DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is given under section 14 of the Social Security Act 1998:
The decision of the Fox Court appeal tribunal under reference 160/07/03178, held on 1 October 2007, is not erroneous in point of law. 

REASONS
A.	What the case is about
2.	The issue in this case is whether the claimant was a person from abroad for the purposes of the Income Support (General) Regulations 1987. The only argument in his favour is that he was in a durable relationship with a Union citizen and that argument can only succeed if she had a right to reside.
B.	The oral hearing 
3.	I held an oral hearing at Procession House on 5 August 2008. The claimant and his partner were present at the venue. He did not attend the hearing, although she did. He was represented by Mr Samuel, of counsel, instructed by the Mary Ward Legal Centre. The Secretary of State was represented by Mr Nelson on behalf of the Solicitor to the Department for Work and Pensions. I am grateful to both for their arguments at the hearing.
C.	The facts
4.	These are the facts as they appear from the evidence. In so far as they are in doubt or dispute, I take them the tribunal’s findings.
5.	The claimant is Spanish and was born on 11 August 1961. He has mental health problems and first came to the United Kingdom on 1 October 2005 to look for work. He was paid jobseeker's allowance between June and October 2006 and was accepted as incapable of work from September 2006. 
6.	Initially, he hoped to re-establish his relationship with a former girlfriend. Nothing came of that, but he met a lady I shall call Ms G, who is Spanish and who has been in the United Kingdom since 1993. She has studied and worked here. Most recently, she has received incapacity benefit on account of depression. 
7.	The claimant and Ms G met in April 2006. (The tribunal said they met in 2005, but this may be a slip.) She became pregnant by him in November 2006; the baby was born in May 2007. The tribunal accepted the claimant’s evidence that he had not lived with Ms G as a couple until January or February 2007. There had been a brief separation between October and December 2006. Otherwise, he had visited her, taken showers at her flat and stayed on two or three nights in a week. On other nights, he slept in his car. He did not feel able to move in with Ms G before January-February 2007 because he was in two minds, was not psychologically in a state to make decisions and felt he might be taking advantage of her trust. 
D.	What I have decided
8.	I heard argument on a number of issues. I have decided that the tribunal was entitled to make the findings that it did on the evidence before it. In view of that, strictly I need not deal with any of the other issues raised by Mr Samuel. However, I have decided those that relate to the ‘durable relationship’ out of courtesy to counsel and in case they arise in future cases. I have not dealt with any issue on Ms G’s residence status.
9.	I have decided these points:
•	‘Durable relationship’ is an EC concept.
•	Durability is ambiguous as to the time frame by reference to which it must be determined and relates to the relationship rather than the partnership. 
•	The tribunal was entitled to find that the relationship was not durable.
•	If he were in a durable relationship, the claimant would have to have leave to remain in the United Kingdom from the Secretary of State (for the Home Department).
•	It is not disproportionate to rely on section 12(8)(b) of the Social Security Act 1998. 
10.	I identify Mr Samuel’s argument briefly at each stage. Mr Nelson argued compendiously and succinctly that the tribunal had come to the correct decision on the facts and had not misdirected itself in law. 
E.	The claim for income support 
11.	The claimant claimed income support on 11 September 2006. The Secretary of State refused the claim on 20 April 2007 on the ground that the claimant was a person from abroad. In order to understand that decision, I need to refer to the legislation that governs income support.
12.	Income support was established by the Social Security Act 1986. The relevant provisions have been consolidated by the Social Security Contributions and Benefits Act 1992. 
13.	Section 124(1) of the 1992 Act provides:
‘(1)	A person in Great Britain is entitled to income support if-
…
(b)	he has no income or his income does not exceed the applicable amount.’
14.	Section 135 provides: 
‘(1)	The applicable amount, in relation to any income-related benefit, shall be such amount or the aggregate of such amounts as may be prescribed in relation to that benefit.
(2)	The power to prescribe applicable amounts conferred by subsection (1) above includes power to prescribe nil as an applicable amount.’
15.	The Income Support (General) Regulations 1987 are made, in part, under that authority. Paragraph 17 of Schedule 7 to those Regulations prescribes that the applicable amount for a ‘person from abroad’ is nil. 
16.	‘Person from abroad’ is defined by regulation 21AA. Mt Samuel relied on paragraph (2):
‘Special cases: supplemental – persons from abroad
21AA.—(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).’
17.	Putting all that together, the effect is this. The claimant did not have a right to reside to satisfy regulation 21AA. Therefore, his applicable amount under Schedule 7 was nil. Therefore, he did not satisfy section 124(1)(b) and was not entitled to income support.
F.	The right to reside for a partner in a durable relationship
18.	The claimant exercised his right of appeal and was represented by the Mary Ward Legal Centre. His representative argued that he had a right to reside. This right derives from EC law.
