IN THE UPPER TRIBUNAL	Case No.  CIS/3378/2007
ADMINISTRATIVE APPEALS CHAMBER

Before: UPPER TRIBUNAL JUDGE ROWLAND

Attendances:

For the Appellant:	Mr Tom Royston of Kirklees Law Centre

For the Respondent	Mr Denis Edwards of counsel, instructed by the Solicitor to the Department for Work and Pensions

Decision:  The decision of the Wakefield appeal tribunal dated 23 July 2007 is erroneous in law.  I set aside it aside but substitute a decision to the same effect.  The claimant is not entitled to income support from 4 August 2006. 

REASONS FOR DECISION

1.	This is an appeal by the claimant against a decision of the Wakefield appeal tribunal dated 23 July 2007, dismissing the claimant’s appeal against the refusal by the Secretary of State dated 11 November 2006 to award income support from 4 August 2006 on the ground that she was a “person from abroad” with an applicable amount of nil because she had no right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland and so could not be treated as habitually resident in any of those territories (see regulatios 21(1) and 21AA of the Income Support (General) Regulations 1987 (SI 1987/1968), as amended).  The appeal is brought with the leave of the chairman of the appeal tribunal.

2.	The claimant is a Polish national who came to the United Kingdom in December 1998 at the age of 10, accompanying her parents and three siblings.  They returned to Poland in 2002 after being refused asylum.  The Home Office records do not seem entirely consistent but Mr Edwards’ information was that they had been removed as overstayers in September 2002 following the rejection of a Human Rights claim.  The claimant had a brief visit to the United Kingdom in 2003 and then came back to the United Kingdom with her family on 8 June 2004, Poland having joined the European Union on 1 May 2004.  The claimant’s father obtained work.  However, her mother died suddenly on 13 October 2004 and her father left his employment in January 2005, suffering from depression.  He received income support from 21 March 2005 on the basis of incapacity but it was decided on 6 November 2007 that he should not have done so because he did not have a right of residence.  In any event, the claimant ceased to be included in her father’s claim when she left technical college and started work on 18 April 2005.  She continued to work until 11 November 2005 and was registered under the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219).  She had a further job for about two months from February 2006 but was not registered in respect of that employment.  It was at about that time that, still aged only 17, she became pregnant.  There appears to have been a dispute between her and her father when he discovered she was pregnant and she left the family home in June 2006.  She found rented accommodation and managed to secure employment from 20 June 2006 to 21 July 2006, although she did not obtain a worker’s registration certificate in respect of that period.  Her pregnancy being fairly advanced, she claimed income support on 4 August 2006.  Her child was born on 8 October 2006.  Her claim was disallowed on 11 November 2006.  On 9 December 2006, she reached the age of 18.

3.	Various arguments have been advanced on behalf of the claimant since she first appealed to the appeal tribunal.  In particular, it was argued before the appeal tribunal that the claimant had a right of residence as a member of her father’s family and it is common ground that the appeal tribunal erred in rejecting that argument simply because she was not living with him.  However, now that it is clear that her father did not himself have a right of residence, it is equally clear, and not disputed, that the claimant cannot succeed on the basis that she was a member of his family.  (Mr Commissioner Mesher was unaware of the decision of 6 November 2007 when he awarded child benefit to the claimant in CF/1863/2007).  A challenge to the 2004 Regulations has also been abandoned in the light of Zalewska v Department for Social Development [2008] UKHL 67; [2008] 1 WLR 2602 (also reported as an appendix to R 1/09 (IS)).  It is also accepted that the claimant is not directly covered by any domestic legislation or the detailed provisions of European Community legislation including, in particular, Directive 2004/38/EC.

4.	The argument before me has been based on broader points.  Mr Royston argues that the facts of this case are exceptional and that, notwithstanding that the claimant did not fall squarely within the scope of any European Community legislation, she had a right of residence by virtue of Article 18 of the Treaty because it would not be fair or proportionate to find otherwise.  He relies on my decision in R(IS) 4/09, where, applying the approach taken in Baumbast and R v Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091, I said –

“37.	I am … satisfied that a person may be found to have a right of residence by virtue of Article 18(1) of the EC Treaty where the principle of proportionality requires that a lacuna in directives must be filled, that proportionality must be judged by reference to, inter alia, Directive 2004/38/EC in any case arising after the adoption of that directive and that there may, in principle, be circumstances in which the principle of proportionality requires that a right of residence be recognised even though the claimant is not self-sufficient.” 

