[2006] UKSSCSC CIS_3573_2005 (12 May 2006)

 DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS

			12/13th January and 23/24 February 2006

CIS/3573/2005

Representation:

Mr Jason Coppel of Counsel for the Secretary of State.

Mr Stephen Knafler of Counsel for the claimant.

1.	Our decision is that the decision of the appeal tribunal is erroneous in point of law.  We set it aside and we make the decision we consider that the tribunal should have given.  It is that the claimant is a “person from abroad” within the definition of regulation 21(3) of the Income Support (General) Regulations 1987 as she has no right to reside in the United Kingdom.  Accordingly her applicable amount of Income Support, for the period 13 May 2004 until 2 August 2004 is nil.  

2.	This is an appeal by the Secretary of State, with the leave of the chairman, from the decision of an appeal tribunal dated 20 June 2005.  As the Chief Commissioner considered that this appeal and the appeals in CPC/2920/2005, CH/2484/2005, CIS/2680/2005 and CIS/2559/2005 involved questions of law of special difficulty, he directed that the appeals be dealt with by a Tribunal of Commissioners, in accordance with the provisions of section 16(7) of the Social Security Act 1998.  The Tribunal of Commissioners held oral hearings on 12 and 13 January 2006, 23 and 24 February 2006.  These hearings covered the first four appeals while the hearing in CIS/2559/2005 was held on 29 March 2006.

3.	The claimant is a Swedish national, though born in Somalia.  She arrived in the UK from Sweden on 1 March 2004.  She states that the reason why she has come to the UK is because she has family here and she intends to remain permanently in the UK.  She is not a worker.  On 13 May 2004 and 2 August 2004 she claimed income support (IS) in respect of herself and her three children respectively.  On 21 June 2004 and 23 August 2004, the decision maker decided that the claimant did not have the right to reside in the UK and as a consequence was not entitled to IS. She appealed to an appeal tribunal which heard and allowed her appeal on 20 June 2004.

4.	The tribunal made the following findings of fact:

“1.	[The claimant] came to the United Kingdom on 01 03 04 with her 3 children.

2.	[The claimant] is a citizen of Sweden.  She was born in Somalia.  She subsequently went to Sweden as a refugee and was granted Citizenship of that country.

3.	[The claimant] has not worked during her time in the United Kingdom.

4.	[The claimant] claimed Housing and Council Tax Benefit on 01 06 04.  She received a decision refusing her claim on 05 10 04 and that decision was reconsidered but reconfirmed on 08 02 05.  

5.	[The claimant] had a fixed and settled intention of residing in the UK by 01/06/04.”

5.	The decision of the tribunal was in the following terms: 

“The decision of the Appeals Tribunal sitting at the Leicester Venue of the Appeals Service on 20 06 05 is: -

1.	[The claimant] is to be treated as habitually resident in the United Kingdom for the purposes of Housing Council Tax Benefit from 01 06 04 as she has the right to reside in the United Kingdom as of that date.”

There was no finding in relation to IS.  However the whole tenor of the reasoning made it clear that the tribunal intended to find in favour of the claimant and decide that she was entitled to IS.

6.	On any footing, that decision is wrong since, although under the reference CH/2484/05 there was, and is, an appeal regarding housing benefit and council tax benefit, this present appeal was concerned solely with IS.  Slip though it may be, it is fatal to the decision of the tribunal which must therefore be set aside – as both counsel agree.  It is, however, always open to us to substitute a decision on the question of IS under section 14(8)(a)(i) of the Social Security Act 1998, on the basis of the findings of fact of the tribunal set out at paragraph 4 herein and without making any additional findings of fact.

7.	At the hearing of this appeal the claimant was represented by Mr Stephen Knafler, of Counsel, instructed by the Leicester Law Centre while the Secretary of State was represented by Mr Jason Coppel, of Counsel, instructed by the Office of the Solicitor for the Department for Work and Pensions.  

8.	The relevant domestic legislation is to the following effect.  Section 124(1) of the Social Security Contributions and Benefits Act 1992 provides that 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”.  Regulation 21(1) and paragraph 17 of Schedule 7 of the Income Support (General) Regulations 1987 (SI 1987/1967) make it clear that the applicable amount of IS for a claimant who is “a person from abroad” is “nil”.  

