Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CIS/828/2008

ADMINISTRATIVE APPEALS CHAMBER

Before: UPPER TRIBUNAL JUDGE ROWLAND

Attendances:

For the Appellant: 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:  The Secretary of State’s appeal is allowed.  The decision of the Birmingham appeal tribunal dated 9 October 2007 is set aside and the case is remitted to the First-tier Tribunal (Social Entitlement Chamber) for redetermination.  However, before the case is listed, the Secretary of State is asked to make enquiries of the claimant with a view either to revising the decision of 14 March 2007 in the claimant’s favour or else to making a written submission to the First-tier Tribunal explaining why it is not appropriate to do so.

REASONS FOR DECISION

1. Insofar as they are known, the facts of this case are not in dispute.  The claimant is a Swiss national.  She came to the United Kingdom in 1988, aged 19.  She married a British citizen considerably older than herself and they had a daughter, born on 21 September 1993, who is also a British citizen.  Sadly, on 18 June 1994, her husband died of cancer.  She subsequently went through a further ceremony of marriage on 24 July 1999 but I am told that she separated two months later and the marriage was annulled on 16 May 2001 on the ground that she lacked capacity.  It appears that she has a history of severe depression.  Before her husband’s death, she had been caring for him for some time.  Afterwards, she cared for her father-in-law until he died in 2001.  She appears to have claimed income support as a single parent.  At some time, she had part-time work as an occasional dinner lady in a school.  I think that was only for a matter of months.  From late 2003 to 30 September 2005, she was employed as a teaching assistant at her daughter’s school.

2. She then claimed, and was awarded, income support from 1 October 2005 to 12 December 2006.  It is now clear that she had not been entitled to income support immediately before 1 October 2005 and that the award from that date was made without the Secretary of State addressing the question whether the claimant had a right of residence in the United Kingdom.

3. On 13 December 2006, the claimant and her 13 year-old daughter, who had her school’s permission to be absent, travelled to Switzerland to visit the claimant’s mother, who was terminally ill.  They returned to the United Kingdom on 11 January 2007.  On 19 January 2007, the Secretary of State for Work and Pensions received a new claim for income support.  It would in any event have been effective from 16 January 2007, when the claimant requested the claim form, but she asked for the award to be backdated to 13 December 2007.

4. Ordinarily, her claim, including the claim for the period while she was away, would have been successful, because she had been out of the United Kingdom for just under 28 days when the days of departure and arrival are not counted.  However, the fact that she had been out of the United Kingdom prompted the Secretary of State to consider whether she had a right to reside in the United Kingdom.  On 14 March 2007, he decided that she did not and, as she also did not have a right to reside in the Channel Islands, the Isle of Man or the Republic of Ireland, he decided that she could not be treated as habitually resident in the United Kingdom and so she was not entitled to income support (see regulation 21AA of the Income Support (General) Regulations 1987 (S.I. 1987/1967, as amended)).  But for her having no right of residence, the Secretary of State would have found the claimant to have been habitually resident in the United Kingdom despite her brief absence.

5. On 3 May 2007, the claimant and her daughter moved.  The claimant was by then looking for work and I think she claimed jobseeker’s allowance.  In any event, the period in issue in this case seems to be limited to a period up to that date.

6. Before she moved, the claimant had appealed against the decision of 14 March 2007.  She did not attend the hearing before the appeal tribunal on 9 October 2007.  Nonetheless, the appeal tribunal allowed her appeal on the ground that she had a right of residence under regulation 14(3) of the Immigration (European Economic Area) Regulations 2006 (S.I. 2006/1003) (although it referred to those Regulations by a different name) as a “family member who has retained the right of residence” and also, relying on Baumbast v. Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091, because she was the sole carer of her daughter who was in education.  The Secretary of State now appeals against the appeal tribunal’s decision with the permission of an appeal tribunal chairman.

7. The Secretary of State submits that the claimant did not have a right to reside in the United Kingdom under the 2006 Regulations or for any other reason.  It is implicit in the Secretary of State’s submissions – and Mr Edwards made it explicit – that the claimant ought not to have been awarded income support from 1 October 2005 either, since the predecessor of the 2006 Regulations was in no more generous terms.  If he is right, that decision could be revised by the Secretary of State, although I very much doubt that there would be any question of the overpayment being recovered from the claimant, which may be why no revision decision has actually been issued.  If he is wrong, the claimant remains entitled to income support from at least 30 April 2006 and was also entitled right through from the time payment was suspended in December 2006 to 3 May 2007.

