[2007] UKSSCSC CIS 1794 2007 (29 November 2007)
CIS/1794/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the Secretary of State’s appeal.  I set aside the decision of the Fox Court appeal tribunal dated 24 January 2007 and I substitute a decision that the claimant is not entitled to income support from 11 February 2006 because he did not have a right to reside in the United Kingdom and so could not be treated as habitually resident in the United Kingdom.

REASONS

2.	I held an oral hearing of this appeal.  The Secretary of State was represented by Mr Daniel Kolinsky of counsel, instructed by the Solicitor to the Department of Health and the Department for Social Security.  The claimant was represented by Mr Graham Tegg, solicitor, of Shelter Legal Services.  I am very grateful to both advocates for their helpful submissions and I am also grateful to Mr Tegg for providing me with a considerable amount of information about the background to this case that was not apparent from the papers before me, partly because the Secretary of State had mislaid some of the documents relating to the claim.  

3.	The claimant is a Polish national.  He has been severely disabled since birth.  He and his wife came to the United Kingdom in 1998 and claimed asylum on arrival.  They were granted temporary admission to the United Kingdom while their claims for asylum were pending and the claimant also claimed, and was awarded, income support.  In 1999, their claims for asylum were rejected and in 2001 their appeals to an adjudicator were also rejected, although the adjudicator recommended that the Home Secretary grant them exceptional leave to remain.  As a result of the rejection of the claims for asylum, it was decided that the claimant was no longer entitled to income support.  In 2002, the Home Secretary rejected the adjudicator’s suggestion that the claimant and his wife be granted exceptional leave to remain but they made new claims that their human rights would be violated if they were to be removed from the United Kingdom.  Those claims have still not been determined.  Having made those claims, the claimant and his wife were initially entitled to support under Part VI of the Immigration and Asylum Act 1999.  However, on 1 May 2004, Poland acceded to the European Union.  On 2 April 2004, notice had been given that the support would cease on 30 April 2004 by virtue of section 54 of, and paragraphs 1 and 5 of Schedule 3 to, the Nationality, Immigration and Asylum Act 2002, which have the effect of generally excluding nationals of states within the European Economic Area from support under the 1999 Act and various other provisions.  In the face of a threat of judicial review proceedings, support was continued.  I do not know the precise basis of that threat but paragraph 3 of Schedule 3 to the 2002 Act enables support to be given to the extent necessary to avoid a breach of a person’s Convention rights or rights under treaties of the European Communities.  On the other hand, where paragraph 3 does not apply, the Court of Appeal has held, in Regina (Kimani) v. Lambeth London Borough Council [2003] EWCA Civ 1150; [2004] 1 W.L.R. 272, that there is no reason why a person should be supported by the United Kingdom rather than his or her home state if there is no obstacle to him or her returning to his or her home state while waiting for the determination of a claim to a right of residence in the United Kingdom otherwise than as a refugee, even though he or she has a right not to be removed pending determination of the claim.  I understand that the provision of support under the 1999 Act to the claimant in the present case stopped in January 2006 and that the claimant was then assisted to make claims for benefits administered by the Department for Work and Pensions instead.

4.	On 11 February 2006, the claimant made a new claim for income support on the basis that he was incapable of work.  Shortly afterwards, he also claimed, and was awarded, disability living allowance (consisting of the highest rate of the care component and the lower rate of the mobility component) and his wife was then awarded carer’s allowance.  A claim for housing benefit has also been made but I understand that its determination is awaiting the outcome of the appeal before me.

5.	On 24 May 2006, the Secretary of State disallowed the claim for income support on the ground that the claimant had no right of residence and therefore could not be treated as habitually resident in the United Kingdom with the result that he was a “person from abroad” with an applicable amount of nil by virtue of regulation 21 of, and paragraph 17 of Schedule 7 to, the Income Support (General) Regulations 1987 (S.I. 1987/1967 as amended).  The claimant appealed with the assistance of Mr Tegg and the tribunal allowed the appeal on the ground that the claimant had a right of residence by virtue of Article 16 of Directive 2004/38/EC.  The Secretary of State now appeals against the tribunal’s decision with the leave of a salaried tribunal chairman.