9.	However, in order to find out whether a person is “a person from abroad” it is necessary to have regard to the definition of “person from abroad” set out in regulation 21(3) of the Regulations.  The relevant part of regulation 21(3) is in the following terms:

	“(3)  Subject to paragraphs (3F) and (3G) in Schedule 7 …

“person from abroad” … means a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, but for this purpose, no claimant shall be treated as not habitually resident in the United Kingdom who is –

(a)  a worker for the purposes of Council Regulation (EEC) No 1612/68 or (EEC) No 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No 68/360/EEC or No 73/148/EEC or a person who is an accession State worker requiring registration who is treated as a worker for the purposes of the definition of “qualified person” in regulation 5(1) of the Immigration (European Economic Area) Regulations 2000 pursuant to regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004; or

(b)  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; or 

(c)  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; or 

(d)  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, explusion or other removal by compulsion of law from another country to the United Kingdom; …”

10.	However, the definition of “person from abroad” is specifically subject to paragraph (3G), which is an amendment inserted by SI 2004/1232, regulation 3(c) with effect from 1 May 2004.  Regulation 21(3G) is in the following terms:

“(3G)  In paragraph (3), for the purposes of the definition of a person from abroad no person shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland if he does not have a right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.”

The references in the legislation to the Channel Islands, etc are not relevant to the present case.  Accordingly we have to consider whether the claimant was or was not habitually resident in the United Kingdom and also the related issue of whether the claimant has a right to reside in the United Kingdom.

11.	The reason for this change of heart is that the Government took the view that “the habitual residence test” by itself was not sufficient to stem the tide of persons wishing to come to the United Kingdom, not for the purposes of work, but to live off benefits and that problem not only applied to the existing countries within the European Union but, more particularly, to persons from the ten countries which acceded to the union on 1 May 2004.  The reasons can be found in the Statement by the Secretary of State in accordance with section 174(2) of the Social Security Administration Act 1992 – see paragraphs 26 to 32 herein. 

12.	That the claimant, leaving aside the provisions of regulation 21(3G), actually habitually resides in the United Kingdom, is accepted by both parties. The relevant date on which she attained habitual residence was presumably the date adopted by the tribunal, namely, 1 June 2004.  In these circumstances the issues that are required to be resolved are:

(i)	Did regulation 21 (3G) of the Income Support (General) Regulations 1987 merely qualify sub-paragraphs regulation 21(3)(a)-(d) in the definition of “persons from abroad” or was it general in its application?

(ii)	If it is quite general in its application, did the claimant:

(a)	have an independent right under European Law to reside in the United Kingdom; and or

(b)	have a right under United Kingdom domestic law to reside in the United Kingdom?

(iii)	Does regulation 21(3G) contravene Article 12 of the Treaty of Rome by virtue of being discriminatory? 

(iv)	If so, it is justified i.e. proportionate?

All these questions presuppose a finding as to what a right to reside may be.

13.	Since this was the Secretary of State’s appeal, we thought it appropriate to hear Mr Coppel on his behalf first.  Accordingly we did so, hearing Mr Knafler in response later.

14.	Mr Knafler submitted that regulation 21(3G) qualifies only sub-paragraphs (a) to (d) which relate to circumstances in which no claimant should be treated as not habitually resident in the United Kingdom in accordance with the circumstances specified in each of these paragraphs.  He distinguished between a person who is actually habitually resident in the United Kingdom from a person who is deemed to be habitually resident therein.  Accordingly, his submission was that if the claimant, as in the present case, was found to be habitually resident in fact on 1 June 2004, she does not require to be deemed to be habitually resident in terms of regulation 21(3G).

15.	Mr Coppel’s submission was that whether or not a claimant is or is not habitually resident is a single question, namely, is the claimant habitually resident?  He submitted that it was both a factual and a legal test and that, in applying the test in the context of regulation 21(3) as a whole, whether a claimant has a right to reside must be considered in every case.  

16.	At first sight Mr Knafler’s argument is potentially persuasive, as it would result in the words “shall be treated” in regulation 21(3) and 21(3G) being interpreted in exactly the same way.  However, in our view such a construction renders the right to reside test entirely otiose, since all those persons who are deemed to be “habitually resident”, namely, those mentioned in sub-paragraphs (a) to (d) of the definition of “person from abroad”, have a right to reside whether as qualified persons under regulations 5 and 14 of the Immigration (European Economic Area) Regulations 2000 or under other provisions of immigration law.  Moreover, as was pointed out by Mr Coppel, the definition taking into account the sub-paragraphs depends on a double negative, which has the effect of placing within the definition a restriction on the universality of “persons from abroad” and in our judgment it is intended to have no further effect.  We, therefore, reject the argument of Mr Knafler based on “treating” or “deeming”.

