Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made on at under reference ) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.

The decision is: on his claim for income support, made on 3 January 2007 and refused on 21 May 2007, the claimant was a person from abroad whose applicable amount was nil. He was not entitled to income support.

Reasons for Decision

1.          This case began as an appeal from the appeal tribunal to the Social Security Commissioner. Since then, the social security jurisdictions of the tribunal and the Commissioner have been transferred to the First-tier Tribunal and the Upper Tribunal respectively. That has not affected the handling of the case or the outcome. The progress of the case has been delayed in order to await decisions of the senior courts and the Court of Justice of the European Union.

2.          Mr S is a citizen of the Slovak Republic. He came to the United Kingdom in 1996 as an asylum seeker. His claim was never decided; that is an important fact in this case. In 1997, he was given permission to work. The papers do not show his full work history. However, it is clear that he worked as a self-employed builder from at least 2000 to May 2006. He was registered with Her Majesty's Revenue and Customs. He then obtained work as an employee with Best Connection Group Ltd. He registered this work under the Accession State Worker Registration Scheme. The Registration Card was issued on 3 April 2007 and recorded that the work began on 29 September 2006. By the date of issue, Mr S had become incapable of work. His P45 shows that he left the employment on 26 November 2006.

3.          Mr S claimed income support on 3 January 2007. The Secretary of State refused his claim on 21 May 2007 on the ground that he was a person from abroad whose applicable amount was nil. The effect was that he was not entitled to income support.

4.          Mr S exercised his right of appeal to the First-tier Tribunal, which decided that he had a right to reside. The judge set out his reasoning on the decision notice:

5.          The judge decided that Mr S was a worker who had retained his status on becoming temporarily unable to work. That would give Mr S a right to reside. The judge realised that there was a potential problem, as Mr S had not worked in registered employment for 12 months. He tried to overcome that difficulty by deciding that the 2004 Regulations did not apply on the ground that Mr S had been self-employed for 12 months since 1 May 2004, when his country acceded to the EU. The judge cited no authority for that final proposition. That is not surprising, because it has no legal basis whatsoever. His argument does not work for the simple reason that the 2004 Regulations do not apply to the self-employed. As a result, the tribunal’s decision was in error of law. The question I now have to answer is: did the tribunal come to the right decision for the wrong reason?

6.          Mr S registered under the Accession State Worker Registration Scheme, but only after his employment had ended. There is an issue whether registration in those circumstances is effective. I will assume that it was. On that basis, he was a worker when he became unable to work. Normally, he would be entitled to retain that status by virtue of Article 7(3)(a) of Directive 2004/38/EC and regulation 6(2)(a) of the 2006 Regulations. Regulation 21AA of the Income Support (General) Regulations 1987 defines person from abroad by reference to rights to reside under the Directive rather than under the 2006 Regulations. However, regulation 4 of the 2004 Regulations provides that those Regulations derogate from the rights under the Directive so that Mr S is only entitled to reside in the United Kingdom under the 2006 Regulations as modified by regulation 5. And regulation 5(3) of the 2004 Regulations provides that ‘regulation 6(2) of the 2006 Regulations shall not apply to an accession State worker requiring registration who ceases to work.’

7.          The result of these complex provisions is this. Assuming that Mr S was a worker by virtue of his late registration, he could not retain that status when he was unable to work. And as he could not retain his status, he could not have the right to reside that goes with it.

8.          Mr S worked as a self-employed person from 2000 to May 2006. From 1 May 2004, he had a right to reside as a self-employed person under Article 7(1)(a) of the Directive. That right to reside ceased when he gave up his self-employment in May 2006. Before 1 May 2004, he did not have a right to reside in the United Kingdom. He was present here and was allowed to be here. But that does not mean that he had a right to reside here. He was an asylum seeker, whose claim had not been decided. As Elias LJ explained in Miskovic and Blazej v Secretary of State for Work and Pensions [2011] EWCA Civ 16 at [43], asylum seekers

are lawfully present but have no right to reside; and they are subject to such restrictions on residence as may be imposed; they are not free to come and go as they choose. The permission to work may be withdrawn or limited at any time.

If Mr S had had a right to reside while working in self-employment before 1 May 2004, it could have been into account for the purposes of acquiring a permanent right to reside. See Ziolkowski v Land Berlin (Case C-424/10), a decision of the Court of Justice of the European Union. However, the permanent right to reside only arises after a person has resided in accordance with the Directive. Mr S did not so reside. The result is that he only resided in accordance with the Directive as a self-employed person for just over two year, not for the five years that is necessary.

G.        Conclusion

9.          The tribunal’s reasoning was erroneous in law. It should not have allowed Mr S’s appeal. I have considered whether there was any other basis on which, given the evidence, he had a right to reside. But for the reasons I have explained, he did not have such a right. I have, therefore, re-made the tribunal’s decision to confirm that the Secretary of State’s decision was correct.