19.	The claimant is Spanish. Accordingly, he is a Union citizen under the EC Treaty:
‘PART TWO
CITIZENSHIP OF THE UNION
Article 17
1.	Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.
2.	Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.’
20.	One of those rights is the right to reside:
‘Article 18
1.	Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.’
21.	The relevant limitations and conditions are laid down in Directive 2004/38/EC. The claimant’s representative argued that he came within Article 3(2)(b):
‘Article 3
Beneficiaries
1.	This 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, and to their family members as defined in point 2 of Article 2 who accompany or join them.
2.	Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
(a)	any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right or residence, or where serious health grounds strictly require the personal care of the family member of the Union citizen;
(b)	the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.’
22.	The background to this provision is provided by Recital 6:
‘(6)	In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.’
23.	Article 3(2)(b) has been implemented by the Immigration (European Economic Area) Regulations 2006. The structure of these Regulations is this. They give a right to reside to certain categories of person (‘qualified persons’) and to those who have a right of permanent residence: regulations 14(1) and 15. Their family members also have the right to reside: regulation 14(2). And an ‘extended family member’ is treated as a family member: regulation 7(4). ‘Extended family member’ includes a beneficiary under Article 3(2)(b) of the Directive. See regulation 8:
‘“Extended family member”
8.-(1)	In these Regulations “extended family member” means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).
…
(5)	A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision-maker that he is in a durable relationship with the EEA national.
…’
G.	Is ‘durable relationship’ an EC concept?
24.	Mr Samuel argued that it was. I accept his argument. 
25.	It is obvious that the concepts employed by EC legislation must have a common meaning throughout the Community. Otherwise, EC law would differ from State to State depending on the particular definition used in domestic law. As the European Court of Justice explained in Hoekstra v Bestuur der Bedrijfsvereniging voor Dertailhandel en Ambachten (Case 75/63) [1964] ECR 177, paragraph 1:
‘If the definition of this term were a matter within the competence of national law, it would therefore be possible for each Member State to modify the meaning of the concept of “migrant worker” and to eliminate at will the protection afforded by the Treaty to certain categories of person.’
The Court summarised the effect of the case law in R (Barker) v Bromley London Borough Council (Case C-290/03) [2006] QB 764:
‘40.	Thus, while this term is modelled on certain elements of national law, it remains a Community concept which, contrary to the submissions of Bromley LBC and the United Kingdom Government, falls exclusively within Community law. According to settled case-law, the terms used in a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope are normally to be given throughout the Community an autonomous and uniform interpretation which must take into account the context of the provision and the purpose of the legislation in question (see, to this effect, Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C‑287/98 Linster [2000] ECR I-6917, paragraph 43; and Case C-201/02 Wells [2004] ECR I-723, paragraph 37).’
26.	I must, therefore, decide whether the Directive contains an express reference to the law of the Member States. Article 3 provides that the host State must facilitate entry ‘in accordance with its national legislation’. Do those words allow each Member State to provide its own definition of a durable relationship? Actually, the question must be wider than this. Do those words allow each Member State to provide its own definition of all the concepts used in Article 3(2) that are not defined in the Directive? 
27.	My understanding of ‘in accordance with its national legislation’ is this. 
28.	First, it must allow a Member State to apply its own procedural rules. 
29.	Second, it does not allow a Member State to define concepts such as ‘serious health grounds’, ‘partner’ and ‘durable relationship’. Article 3(2) imposes a duty on Member States. It is necessary to distinguish the terms of the duty and the circumstances in which it arises. The terms of the duty are to ‘facilitate entry and residence’ and to ‘undertaken an extensive examination of the personal circumstances’. The duty arises, or applies, if a person covered by (a) or (b) wishes to enter or reside in the territory of the State. Accordingly, the duty does not arise unless and until either (a) or (b) is satisfied. Those persons are the subjects, or beneficiaries, of the duty. The words ‘in accordance with its national legislation’, by their location, qualify the terms of the duty. That duty cannot arise until the potential beneficiaries have been identified. It only operates after the stage at which that has occurred and cannot allow a State to define the prior question of the persons to whom the duty applies. Moreover, if the words allow the State to define both the scope of the duty and the persons to whom it applies, Article 3(2) would be largely redundant.
30.	Third, the concepts employed in Article 3(2) are expressed in ordinary words that do not require definition and can be left to the relevant fact-finding body. 
31.	Fourth, even if it does allow a Member State to provide definitions of the concepts used in Article 3(2), those definitions cannot be rigid ones, because that would be incompatible with the requirement to ‘undertake an extensive examination of the personal circumstances’ of the person concerned. This requires an individual approach that is not consistent with a rigid definition.