17.	In our judgment, it is apparent that para (3G) is of general application and not just limited to sub-paras (a), (b), (c) and (d), of the definition of “person from abroad” in regulation 21(3).  Moreover, as Mr Coppel pointed out, all those persons in (a), (b), (c) and (d) have in any event a right to reside independently and, to limit sub-para (3G) to those four categories of persons only would clearly make (3G) serve no useful purpose.

18.	In order to deal with the specific issues in the case, in our view it is necessary to determine whether the claimant has a right to reside in the United Kingdom.  The words “right to reside” are not defined in the Income Support (General) Regulations 1987.  In any event, we consider it necessary to assess the claimant’s right to reside by starting off with her rights enshrined in European Law, in particular the relevant parts of the Treaty of Rome.  Article 17(1) is in the following terms: 

“Citizenship of the Union is hereby established.  Every person holding the nationality of a Member State shall be a citizen of the Union.”

The claimant in this case is undoubtedly a citizen of the Union.

19.	Article 18 sets out certain rights of citizens of the Union and, in particular, Article 18(1) of the Treaty states as follows:

“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.”

20.	In particular it seems to us that relevant “limitations and conditions” have been laid down by Council Directive 90/364, which have restricted the rights of citizens of the Union, providing that:

“Whereas beneficiaries of the right of residence must not become an unreasonable burden on the public finances of the host Member State” … Member States … shall grant the right of residence to nationals of Member States who do not enjoy this right under other provisions of Community Law and to members of their families … provided that they themselves and the members of their families are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence.”

21.	The United Kingdom government implemented a number of Directives, including Council Directive 90/364/EEC on the right of residence, by introducing the provisions of the Immigration (European Economic Area) Regulations 2000 – SI 2000/2326.  Regulation 14(1) provides as follows:

“A qualified person is entitled to reside in the United Kingdom, without the requirement for leave to remain under the [Immigration Act 1971] , for as long as he remains a qualified person.”

Regulation 5(1) provides:

“In these Regulations, “qualified person” means a person who is an EEA National and in the United Kingdom as –

(a)	a worker;
(b)	a self-employed person;
(c)	a provider of services;
(d)	a recipient of services;
(e)	a self-sufficient person;
(f)	a retired person;
(g)	a student; or
(h)	a self-employed person who has ceased activity;
	or who is a person to whom paragraph (4) applies.”

Paragraph (4) deals with family members and people who have died and is therefore not directly relevant to the issues in this case.

22.	As a matter of fact the claimant in the present case is a non-economically active person who is, accordingly, not “a qualified person” under the Regulations.  

23.	The Immigration (European Economic Area) Regulations 2000 deal with various aspects of immigration including the right of entry – regulation 12, the right of residence – regulation 14, and removal – regulation 21.  Regulation 14(1) in particular states that:

“A qualified person is entitled to reside in the United Kingdom, without the requirement for leave to remain under the 1971 Act, for as long as he remains a qualified person.”

Accordingly, the right of residence, having been restricted to qualifying persons, of whom the claimant is not included by virtue of her circumstances, in our view, regulation 21(3G) of the Income Support (General) Regulations 1987 makes it abundantly clear that persons in her circumstances cannot be treated as habitually resident in the United Kingdom, despite being actually habitually resident at the relevant time.

24.	However, it must be remembered that the claimant has not only particular rights under Council Directive 90/364/EEC and the Immigration (European Economic Area) Regulations 2000 but also rights under Article 12 of the Treaty of Rome, which provides:

“Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on the grounds of nationality shall be prohibited.”

Mr Coppel readily accepted, and in our view correctly, that the definition of “persons from abroad”, by virtue of the provisions in regulation 21(3G) of the Income Support (General) Regulations 1987, was indirectly discriminatory because it was more easily satisfied by United Kingdom nationals than by non-nationals.  In these circumstances Mr Coppel accepted that there requires to be an objective justification for the indirect discrimination.