6.	A slight complication arises in this case because Directive 2004/38/EC came into force on 30 April 2006, between the date of claim and the date of the Secretary of State’s determination.  A number of amendments to domestic legislation were made at the same time.  However, it is not necessary to consider the earlier legislation because it has not been suggested that the claimant might have had entitlement to income support before 30 April 2006 if he did not have an entitlement from that date (and entitlement form 30 April 2006 might suggest entitlement before then, for reasons I have explained in CIS/2358/2006 and CIS/408/2006).  I will consider only the legislation in force from that date.

7.	Since 30 April 2006, the term “person from abroad” has been defined by regulation 21AA of the 1987 Regulations.  As first introduced on that date, regulation 21AA provided  –

  “(1) ‘Person from abroad’ means, subject to the following provisions of this regulation, a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.

    (2) No claimant 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 claimant 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 claimant is a person seeking work in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland).

    (4) A claimant is not a person from abroad 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;
     (g) 	a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967;
     (h) 	a person who has been granted exceptional leave to enter the United Kingdom by an immigration officer within the meaning of the Immigration Act 1971, or to remain in the United Kingdom by the Secretary of State;
     (i) 	a person who is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act and who is in the United Kingdom as a result of his deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom; or
     (j) 	a person in Great Britain who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption.".

Subsequent amendments are not of direct relevance to this case.

8.	It is not in dispute that the practical effect of being a “person from abroad” is that the person concerned is not entitled to income support by virtue of regulation 21 and paragraph 17 of Schedule 7.  Those not within paragraph (4) of regulation 21AA must, by virtue of paragraphs (1) and (2) show that they have a right of residence and are in fact habitually resident in the United Kingdom if they are to be entitled to income support.  Those within the scope of paragraph (3) are people whose right of residence is dependent on their being workseekers; they are excluded from the scope of income support by paragraph (3) but they may claim jobseeker’s allowance instead. Those who are within the scope of paragraph (4) are deemed not to be “persons from abroad”.  The effect of paragraph (4) is that such people need not show that they are habitually resident in the United Kingdom.  It is also unnecessary to consider whether such people have a right to reside in the United Kingdom although, with the possible exception of those within subparagraph (j), it seems to me that they all do have a right of residence and those within the scope of subparagraph (j) would, in practice, be given such a right. 

9.	It is to be observed that, despite the length of regulation 21AA, it does not purport to define the term “right to reside” which appears in paragraph (2).  Although the present case has been argued as though it turned on the law of the European Communities, the central issue is, in my view, the meaning of the term “right to reside” as a matter of domestic law.  In Secretary of State for Work and Pensions v. Szoma [2005] UKHL 64; [2006] 1 A.C. 564 (also reported as R(IS) 2/06), Lord Brown of Eaton-under-Heywood observed that certain Europe-wide treaties “make a distinction (not recognised in our law) between lawful presence and lawful residence, certain benefits having to be made available only to those lawfully resident in the state”.  At the time material to that case, the concept of a right of residence was not used in domestic social security legislation and it was also not used in domestic immigration legislation save where directives of the Council of the European Communities were being given effect.  The concept entered social security law in 2004 in regulation 21(3G) of the 1987 Regulations, which has now been replaced by regulation 21AA(2).

10.	The present case raises the question of how the concept of a right of residence relates to domestic immigration law and, more particularly, whether a person who has been temporarily admitted to the United Kingdom (presumably under paragraph 21 of Schedule 2 to the 1971 Act) pending determination of a claim for asylum or who it has been decided will not be deported pending determination of the question whether deportation would involve a breach of his or her Convention rights has a right of residence for the purpose of regulation 21AA(2).  It does not follow from the fact that domestic immigration law does not usually draw a distinction between a right of presence and a right of residence that all rights of presence amount to rights of residence.  Indeed, it seems to me that the concept of a right of residence was introduced into social security law precisely for the purpose of making the distinction that the House of Lords was to hold in Szoma had not been drawn in a different context through the use of the term “lawfully present”. 

11.	Obviously a person granted temporary admission has a right of residence in a literal sense, as is clear from the reference to “residence” in paragraph 21(2) of Schedule 2 to the 1971 Act.  Paragraph 21 provides –

   “(1) 	A person liable to detention or detained under paragraph 16 above may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained or be released from detention; but this shall not prejudice a later exercise of the power to detain him. 

    (2) 	So long as a person is at large in the United Kingdom by virtue of this paragraph, he shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer.”     