5.	Although Mr Royston characterised the facts of the present case as “exceptional”, essentially his case rests on the claimant’s youth.  She had, he submitted, lived in the United Kingdom for most of the time since the age of 10 (about six of nearly eight years), had mostly been educated (at least at secondary level) in the United Kingdom, had not had any choice about coming to the United Kingdom when she did and, for someone of her age, had worked for a substantial period.  Most importantly, her immediate family was now in the United Kingdom but she was estranged from her father and her mother had died.

6.	Mr Edwards submitted that it was not possible for people to have rights of residence if they did not fall within the four corners of directives, but he accepted that it was increasingly difficult to maintain that line in the light of the decision of the Court of Appeal in Dias v Secretary of State for Work and Pensions [2009] EWCA Civ 807 and, I would suggest, Kaczmarek v Secretary of State for Work and Pensions [2008] EWCA Civ 1310 (reported as R(IS) 5/09).  I see no reason to depart from the position I took in R(IS) 4/09 and have consistently maintained hitherto.  

7.	However, Mr Edwards submitted that, even if the approach in R(IS) 4/09 were generally correct, the claimant’s case failed both because this was not a case where there was a lacuna to be filled and because, in any event, the approach taken in R(IS) 4/09 could not be relevant in a case where a citizen of an “A8” state, such as Poland, was concerned.  

8.	In R(IS 4/09, I contrasted a lacuna, which I regarded as a gap in the legislation caused by an accidental oversight, with a deliberate decision to exclude a category of person from the scope of a provision guaranteeing rights of residence.  I agree with Mr Edwards that not recognising rights of residence in persons who cannot reasonably be expected to work through pregnancy or having very recently given birth but who are not on maternity leave must have been deliberate.  However, that does not address Mr Royston’s point about the present claimant’s relative youth and her having become more integrated into British society than Polish society through choices made by her parents rather than by her.  As Sedley LJ pointed out in Westminster City Council v Morris [2005] EWCA Civ 1184 at [41], a policy that links entitlement to services and benefits to immigration status may achieve its aims by putting pressure to leave the United Kingdom on those who do not qualify.  That may be legitimate but if it appears wholly unreasonable to expect a person to return to the country of which he or she is a national, that may raise the question whether that person can demonstrate a right to reside in the United Kingdom, possibly, but not necessarily, under Article 18 of the Treaty.  

9.	The question whether there has been an accidental omission from European Community legislation can only be answered by looking at the broad framework constructed by the legislation that does exist.  It seems to me to be important that, ordinarily, a pregnant 17-year old brought to the United Kingdom by her parents would have a right of residence as a member of her parents’ family.  In the present case, the claimant had only her father and he was not working but, had he not been from an “A8” country, he would probably have had a right of residence either as an incapacitated worker (see regulations 6(2)(a) and 14(1) of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), giving effect to Article 7(3)(a) of Directive 2004/38/EC) or as the principal carer of his other children who were still in school (see London Borough of Harrow v Ibrahim Case (C-310/08) and Teixheira v London Borough of Lambeth (Case C-480/08), decided since the hearing before me).  As long as he had a right of residence, the claimant would have had a right of residence simply by virtue of being under 21 and his direct descendant (see regulations 7(1)(b) and 14(2), giving effect to Articles 2(2)(b) and 7(2)).

10.	As Mr Edwards argued, the real problem facing the claimant is that she and her father are nationals of an “A8” state to whom the 2004 Regulations applied.  That is why her father does not have a right of residence despite having been a worker.  If she was to be entitled to social assistance of any sort, it was necessary for either her father or her actually to be in work.  Only if one of them had worked in registered employment for a year might there be entitlement to benefits while not working.  The legislation implicitly expects Polish nationals to return to Poland if they wish to receive social assistance.  It is difficult to see any unreasonableness in that approach, since the United Kingdom has opened its labour market to “A8” nationals to a greater extent than it was obliged to by the Treaty of Accession.  In the absence of estrangement, one might expect a 17-year old to move if her parents did.