8. There can be no doubt that the appeal tribunal erred in law in the way in which it relied on the 2006 Regulations in support of its decision.  I am not sure whether the appeal tribunal failed to realise that the term “family member who has retained the right of residence” is a term of art defined in regulation 10, or whether it simply misconstrued regulation 10.  It seems entirely possible that it was the former but, in any event, the claimant plainly was not a “family member who has retained a right of residence” within regulation 10 and so it is plain she had no right of residence under regulation 14(3).  Regulation 10 is concerned to protect the position of family members of a “qualified person” who has died or whose marriage has been terminated.  However, regulation 6 defines “qualified person” so that only an “EEA national” may be a “qualified person” and regulation 2(1) defines “EEA national” as “a national of an EEA State” and then defines “EEA State” in such a way that it includes Switzerland but excludes the United Kingdom.  Accordingly, as the claimant’s husband was a British citizen, he was not a “qualified person” and so she was not a “family member who has retained the right of residence”.  Moreover, even if the claimant’s husband, or the man with whom she subsequently went through a ceremony of marriage, were a “qualified person” she would not satisfy the conditions of any of paragraphs (2), (3), (4) or (5) of regulation 10.

9. For the sake of completeness, I should add that I am satisfied that regulations 10 and 14(3) of the 2006 Regulations adequately give effect to Article 12 of Directive 2004/38/EC.  Although the latter provision is concerned with the “[r]etention of the right of residence by family members in the event of death or departure of the Union citizen” and “Union citizen” is defined in Article 2 as “any person having the nationality of a member State”, Article 3 makes it clear that the “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” so that it does not provide for the retention of the right of residence by family members of a citizen of the host Member State.  There is therefore no separate argument under Article 12 of the Directive that is available to the claimant.

10. The First-tier Tribunal also relied upon Baumbast v. Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091.  That was a decision of the European Court of Justice under a predecessor of Directive 2004/38/EC.  The new Directive codifies the effect of the specific decision in that case in Article 12(3) but the wider significance of the case is the acceptance by the Court that directives of this kind are not a complete code and that what was Article 18 of the Treaty of the European Community, guaranteeing the rights of free movement that flow from citizenship of the European Union, could be relied on directly where they made inadequate provision.  In R(IS) 4/09, I held that Baumbast may be relied upon where there is a lacuna in a directive.  I do not regard that approach as being different in practice from that taken in CPC/3764/2007, to which the Secretary of State referred in his written submissions in this case.  Indeed, in Kaczmarek v Secretary of State for Work and Pensions [2008] EWCA Civ 1310, reported as R(IS) 5/09, the Court of Appeal referred to the “lacuna-filling” approach in Baumbast, having said that the question that must be answered is: “Is it disproportionate to deny a right of residence to a person in the position of the appellant?”.

11. However, I accept Mr Edwards’ submission on behalf of the Secretary of State that there is no lacuna here that may be filled by applying European Union law.  Firstly, it must be noted that the Directive carefully avoids giving rights to citizens solely on the basis that they are former dependents of a national of the host Member State.  That is regarded as a matter of domestic law for that Member State.  Secondly, the claimant could have obtained a right of residence under European Union law simply by looking for work, which she later did.  This is not a case where, if the claimant had no other right of residence, her only way of gaining access to social assistance was to leave the country.  It is unnecessary for me to consider what the position would have been had she been incapable of work.  As I understand it, the claimant was concerned that she needed properly to care for her daughter.  However, it was not necessary for her to be looking for what would ordinarily be regarded as full-time work.  Caring responsibilities may be taken into account in considering a person’s availability for work and entitlement to jobseeker’s allowance may be secured in appropriate circumstances even though a person restricts the extent of the employment being sought to 16 hours a week (regulation 13(4) of the Jobseeker’s Allowance Regulations 1996 (SI 1996/207)).  From the point of view of European Union law, if the claimant had no other right of residence, the requirement that she seek such work seems to me to be proportionate.  The First-tier Tribunal therefore also erred in law in relying upon Baumbast.

12. It appears at first sight that the claimant finds herself worse off than she would have been had her late husband been a national of another Member State because she would then have had a right of residence and been entitled to income support without having actively to seek employment.  This, however, is only true if domestic law does not give her such a right.  This is not a matter of social security law but a matter of immigration law.  A person who is not assisted by the 2006 Regulations may nonetheless apply for leave to remain in the United Kingdom under section 3 of the Immigration Act 1971.  Such leave amounts to a grant of a right of residence.  Having regard to paragraph 279B of the Immigration Rules, it seems likely that, had she applied, the claimant would have been granted indefinite leave to remain on the ground of long residence in the United Kingdom, quite apart from the arguments she would have had that she should not be treated less favourably than she would have been had her late husband been, say, German and that her remaining in the United Kingdom was necessary to enable her daughter, who was a British citizen, to do so (see AB (Jamaica) v Secretary of State for the Home Department [2007] EWCA Civ 1302; [2008] 1 WLR 1893 for an analogous case on this last point).

