to come to the conclusion that there was no relevant dependency, it should go on to consider whether the claimant is an extended family member by virtue of regulation 8, Immigration (European Economic Area) Regulations 2006. For an extended family member, it is necessary to establish that the person falls within regulation 8(2)(a) – (c) and (as relevant to the facts as currently known in this appeal) that she would meet the requirements in the immigration rules for indefinite leave to enter or remain in the UK as a dependent relative. Before listing this appeal, a district tribunal judge may consider it worthwhile for the Secretary of State to address this in a further submission.

 

The appeal is accordingly remitted.

 

 

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 14 April 2010