25.	Mr Coppel submitted that there was such justification.  In particular, he relied on the contents of the statement by the Secretary of State for Work and Pensions, in accordance with section 174(2) of the Social Security Administration Act 1992, in relation to the Social Security (Habitual Residence) Amendment Regulations 2004 (SI 2004/1232).  A section 174(2) statement shows:

“(a)	the extent (if any) to which [the Secretary of State] has, in framing the regulations, given effect to the [Social Security Advisory Committee’s] recommendations; and

 (b)	in so far as effect has not been given to them, his reasons why not.”

This statement contained in Command Paper Cm 6181 has explained the policy reasons for the insertion of paragraph (3G) in regulation 21 of the Income Support (General) Regulations 1987.  

26.	The statement as a whole has relevance but perhaps it is appropriate to quote the following portions:

	“…

4.  	The underlying purpose of the Regulations is to safeguard the UK’s social security system from exploitation by people who wish to come to the UK not to work but to live off benefits.  At the same time, the Regulations will allow those who come here genuinely to work to have access to income-related benefits.

5.	The Regulations are also intended to support the Government’s policy of opening the United Kingdom’s labour market immediately to workers from the ten countries which will accede to the European Union on 1 May 2004.  The Government recognises that any resulting influx of people from abroad might lead to additional and inappropriate demands on the UK’s social security system.  That is why we are laying the Regulations to come into effect from 1 May.

…

7.	The Government has been concerned for some time about the potential for abuse of the UK’s benefit system.  Abuse takes many forms, including both unlawful fraud and lawful exploitation, and is practised not just by people from abroad but also by people who have always lived in the UK.  The Government’s concern about those from abroad relates not only to nationals of the acceding States but also to people moving from the current EU Member States: hence our recent signing of Memoranda of Understanding with the Netherlands and the Republic of Ireland.

8.	It is against this background that work has been under way for some time on how best to reinforce controls on access to the income-related benefits in a way which neither penalises legitimate claimants nor contravenes EC law.  But, as the Committee itself has acknowledged, this is a difficult and complex area involving domestic and EC law and potentially touching upon the European Convention on Human Rights.  The Government has been seeking a viable solution which might meet the main objectives and steer a middle way between meeting the financial needs of people who might find themselves in this country without other means of support and protecting the UK tax-payer from a potentially limitless financial burden.

…

13.	The habitual residence test was introduced into Income Support, Housing Benefit and Council Tax Benefit in August 1994.  It was extended to income-based Jobseeker’s Allowance (JSA) when JSA came into being from October 1996 and to State Pension Credit when that was introduced in October 2003.  The purpose was to prevent “benefit tourism” by people with little or not recent connection with the UK – such as students – who visited the UK for short periods and funded their stay in the UK by claiming income-related benefits.  Previously, nationals from the European Economic Area (EEA) had been able to come to the UK and claim income-related benefits for up to six months.  In comparison, UK nationals going to other EEA states could not access their benefit systems so easily.

14.	The Government believes that the habitual residence test serves a useful purpose to the limited extent of discouraging “benefit tourism” among people from abroad who have no intention of looking for or taking up work or of remaining here.  But it cannot and was never intended to restrict longer-term access to the income-related benefits payable out of general taxation among people who, for various reasons, may decide to live indefinitely in the UK without being economically active.

…

17.	The Government believes that it is not unreasonable to expect that, whatever their nationality, people should show that they have a right to reside in the UK before being entitled to benefits funded by the UK tax-payer: indeed, correspondence that I and my Ministerial colleagues have received suggests that the public generally expects this.  The proposed regulations are thus intended to fill a gap in measures to safeguard the public purse against exploitation by people with no right to reside here, irrespective of nationality.  Their purpose is therefore different from the more limited purpose of the habitual residence test.

…

31.	Because there is uncertainty about the exact size of the effect, the Government believes that it is prudent to take precautions in order to safeguard the benefit system from possible exploitation.  Not to take precautions would be considered complacent or even failing in our duties.  I do not believe that the lack of firm figures should hold us back from acting now.  We shall, of course, be monitoring the impact of enlargement on both the labour market and the benefit system, as explained in the memorandum to the Committee.  And, as we get more concrete information, we shall review our response. …”

27.	Mr Coppel also submitted that the following words of Sedley LJ, at paragraph 47 of Westminster City Council v Morris [2005] EWCA Civ 1184 were relevant. He stated:

“… The problem is in all significant respects a problem of foreign nationals either coming to this country (benefit tourism) or outstaying their leave to be here (irregular status) in order to take advantage of the priority housing status accorded to homeless families.  Measures directed at this, I accept, require no explicit justification, whether because they are an aspect of immigration control or because they are an obviously legitimate response to a manifest problem. …”

Accordingly, he submitted that there need not be explicit justification for the policy in the present circumstances.

