CIS/1833/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the Secretary of State’s appeal.  I set aside the decision of the Southampton appeal tribunal dated 17 January 2006 and decide that the claimant is not entitled to income support from 13 May 2004.  

REASONS

2.	The claimant is a citizen of Malta.  He has resided in Great Britain for considerable periods since 1999, being given limited leave to remain on a number of occasions before Malta acceded to the European Union on 1 May 2004.  In particular, his leave to remain was conditional on him not having recourse to public funds and so, if he had claimed income support before 1 May 2004, he would have been found to have no entitlement by virtue of section 115 of the Immigration and Asylum Act 1999.  He worked for a while in 2002, when his leave to remain was on the basis that he was a working holidaymaker, but was then unemployed and was awarded jobseeker’s allowance, possibly wrongly.  On 13 May 2004, he claimed income support on the ground that he was incapable of work.  He said he had been incapable of work since 13 March 2004.  This claim was disallowed.  On 17 January 2006, a tribunal allowed his appeal on the ground that, as a European Union national, the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326) applied to him and he was a “qualified person” with a right of residence by virtue of being a worker who was temporarily incapable of work and that he could therefore be regarded as habitually resident in the United kingdom.  The Secretary of State now appeals with the leave of a tribunal chairman.

3.	The tribunal’s reasoning is clearly flawed for the reason suggested by the Secretary of State.  The claimant was not a European Union citizen when he last worked or at the time when he first became incapable of work and he was incapable of work from the date of his claim for income support until the date the Secretary of State disallowed it.  Regulation 5(2) of the 2000 Regulations, which provided that a person did not cease to be a worker when temporarily unable to work due to illness or involuntarily unemployed, had no application where the claimant, when working, had not been present in the United Kingdom in the exercise of the right of freedom of movement conferred by European Union law.  The Regulations must be construed in the same way as the Directives of the European Communities to which they gave effect and the European Court of Justice has declined to allow a person seeking a right of residence to rely on periods of employment before the state of which he was a citizen had acceded to the European Community (see Tsiotras v. Landeshauptstadt Stuttgart (Case C-171/91) [1993] E.C.R. I-2925).  Nor does any other provision of the 2000 Regulations assist the claimant.  In particular, the claimant did not have a right to reside in the United Kingdom as a self-sufficient person if it was necessary for him to claim income support.  Equally, of course, he would not be able to rely on the leave to remain given to him before 1 May 2004 once he had had recourse to public funds by claiming income support.

4.	I deferred consideration of this appeal to await the Court of Appeal’s decision in Abdirahman v. Secretary of State for Work and Pensions [2007] EWCA Civ 657.  It appears that the claimant has now moved without notifying the Commissioners’ Office of his new address.  He has therefore not replied to a direction asking him to comment on a suggestion that the effect of that case was that the Secretary of State’s appeal should be allowed.  That decision certainly does not assist the claimant to show that he has a right of residence in the United Kingdom under European Union law.  In my judgment, he did not have such a right.  

5.	Accordingly, I set aside the tribunal’s decision.  I can substitute my own decision as no fresh findings of fact are required.  By virtue of regulation 21(3G) of the Income Support (General) Regulations 1987 (S.I. 1987/1967), the fact that the claimant did not have a right to reside in the United Kingdom meant that he could not be treated as habitually resident in Great Britain and therefore his applicable amount was “nil” because he was a “person from abroad” as that term was defined in regulation 21(3).  The upshot is that he was not entitled to any income support (see section 124 of the Social Security Contributions and Benefits Act 1992).

	(signed on the original)	MARK ROWLAND
		Commissioner
		3 October 2007