However, such a decision is by its nature an interim decision made only to preserve the status quo while the question whether the claimant has a real right of residence is determined.  That temporary admission is not to be equated to leave to enter is made plain by section 11 of the 1971 Act, which provides that “a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention, under the powers conferred by Schedule 2 to this Act”.

12.	Moreover, it must be borne in mind that the concept of a right of residence was introduced into social security law against the background of section 115 of the 1999 Act, which provides –

 “(1) 	No person is entitled to income-based jobseeker’s allowance under the Jobseekers Act 1995 or to state pesion credit under the State Pension Credit Act 2002 or to— 
     (a) 	attendance allowance, 
     (b) 	severe disablement allowance, 
     (c) 	carer’s allowance, 
     (d) 	disability living allowance, 
     (e) 	income support, 
     (f) 	…, 
     (g) 	…, 
     (h) 	a social fund payment, 
     (i) 	child benefit, 
     (j) 	housing benefit, or 
     (k)	council tax benefit, 
under the Social Security Contributions and Benefits Act 1992 while he is a person to whom this section applies.

    ….
    
    (9) “A person subject to immigration control” means a person who is not a national of an EEA State and who— 
     (a) 	requires leave to enter or remain in the United Kingdom but does not have it; 
     (b)	has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds; 
     (c)	has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or 
     (d)	has leave to enter or remain in the United Kingdom only as a result of paragraph 17 of Schedule 4. 

   (10)	“Maintenance undertaking”, in relation to any person, means a written undertaking given by another person in pursuance of the immigration rules to be responsible for that person’s maintenance and accommodation.

13.	Thus, it can be seen that people who are not nationals of states in the European Economic Area are excluded from entitlement to benefits, including income-related benefits such as income support, unless they do not need leave to enter or remain in the United Kingdom – because, for instance, they have a right of abode under section 2 of the 1971 Act as a Commonwealth citizen – or else they have such leave.  For such people, the concept of “right of residence” that has now been introduced into the legislation relating to income-related benefits can only apply to those who do not need leave to enter or remain or else have such leave.  Section 115 prevents it from having any application to those who are admitted only temporarily while determination of a claim for asylum is pending.  This approach is reinforced both by subsection (9)(d), which refers to a, now repealed, provision continuing leave while an appeal relating to limited leave was pending, and by the other provisions of Part VI of the Act which set up the scheme for supporting asylum-seekers that made possible excluding them from entitlement to other benefits.

14.	I see no reason why, in relation to domestic immigration law, the concept of a “right of residence” should be construed any more broadly in its application to nationals of states in the European Economic Area.  The exclusion of such people from the scope of section 115 of the 1999 Act is necessary due to the rights they have under Treaties and under directives of the Council of the European Communities.  Separate effect is given, or is intended to be given, to those rights by the Immigration (European Economic Area) Regulations 2006 (S.I. 2006/1003), which purport to give effect to Directive 2004/38/EC and are made largely under section 2(2) of the European Communities Act 1972.  These Regulations do introduce into domestic immigration law the concept of a right of residence, derived from the Directive.  Plainly a person with a right of residence under those Regulations has a right of residence for the purposes of regulation 21AA(2) of the 1987 Regulations and is therefore, in effect, to be treated in the same way as a person with leave to remain.  This equivalence is made plain by section 7(1) of the Immigration Act 1988, which provides –

“A person shall not under [the 1971 Act] require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable Community right or of any provision made under section 2(2) of the European Communities Act 1972.”

Paragraph 1 of Schedule 2 to the 2006 Regulations, made under section 7(2), provides that –

“In accordance with section 7 of the Immigration Act 1988, a person who is admitted to or acquires a right to reside in the United kingdom under these Regulations shall not require leave to remain in the United Kingdom under the 1971 Act during any period in which he has a right to reside under these Regulations but such a person shall require leave to remain under the 1971 Act during any period in which he does not have such a right.”

15.	What is rather more important is that the 2006 Regulations derive from the Directive a distinction between a right of admission and presence and a right of residence.  In relation to rights of admission, it is noteworthy that regulation 22 applies the administrative provisions of the 1971 Act relating to the control of entry to certain cases where there might be a question as to a person’s right of admission and regulation 22(3) provides –

“For so long as a person to whom this regulation applies is detained, or temporarily admitted or released while liable to detention, under the powers conferred by Schedule 2 to the 1971 Act, he is deemed not to have been admitted to the United Kingdom.”