28.	We consider that the Secretary of State’s statement is material to the issues in the present case.  The statement does not seek to interpret the amended regulations.  It seeks to demonstrate the policy decision behind the insertion of paragraph (3G) in regulation 21 and it is something that should be taken into account when considering objective justification.   That we do and find that the policy as stated in the statement justifies the indirect discrimination for the reasons set out below.  In any event, even if we had not considered the statement for the purposes of justification relevant, Sedley LJ’s remarks, quoted at paragraph 27 herein, suggest to us, in the context of the circumstances of this case, that no explicit justification by the Government of the policy is required as regulation 21(3G) is “an obvious legitimate response to a manifest problem”.

29.	Mr Knafler submitted that, as the claimant, as a European Union citizen, was lawfully present in the United Kingdom, such lawful presence must equal a right to reside.  If this were not correct, he submitted, the United Kingdom would be in breach of the European Convention on Social and Medical Assistance 1953 and, in particular, Article 1, which states:

“Each of the Contracting Parties undertakes to ensure that nationals of the other Contracting Parties who are lawfully present in any part of its territory to which this Convention applies, and who are without sufficient resources, shall be entitled equally with its own nationals and on the same conditions to social and medical assistance (hereinafter referred to as “assistance”) provided by the legislation in force from time to time in that part of its territory.”

He conceded that the Convention, to which the United Kingdom is a signatory, has no direct force in United Kingdom law.  However, he submitted that, if there is any ambiguity in domestic provisions, it must be construed compatibly with the Convention, and this principle of interpretation is similar to the way that the European Convention on Human Rights was considered to be relevant when interpreting domestic law before the introduction of the Human Rights Act 1998.  

30.	However, we conclude that the provisions of domestic law are not ambiguous but, instead, are entirely clear and are in accordance with the terms of the Treaty of Rome and the EEC Directive 90/364.  

31.	Both the Treaty of Rome, as amended, and EEC Directive 90/364 make it entirely clear that national governments are entitled to restrict the right to residence of European Union nationals and to restrict any social assistance to them, even if they are, in fact, resident under a lawful right of entrance and no steps have been taken for their removal.  Mr Knafler submitted that the reality of the situation is that no steps will ever be taken to remove the claimant as, even if she were removed, she would have an immediate right of re-entry.  However, in our view, having a right of re-entry is somewhat different to fulfilling the conditions for social assistance.

32.	In our view, the policy outlined in Command Paper Cm 6181 is one which is well within the margin of discretion that a national government is entitled to include in its regulations.  In particular, we consider that the regulations are consistent with the scope within which a Member State is allowed to operate in light of the specific terms of the Treaty of Rome and the EEC Directive 90/364.

33.	Recognition of limitations on the extent of the right to reside has been recognised by the European Court of Justice in Trojani C-456/02, where the Court stated:

“31.	It must be recalled that the right to reside in the territory of the Member States is conferred directly on every citizen of the Union by Article 18(1) EC (see Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 84).  Mr Trojani therefore has the right to reply on that provision of the Treaty simply as a citizen of the Union.

32.	That right is not unconditional, however.  It is conferred subject to the limitations and conditions laid down by the Treaty and by the measures adopted to give it effect.

33.	Among those limitations and conditions, it follows from Article 1 of Direction 90/364 that Member States can require of the nationals of a Member State who wish to enjoy the right to reside within their territory that they themselves and the members of their families be covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of that State during their period of residence.

34.	As the Court has previously held, those limitations and conditions must be applied in compliance with the limits imposed by Community law in accordance with the general principles of that law, in particular the principle of proportionality (Baumbast and R, paragraph 91).

35.	It follows from the judgment making the reference that a lack of resources was precisely the reason why Mr Trojani sought to receive a benefit such as the minimex.

36.	In those circumstances, a citizen of the Union in a situation such as that of the claimant in the main proceedings does not derive from Article 18 EC the right to reside in the territory of a Member State of which he is not a national, for want of sufficient resources within the meaning of Directive 90/364.  Contrary to the circumstances of the case of Baumbast and R (paragraph 92), there is no indication that, in a situation such as that at issue in the main proceedings, the failure to recognise that right would go beyond what is necessary to achieve the objective pursued by that directive.”