11.	Does it make any difference that the claimant and her father were estranged?  Even, if they were not “A8” nationals but the claimant’s father had lost a right of residence for some other reason, it seems to me that it would have been difficult to argue that the claimant was the victim of an accidental lacuna in Directive 2004/38/EC   In both R(IS) 4/09 and in Baumbast, it was possible to identify a class of persons (albeit limited), who should have been included within the scope of the relevant directive.  I do not consider that the present claimant can be said to be a member of a class all of whom should clearly have had a right of residence.  On the face of it, a child estranged from her parents does not have a compelling reason to live near them and where her other ties are will vary from case to case.  It happens that, in this case, the claimant has siblings in the United Kingdom but that would not always be the case.  There is no evidence before me as to the degree of estrangement between the claimant and her father or the extent to which it extends to other members of her family; nor as to what family she has in Poland or, which might also be relevant, about the nationality and financial circumstances of the father of her child.  All these are matters which might have a bearing on the reasonableness of expecting the claimant to return to Poland and these circumstances would vary from person to person.  They are not characteristics of the sort of class of person that might be identified in a directive.  There is no suggestion of any relevant financial dependence or relationship to a person who does have a right of residence.

12.	The strongest argument Mr Royston advanced was that the length of time that the claimant had spent in the United Kingdom during the later years of her childhood meant that she was far more integrated into British society than into Polish society.  Paragraphs (17) and (18) of the preamble to the Directive recognise the value of social cohesion and integration and the Directive provides for a right of permanent residence to that end.  However, even if, in the case of a child, any presence in the United Kingdom with his or her parents should be treated as lawful residence for the purpose of establishing a right of permanent residence under Article 16 of Directive 2004/38/EC (implemented by regulation 15 of the 2006 Regulations), the claimant would fail in this case, because five years’ continuous residence is required and continuity was broken by the lengthy absences between 2002 and 2004 (see Article 16(3), implemented by regulation 3).

13.	In any event, I agree with Mr Edwards that the argument that there is a lacuna becomes completely impossible when the Treaty of Accession has the effect that the United Kingdom is entitled to a derogation that has the effect that those who would otherwise be entitled to a right of residence under the directives need not be granted any right of residence at all.

14.	I recognise that “A8” nationals are still citizens of the European Union and I also recognise that a case like the claimant’s could raise Human Rights issues.  Community legislation must, of course, be interpreted in the light of the European Convention on Human Rights but then so must United Kingdom domestic legislation.  Article 18 is expressed as being “subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect”, which justifies refusing to recognise a right of residence where a European Union citizen does not fall within the scope of Directive 2004/38/EC and the omission is deliberate.  R(IS) 4/09 is merely concerned with cases where the omission was not deliberate.  There is no general provision in either Article 18 or, more importantly, the Directive, requiring hard cases to be examined on a case-by-case basis to see whether the refusal to recognise a right of residence would be incompatible with the Convention or, if not actually incompatible with the Convention, would nonetheless be regarded as unduly harsh given the personal circumstances of the claimant.  It seems to me that the reason for that is that individual Member States have a duty to act consistently with the Convention in their own immigration systems and because the European Union is content for individual Member States to judge whether a right of residence should be granted in other cases that do not fall within the scope of the Directive.  I observe that paragraph (6) of the preamble to the Directive expressly leaves the position of extended family members to be “examined by the host Member State on the basis of its own national legislation” and it seems to me that the Directive anticipates that each Member State will have domestic legislation adequate to deal with hard cases falling outside the scope of the provisions in the Directive itself.  Otherwise, there would surely be provision in the Directive itself for doing so.  The same position obtains in relation to nationals of “A8” states.  Where affected by a derogation, they must look to domestic law if they claim a right of residence.