A person who is deemed not even to have been admitted cannot possibly be regarded as having a right of residence unless it is subsequently determined that he did have such a right independent of that temporary admission.  As a matter of the construction of regulation 21AA(2) of the 1987 Regulations the same approach must be taken to any person who is temporarily admitted under Schedule 2 to the 1971 Act.  A person with a right of abode or with leave to enter or remain has a right of residence; a person temporarily admitted does not.

16.	Rights of residence are, of course, also conferred on people by specific provisions of the 2006 Regulations.  However, it is common ground that those do not assist the claimant in the present case.  In particular, Mr Tegg concedes that the claimant did not have a right of residence by virtue of regulation 15(1)(a) of the 2006 Regulations, which provides –

   “(1) The following persons shall acquire the right to reside in the United Kingdom permanently—
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years”,

because he concedes that the claimant had not resided in the United Kingdom “in accordance with these Regulations”, not having been economically active or a student or self-sufficient.  That is so, notwithstanding paragraph 6 of Schedule 4 which treats periods of residence in accordance with previous legislation as though it were a period of residence under the 2006 Regulations.  Moreover, the claimant had been a citizen of the Union only since Poland’s accession in 2004.

17.	I turn, then, to the issues of Community law raised on this appeal.  It is convenient to deal first with the tribunal’s observation that –

“There is no objective justification for the discrimination against him that I find in the denial of income support to him.  I m fortified in this conclusion by the comments of Mr Commissioner Rowland in CIS/3182/2005 although I am not persuaded that those comments are more than obiter dicta.”

The observations to which the tribunal referred are presumably those at paragraph 14 of my decision in CIS/3182/2005, where I was considering the grounds upon which the unequal treatment resulting from the application of the “right to reside” test might be justified for the purposes of Article 12 of the EC Treaty.  I also observed at paragraph 24 that the issues arising as regards Article 12 were the same as though that arose when considering the issue of proportionality on a claim for a right of residence under Article 18(1) of the EC Treaty.

18.	Since the tribunal gave its decision, the Court of Appeal has considered the relevance of Article 12 in Abdirahman v. Secretary of State for Work and Pensions [2007] EWCA Civ 657 (reported as R(IS) 8/07).  Lloyd LJ, with whom the other members of the Court agreed, said –

“44.	I accept Mr Sales’ proposition that the European cases show that, in this area, the scope of application of the Treaty, for the purposes of Article 12, includes both cases where a right of residence arises directly under the Treaty and those where it arises separately under the law of the Member State.  It does not extend to cases where no right of residence exists under either the Treaty or the relevant domestic law.

45.	It follows from this that the right claimed by Ms Abdirahman and Mr Ullusow is not within the scope of application of the Treaty.

46.	On that basis, the need to justify the discrimination on the grounds of nationality which is involved in the use of the right to reside test does not arise.”

Thus, issues of proportionality may be considered when considering whether or not there is a right to reside.  If there is a right of residence, a person will be entitled to rely on Article 12; if not, Article 12 has no relevance.

19.	Mr Kolinsky naturally relied upon Abdirahman when submitting that this part of the tribunal’s decision was erroneous in point of law.  Mr Tegg, however, boldly submitted that Abdirahman was not binding on me, because it was decided under the legislation in force before 30 April 2006, and that it should not be followed because paragraph [44] did not accurately reflect the case-law of the European Court of Justice.  He referred me to Grzelczyk v. Centre public d’aide sociale d’Ottignes-Louvain-la-Neuve (Case C-184/99) [2001] E.C.R. I-6193, Regina (Bidar) v. Ealing London Borough Council (Case C-209/03) [2005] Q.B. 812, Martinez-Sala v. Freistaat Bayern (Case C-85/96) [1998] E.C.R. I-2691 and Trojani v. Centre public d’aide sociale de Bruxelles (Case C-456/02).  I do not accept that the Court of Appeal’s decision is inconsistent with any of those decisions, to all of which Lloyd LJ referred in his judgment.  As he observed, Grzelczyk turned on the particular wording of the directive in issue in that case and Bidar turned on the particular wording of the domestic legislation in issue in that case.  In my respectful view Lloyd LJ accurately summarised the relevant effect of Martinez-Sala and Trojani in paragraph [44].  I respectfully agree with the Court’s decision.