13. The claimant, though, did not make such an application.  I have commented in R(IS) 6/08 and Secretary of State for Work and Pensions v EM [2009] UKUT 44 (AAC) on this sort of situation.  In practical terms, the current state of the law remains thoroughly unsatisfactory.  It is understandable that the claimant in this case should not have made an application to the immigration authorities before she made her claim for income support in January 2007 because, until then, she had no reason to suppose that such an application might lead to any practical advantage being conferred on her.  If entitlement to benefits is to be dependent on the claimant having a right of residence, it seems to me there ought to be a provision that allows an immigration decision to be made retrospective so as to be effective from the date from which a related benefit claim is effective.  Alternatively, of course, legislation could be framed so that the social security authorities could find a right of residence in more cases without having to rely on a decision of the immigration authorities.

14. However, as the legislation stands, unless European Union law or the 2006 Regulations conferred some other right, the claimant had no subsisting right of residence and had to apply to the immigration authorities in order to obtain one, which she did not do until after the period in issue had expired.  Any disadvantage she suffered under domestic law because her late husband was a British citizen rather than a citizen of another Member State was therefore essentially a procedural one.  If the claimant did not actually have a right of residence under domestic law, she could probably have obtained one by making an application to the immigration authorities.

15. Unsatisfactory as the position may be, this procedural disadvantage is not something in respect of which I can provide any remedy.  Hearing an appeal concerned with entitlement to income support, I simply have no power to confer a right of residence in order to nullify the procedural disadvantage suffered by the claimant by comparison with widows of citizens of other Member States.

16. What I have done is delay the determination of this case in the hope that the claimant might be able to derive some assistance from cases referred to the European Court of Justice so that I can find her to have a right of residence under European Union law.   Most of the cases do not assist her.

17. Firstly, she is not assisted by London Borough of Harrow v Ibrahim (Case C-310/08) or Teixeira v London Borough of Lambeth (Case C-480/08) and cannot claim a right of residence under European Union law as the carer of her daughter who is in education in the United Kingdom because her daughter’s right to education arises from her British citizenship and not solely from Regulation (EEC) No. 1612/68.

18. Secondly, she is not assisted by Zambrano v Office national de l’emploi (Case C-34/09) or McCarthy v Secretary of State for the Home Department (Case C-434/09).  The point in Zambrano – emphasised in McCarthy at paragraph 50 and in Dereci v Bundesministerium für Inneres (Case C-256/11) at paragraph 66 – is that the parents were not European Union citizens and the children, who were Belgian citizens, would have been forced to leave the European Union altogether if his parents had been refused rights of residence.  Here, the claimant is a Swiss national claiming rights only by virtue of the links Switzerland has with the European Union and her daughter would have been able to accompany her mother to Switzerland had the claimant been obliged to leave the United Kingdom (which she was not if she was prepared to look for work).  I have had my attention drawn to the recent decision on file CIS/886/2008 but it seems to me that the protection of a British child’s right to reside in the United Kingdom rather than elsewhere in the European Economic Area or Switzerland is enforceable only through domestic law rather than European Union law.  That, as I have indicated, would in the present case have involved the claimant making an application to the immigration authorities.

19. However, the claimant may be assisted by Secretary of State for Work and Pensions v Lassal (Child Poverty Action Group intervening) (Case C-162/09) and Secretary of State for Work and Pensions v Dias (Case C-325/09).  What those cases make clear is that the permanent right of residence conferred since 30 April 2006 by Article 16 of Directive 2004/38/EC may have been acquired by five years continuous residence under a right of residence even though that period ended long before April 2006, provided that it has not been lost by two years absence abroad or two years’ residence without satisfying the conditions that usually apply for acquiring a right of residence.  Indeed, this seems consistent with a literal construction of regulation 15 of the 2006 Regulations as applied in the light of paragraph 6 of Schedule 4.

20. In the present case, less than two years had elapsed between the claimant becoming entitled to income support on 1 October 2005 and the period now in issue.  What is not clear is whether the claimant had had a right of residence for a continuous period of five years (ignoring temporary gaps of less than six months and other periods excluded by virtue of Article 16(3)) at any time before that and, if so, whether she ceased to satisfy the usual conditions for a right of residence for as long as two years after that period of five years.  I suspect that she did not work continuously for as long as five years but she would also have had a right of residence during any period when she was self-sufficient, being supported either by her late husband or from other resources and entitled to treatment under the National Health Service by virtue of satisfying the residence and presence conditions under domestic law.  She is unlikely, however, to have had a right of residence during periods when she was entitled to income support, unless she was looking for work.

21. I simply do not know enough about the claimant’s history to be able to form a view as to whether she might have had a right of residence under Article 16 or regulation 15.  Further enquiries need to be made but there is no need for the Upper tribunal to retain the case.  I set aside the decision of the appeal tribunal and remit the case to the First-tier Tribunal (to which have been transferred the functions of appeal tribunals) who will be able to make findings if there are factual matters in dispute.  However, the Secretary of State is asked first to make enquiries of the claimant with a view either to revising the decision of 14 March 2007 in the claimant’s favour or else to making a written submission to the First-tier Tribunal explaining why it is not appropriate to do so.

MARK ROWLAND

15 December 2011