32.	Fifth, it allows a State to exclude persons who are within Article 3(2)(a) or (b), such as someone who has no command of English, and to impose conditions on entry or residence in addition to those set out in Article 3(2), such as a ‘no resort to public funds’ condition. This is provided that the conditions are justified on an extensive examination of the person’s personal circumstances. But these conditions cannot, in terms or by effect, redefine the personal scope of the Article. 
33.	Mr Samuel referred me to three decisions of the Asylum and Immigration Tribunal. AP and FP (Citizens Directive Article 3(2); discretion, dependence) India [2007] UKAIT 00048, which was approved in AK (Citizens Directive; AP and FP applied) Sri Lanka [2007] UKAIT 00074, and ST and others (Article 3.2: Scope of regulations) India [2007] UKAIT 00078. I respectively agree with those decisions that Article 3(2) does not confer a right of residence on the beneficiaries and Mr Samuel did not argue that it did. There are certainly some statements in those decisions that appear to be inconsistent with my conclusions. However, those statements have to be read, as mine do also, in their context. None of those cases was concerned with the issue whether a Member State could define for itself the meaning of the concepts employed in Article 3(2)(a) and (b). 
34.	Mr Samuel showed me documents indicating that the Secretary of State for the Home Department had issued guidance for immigration officers that, in effect, defined a durable relationship as one that had lasted for a specified time. He told me that that guidance was no longer on the web and was possibly being rewritten following the Court of Appeal’s grant of leave in FD (Algeria) v Secretary of State for the Home Department [2007] EWCA Civ 981. (He told me that this appeal had since been compromised.) In view of the uncertainty over the current position, I make no comment on this guidance. 
H.	What does ‘durable’ mean?
35.	This imposes two requirements. The person must (i) be a partner of a Union citizen and (ii) be in a durable relationship with that person. They are cumulative; (ii) is additional to (i). A couple are likely to be partners if they are living together with each other in the same household as husband and wife. There is no doubt that the couple in this case were partners by the time of the Secretary of State refused the claim for income support. 
36.	‘Durable’ has an element of ambiguity. It may mean that it has lasted or that it is capable of lasting. Too much should not be made of this. If the focus is on the past, the length of time for which the partnership has survived will not be the only factor that is relevant. The circumstances will be as important as the duration of the relationship. Survival in times of wealth, health and good fortune is less an indication of durability than survival in terms of poverty, poor health and misfortune. And if the focus in on the present and future, the fact that it has lasted may, depending on the circumstances, be very good evidence that it is and will remain durable.
37.	‘Durable’ governs the relationship, not the partnership. However, the relationship has to be with the partner. It may, and usually will, have existed before the couple became partners and evidence of the relationship at that time is relevant to its durability.
38.	Subject to these points, the durability of a relationship is an issue of fact.
I.	Was the tribunal entitled to find that the relationship was not durable?
39.	Mr Samuel argued that it was not. I reject his argument.
40.	The tribunal recorded the facts of the relationship between the claimant and Ms G and found that the relationship had not been shown to be durable. 
41.	There were a number of factors in favour of the tribunal’s decision. (i) They had only known each other for a year by the time of the decision under appeal. (ii) The course of how their relationship developed was not spelt out, but it is reasonable to infer that it developed over time and not immediately on first meeting, so that it had lasted less than a year by the date of decision. (iii) It was interrupted by a separation of two or three months. (iv) The claimant felt unable to commit himself before early 2007, for a variety of reasons. (v) The lack of certainty on the claimant’s part is shown by his willingness to sleep in a car rather than stay full-time with Ms G. (v) The claimant admitted that his mental state was affecting his decision-making. (vi) The stresses of pregnancy and mental health problems might present additional strains on the relationship. 
42.	Other facts are against the tribunal’s decision. (i) They were having a child. (ii) Whatever had been his feelings before and however long he had taken to commit himself, the claimant had now moved in with Ms G. (iii) Coping with the stresses of pregnancy and child rearing might strengthen their relationship. (iv) Their shared mental health problems might lead to mutual understanding and support. (v) The survival of the relationship despite the separation showed a strength of feeling and commitment.
43.	No doubt, it is possible to find other factors, both for and against. 
44.	I take the criticisms of the tribunal’s finding from Mr Samuel’s grounds for appeal.
45.	First, Mr Samuel argued that it was wrong to take judicial notice of the effect of the stresses of pregnancy. I reject that. The tribunal did not mention judicial notice, nor did it rely on it. Judicial notice is part of the formal law of evidence, which does not operate in the appeal tribunal. The tribunal merely took account of a factor that is part of everyday experience, that pregnancy can create stress in a relationship. This was a relevant factor and the tribunal was entitled to take it into account. 