20.	The main ground of the tribunal’s decision in this case was its acceptance of Mr Tegg’s submission that the claimant had a right of residence by virtue of the length of time for which he had been present in the United Kingdom and that regulation 15(1)(a) of the 2006 Regulations had not properly transposed the rights guaranteed by Article 16(1) of Directive 2004/38/EC into domestic law, as it was intended to do.  Article 16(1) provides –

“Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there.  This right shall not be subject to the conditions provided for in Chapter III.”

The tribunal accepted that the claimant had “resided legally” in the United Kingdom by virtue of his temporary admission 

21.	Mr Kolinsky submitted that the tribunal had erred because Article 16 had to be construed in the light of the preamble to the Directive and particularly paragraph (17), which states –

“Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union.  A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.”

He submitted that the transitional provision made by paragraph 6 of Schedule 4 to the 2006 Regulations actually goes further than is required by the Directive.  In the light of the preamble, he submitted, the words “resided legally” in Article 16 had to be construed as meaning “resided … in compliance with the conditions laid down by this Directive”.

22.	In support of these submissions, Mr Kolinsky referred me to the decision of the Asylum and Immigration Tribunal in GN (EEA Regulations: Five years’ residence) Hungary [2007] UKAIT 00073 in which a tribunal comprised of the Deputy President of the Asylum and Immigration Tribunal and a Senior Immigration Judge held that “legally resided” in Article 16 meant resided “in accordance with European law” and that the provisions of the Directive were properly reflected in the 2006 Regulations with the result that the claimant, a Hungarian national, could not rely on residence in the United Kingdom before Hungary acceded to the European Union in 2004, at the same time as Poland.  Decisions of the Asylum and Immigration Tribunal are not binding on a Commissioner but a fully reasoned reconsideration decision of a tribunal presided over by the President, the Deputy President or a Senior Immigration Judge ought generally to be followed by a single Commissioner as a matter of judicial comity, although it must be recognised that a slavish adherence to this could lead to the perpetuation of error.  In other words, a Commissioner may be expected to approach such a decision in the same way as a decision of another single Commissioner (see R(I) 12/75).  Perhaps there will be less readiness to depart from a decision of the Asylum and Immigration Tribunal than a decision of a Commissioner, given the expertise in immigration matters of that tribunal, but such additional inhibition will be lessened if, as in this instance, the unsuccessful party before the Asylum and Immigration Tribunal was not legally represented.  

23.	I am not entirely convinced by Mr Kolinsky’s submissions, which are not even wholly consistent with GN.  It is possible to contrast the phrase “resided legally” in Article 16(1) both with the phrase “residing on the basis of this Directive” in Article 24 and with the simple word “resided” in Article 28(3)(a).  Given the policy identified in the first sentence of paragraph (17) of the preamble and the recognised inadequacy of previous directives (see the opinion of Mr Advocate General Geelhoed in Baumbast v. Secretary of State for the Home Department (Case C-413/99) [2002] E.C.R. I-7091), it would be surprising if residence on the basis of earlier directives were irrelevant to the acquisition of permanent residence under Directive 2004/38/EC and, contrary to Mr Kolinsky’s submission, GN suggests that such residence would be relevant, as rights under Community law.  This particular point is, perhaps, academic because Article 18(1) of the EC Treaty might be prayed in aid if Mr Kolinsky’s submissions about the Directive were correct and anyway the transitional provision in the 2006 Regulations makes it unlikely that a United Kingdom court or tribunal will ever be required to rule on the point.  Of more practical importance, but not relevant to this case, is that Mr Kolinsky’s submissions ignore the possibility of Article 18(1) of the EC Treaty conferring on a person rights of residence not conferred by directives (see Baumbast and my decisions in CIS/2358/2006 and CIS/408/2006).  The decision in GN appears to overlook this point because the Asylum and Immigration Tribunal inconsistently suggests that the Regulations fully reflect the Directive at the same time as suggesting that any right of residence under Community law is relevant to Article 16.