In that case, like the present one, Mr Trojani was not economically active and was claiming welfare benefits but, under provisions within EEC Directive 90/364, could not claim a right of residence by virtue of European Union law.  Accordingly we take the view that our conclusion, that domestic UK law, as in this instance set out in regulation 21(3), is not inconsistent with Article 18(1) of the Treaty of Rome and Directive 90/364, is compatible with the jurisprudence of the European Court.   (In Trojani the decision ultimately turned on the fact that he had a right to reside in Belgium under Belgium law, not European law, as he in fact had been issued a residence permit).  We do not consider that Baumbast which was decided on its own distinctive and peculiar facts advances the matter before us further.  Mr Coppel in the associated case CIS/2559/2005 heard on 29 March made reference to the Commission v Belgium C-408/03 which was issued on 23 March 2006.  We agree with paragraph 5 of his supplementary written submission:

“So far as it is relevant to the present cases, Commission v Belgium is therefore in line with earlier ECJ case-law.  However, as a recent judgment of the Grand Chamber of the Court, the Secretary of State felt that the Commissioners should be made aware of it.”

34.	Persons can have a right to reside in the United Kingdom in circumstances other than those contained in the Immigration (European Economic Area) Regulations 2000 as, for example, people can have certain rights to reside under the Immigration Act 1971.  However, the claimant’s presence in the United Kingdom arose out of a right of entry under regulation 12 of the Immigration (European Economic Area) Regulations 2000, which provides that a European Economic Area “national must be admitted to the United Kingdom, if he produces, on arrival, a valid national identity card or passport issued by an EEA State”.  The factual and legal situation in the present case is that the claimant was lawfully present in the United Kingdom and that no steps had been taken to remove her.   

35.	Mr Knafler demonstrated to us that it would be very difficult, if not well nigh impossible, to remove the claimant against her will (see paragraph 31). In addition, even if she were removed, she would have an immediate right of re-entry. He, therefore, submitted that her lawful presence in the United Kingdom was the same or the equivalent of having a right to reside.  This pragmatic submission, however, is undermined by the fact that if it were correct, regulation 5 (relating to the definition of qualified person) and regulation 14 (relating to right of residence) of the Immigration (European Economic Area) Regulations 2000 would be entirely pointless and otiose.  Accordingly, we cannot accept that de facto presence is the same as a right to residence.  The fact that a person is at liberty to stay in the United Kingdom does not, in our view, per se, confer a right.

36.	Mr Knafler also submitted that being lawfully present is the equivalent of, if not the same as having a right to reside.  He submitted that, at the very least, the legislative provisions are ambiguous enough for lawful presence to equate with right to residence.  In our view, there is no such ambiguity and the statutory scheme which has permitted people to be lawfully in the United Kingdom without having a right to reside is perfectly understandable and as we have indicated, in relation to regulation 21(3G), justified, in the circumstances.  It must be seen in the context where the various Member States have taken different approaches to the problems that arise out of emigration and immigration between Member States.

37.	As both Counsel pointed out, the United Kingdom, Sweden and the Republic of Ireland have accepted full mobility of labour.  Other Member States have taken a much more restrictive approach at present, although these restrictions will eventually be eased.  However, it is not for Social Security Commissioners to adjudicate upon the propriety of the United Kingdom government’s approach.  It is simply to resolve the legal issues which arise in the case.  The only question to be answered is whether the legislative scheme is legal.  We conclude that it is.

38.	Accordingly we also conclude that:

(i)	regulation 21(3G) of the Income Support (General) Regulations 1987 does not merely qualify regulation 21(3)(a)-(d) in the definition of “persons from abroad” but is general in its application;

(ii)	(a) the claimant did not have a right under United Kingdom domestic law to reside in the United Kingdom, (b) nor did she have a right under European law to reside in the United Kingdom as any such right was restricted by European law and, in particular, EEC Directive 90/364.  

(iii)	regulation 21(3G) is discriminatory under Article 12 of the Treaty of Rome;

(iv)	however, any discrimination is objectively justified and is proportionate.

(Signed)
D J MAY QC
Commissioner

(Signed)
J M HENTY 
Commissioner

(Signed)
HIS HONOUR JUDGE MARTIN QC
Chief Commissioner, Northern Ireland
Sitting as a Deputy Commissioner in Great Britain

Date:  12 May 2006