46.	Second, Mr Samuel argued that the tribunal had failed to take account of the fact that the claimant’s doubts about his relationship had been resolved. I reject that. I am sure that the tribunal did not overlook it. But the point was not wholly in the claimant’s favour. The commitment had only been made a couple of months before the decision and the tribunal was entitled to take account of the difficulties the claimant had had in making a decision. 
47.	Third, Mr Samuel argued that the tribunal failed to take account of the fact that the separation had been overcome, which showed that the relationship was durable. I reject that. Again, I am sure that the tribunal did not overlook it. But again the point was not wholly in the claimant’s favour. The fact is that there had been a separation and only a relatively short time since then to show that the relationship was stable and durable. 
48.	Fourth, Mr Samuel argued that the tribunal was not entitled to find that the claimant had moved in with Ms G because he felt responsible for her and their baby. I reject that. The tribunal did not find that that was the motive. The tribunal linked the two, but not in a way to suggest that the claimant committed himself solely on account of that. 
49.	Fifth, Mr Samuel argued that if Ms G became pregnant in November 2006, they could not have been separated from October to December 2006. I accept that. However, the dates were stated in broad terms. And separation does not necessarily imply that the parties were not seeing each other. They may have been meeting, but not with the same frequency or regularity as before. Moreover, it is likely that the relationship was re-established gradually rather than suddenly without prior contact. There is also another possibility. Unless the baby was born early, it is likely that conception was before November. It may have predated the separation. 
50.	It is important to take account of how tribunals make and explain decisions that depend on an assessment of the significance of a number of considerations each of which must be considered in the context of all the others. It is difficult to know precisely how the brain analyses the vast number of combinations, and therefore to explain the outcome of the mental process. The best that the tribunal can do is to make its findings of fact and to set out the factors that have particularly influenced its conclusion. The tribunal has done both in this case. It was entitled to find that the relationship had not been shown to be durable, given the past history and the current strains on it. 
J.	Must the claimant have a permit, certificate or card in order to have a right to reside?
51.	This issue arises because of regulation 7(3) of the Immigration (European Economic Area) Regulations 2006:
‘(3)	Subject to paragraph (4), a person who is an extended family member and has been issued with an EEA family permit, a registration card or a residence card shall be treated as a family member of the relevant EEA national for so long as he continues to satisfy the conditions in regulation 8(2), (3), (4) or (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked.’
52.	Mr Samuel argued that a permit, certificate or card was merely evidence of rights, not determination of them. I accept his argument. The Asylum and Immigration Tribunal has decided that they are procedural and not substantive: AP and FP (Citizens Directive Article 3(2); discretion, dependence) India [2007] UKAIT 00048, confirmed in AK (Citizens Directive; AP and FP applied) Sri Lanka [2007] UKAIT 00074. I respectfully agree. 
53.	However, this does not assist the claimant. Although the document may be evidential or procedural, it is nonetheless essential that the claimant have the document and with it the right to reside of which the document is evidence. That is clear from Directive 2004/38/EC. Article 3(2) does not confer a right of residence; that right can only arise if the host State gives it. It is also clear from the provisions in the 2006 Regulations that govern the issue of these documents. To take regulation 16 as an example, it provides for the issue of a registration certificate on certain conditions, one of which is that ‘in all the circumstances it appears to the Secretary of State appropriate to issue the registration certificate’ (regulation 16(5)(b). Unless and until that condition has been satisfied, the claimant will not have a right to reside and the certificate will not be issued. See also regulations 12(2)(c) and 17(4)(b). In short, the Secretary of State must give claimant leave to remain before he acquires a right to reside. 
K.	Is it disproportionate to apply section 12(8)(b) of the Social Security Act 1998?
54.	Mr Samuel argued that it was. I reject his argument. 
55.	Section 12(8) of the Social Security Act 1998 provides:
‘(8)	In deciding an appeal under this section, an appeal tribunal-
…
(b)	shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.’
56.	The effect of this provision was that the tribunal could only take account of circumstances obtaining at 20 April 2007. Mr Samuel argued that that was disproportionate in that it required the tribunal to ignore the fact that the relationship had endured until the date of the hearing on 1 October 2007. I reject that argument for two reasons. 
57.	First, if there was evidence of events or circumstances after 20 April that shed light on the circumstances that were obtaining at that date, it was admissible under section 12(8)(b): see my analysis in R(DLA) 2 and 3/01 and, on equivalent legislation, the analysis of Newman J in Secretary of State for Defence v Rusling [2003] EWHC 1359 QB at paragraphs 71-72.
58.	Second, if there was evidence of events or circumstances after 20 April that showed the relationship had since become durable, the appropriate course was to make a new claim on the circumstances then obtaining.
59.	In either case, there would be no prejudice to the claimant and it would not be disproportionate to apply the legislation. 
L.	Disposal
60.	I dismiss the appeal.

Signed on original
on 14 August 2008	Edward Jacobs
Commissioner