24.	Perhaps more contentious, and another issue that was not considered in GN, is the question whether residence enjoyed by citizens of the Union in accordance with rights of residence recognised by domestic immigration authorities might fall within the phrase “legally resided” in Article 16(1), in the light of Martinez-Sala and Trojani on the basis of which it may be arguable that any right of residence of a citizen of the Union recognised by a Member State must have the same effect for the purposes of Article 16(1) of the Directive as regards that citizen as a right of residence guaranteed by Community law.  Again, if the argument were unsuccessful insofar as the Directive was concerned, it might be argued that Article 18(1) of the EC Treaty confers an analogous right.

25.	My doubts about Mr Kolinsky’s submissions do not, however, lead to the conclusion that GN was wrongly decided.  It may still be good authority for the proposition that rights of residence held under domestic law before a person becomes a citizen of the union are not relevant for the purposes of Article 16(1).

26.	But there is a more fundamental objection to the tribunal’s decision in this case, which arises irrespective of whether GN was correctly decided.  For the reasons I have given, temporary admission does not confer a right of residence and so the domestic immigration authorities have never in fact recognised that the claimant has a right of residence in this case.  In its context, it is quite clear that, in Article 16 of the Directive, the phrase “resided legally” means resided in accordance with rights of residence.  That is apparent from paragraph (17) of the preamble and from the reference back to Chapter III in the second sentence of Article 16 itself.  Chapter III is concerned with an initial right of residence for three months, not subject to any conditions, and to further rights of residence that are subject to conditions.  A permanent right of residence is something that may be acquired after a person has had five years’ residence in accordance with Chapter III or, as I have suggested may be arguable, analogous rights under Article 18(1) of the EC Treaty or domestic law.  Mere presence in exercise of the right of entry under Chapter II or rights under domestic law is not sufficient.  This is why Martinez-Sala and Trojani, upon which Mr Tegg placed so much reliance, do not assist the claimant and, indeed, in paragraph [43] of Abdirahman, Lloyd LJ specifically made the point that “Trojani … shows that an EU citizen, lawfully present in another Member State, but not economically self-sufficient, does not, merely by virtue of lawful presence in the host State, acquire a Treaty-based right of residence”.  A person cannot acquire a permanent right of residence in the United Kingdom through Community law when he has not only never exercised any Community right of residence in the United Kingdom but he has also never had a right of residence under United Kingdom domestic law. 

27.	Mr Tegg suggested that, in the absence of a requirement that people apply for residence permits, the United Kingdom is unable to argue that a citizen of the Union who has been present in the United Kingdom for five years without recourse to public funds has not been exercising a right of residence as a self-sufficient person under Article 7(1)(b) of the Directive.  However, that point does not arise in the present case, where the claimant had been dependent on support under the 1999 Act and had not been a citizen of the Union for five years.

28.	Mr Tegg submitted that I should refer to the European Court of Justice questions as to the meaning of Article 16 but I am not satisfied that any of the doubts there may be about the scope of that provision arises on a question that would be determinative of this case.

29.	Finally, I have considered whether I should adjourn this case to await the decision of the immigration authorities.  However, the European Convention on Human Rights does not confer rights of residence itself, it is for the immigration authorities to determine whether leave to enter or remain should be granted in the light of the Convention.  Thus, the immigration authorities will not answer the question whether, at the date of the claim for income support, the claimant had a right of residence in the United Kingdom.  If the claimant is successful, they will make a decision conferring only a prospective right of residence.  Support under the 1999 Act is available to the extent necessary to avoid any breach of Convention rights while determination of the immigration case is pending and I do not consider that the Convention requires the payment of income support, provided that the case is handled with reasonable expedition.

30.	I do not consider it to be wholly unreasonable that the claimant is denied income support.  If his immigration claim is unmeritorious, he could presumably return to Poland.  If he has a meritorious case and is unable to return to Poland, the claimant is not left without remedy.  There has been delay in determining his immigration case.  Some people may welcome such delay but it has always been open to the claimant to put pressure on the immigration authorities to determine his case quickly.  If there has been delay in which the claimant has not acquiesced, there may even be the possibility of a claim for damages, provided he is eventually granted leave to remain and can show that the delay has led to a loss of income-related benefits.  If his Convention rights are being breached while he is waiting for his immigration case to be determined, he may be able to bring proceedings requiring support to be provided under the 1999 Act.  These appear to be sufficient remedies for Convention purposes.

31.	In any event, I am satisfied that the claimant is not entitled to income support.  I allow the Secretary of State’s appeal.

	(signed on the original)	MARK ROWLAND
		Commissioner
		29 November 2007