15.	The problem is that the United Kingdom’s legislation does not really make adequate provision, now that entitlement to benefits depends on a person having a right of residence, and the problem appears to be exacerbated by the practice of the immigration authorities.  Domestic immigration legislation does not expressly recognise the concept of a right of residence except in the 2006 Regulations, which implement Directive 2004/38/EC.  However, leave to enter or remain, granted under the Immigration Act 1971, amounts to recognition of a right of residence.  Unfortunately, the immigration authorities regard decisions under the 1971 Act as being matters of immigration “control”, not applicable to most European Union citizens who are free to enter the United Kingdom under regulation 11 of the 2006 Regulations.  They do not seem to appreciate that, since 2004, it has been important for European Union citizens to have decisions that establish not merely a right to be present in the United Kingdom but also a right of residence and that decisions under the 1971 Act are not concerned only with lawful presence but also with lawful residence.  As I have observed in R(IS) 6/08, claimants who do not fall within the Directives but who have an arguable case for being allowed to claim benefits in the United Kingdom may need to put pressure on the immigration authorities to make decisions under the 1971 Act, if only so that they are not worse off than people from outside the European Union.  It cannot be assumed that, so far as rights of residence are concerned, European Community law is always at least as generous as domestic law.  However, there is no express provision for decisions under the 1971 Act to be made retrospective to the date of a relevant claim for benefit and such decisions are not usually treated as retrospective.  It seems to me that there is a clear need for the benefit authorities to be able to refer arguable cases to the immigration authorities for a decision that will be effective from the date from which benefit was claimed or else for the benefit authorities themselves to be able to exercise an element of discretion in meritorious cases based on personal circumstances falling outside the strict limits of the Directive and the 2006 Regulations.  In my view, the current legislation and practice shows a lack of “joined-up thinking” between the Department for Work and Pensions and the Home Office.

16.	However, I cannot remedy the defects in these appellate proceedings.  The Secretary of State for Work and Pensions is not entitled to grant a right of residence.  He may find that one has been conferred by legislation, including Article 18 of the Treaty which enables him to fill a lacuna in the Directive, and he may find that one has been granted by a decision of the domestic immigration authorities, but he has no power to grant one.  The United Nations Convention on the Rights of the Child may be a mater to which domestic immigration authorities may have regard but it does not itself confer any right of residence and it does not assist with the interpretation of European Community legislation which leaves cases based on the particular personal circumstances of claimants to be dealt with by domestic authorities.  The appeal tribunal was in the same position as the Secretary of State and so am I.

17.	The fact of the matter is that the claimant does not fall within a class of persons granted a right of residence by legislation and, in the absence of a decision by a competent authority granting her leave to remain in the United Kingdom in the light of her personal circumstances, she has no right of residence.  Accordingly, the appeal tribunal reached the only decision open to it, albeit that it erred in its approach.

18.	I should add that I must not be taken to be suggesting that, upon a full examination of the facts of her case, the claimant ought to have been granted leave to remain in the United Kingdom.  For one thing, I do not really know enough about her circumstances.  However, her case is not without some merit, particularly as the claimant’s father may have been encouraged to stay in the United Kingdom with his family by the erroneous award of income support in March 2005, and it ought to have been possible for it to be heard.  Moreover, it may well be that leave to remain was required only for the limited period when the claimant could not reasonably have been expected to work towards the end of her pregnancy and immediately after the birth of her child.  Had she then resumed work as a worker and registered under the 2004 Regulations within her first month of employment, she would have become entitled to benefits consistent with her working.

19.	Finally, I wish to apologise for the very considerable delay there has been in this case.  As the parties know, much of the delay before the hearing was to await the decision of the House of Lords in Zalewska, given the challenge to the 2004 Regulations made in this case.  Had Zalewska been decided differently, there might have been a different outcome to this case, depending on the basis of the decision.  The delay since the hearing was partly because I was hoping for some assistance from the European Court of Justice in Ibrahim and Teixheira, which were decided a little later than I had at one time expected, and because I had another case raising a similar jurisdictional issue.  In the end, I was not assisted by waiting and I accept that there has been additional unjustifiable delay. 

MARK ROWLAND
2 July 2010