[2006] UKSSCSC CPC_2920_2005 (12 May 2006)
 
DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS

Representation:

Mr Stephen Knafler of Counsel for the claimant

Mr Jason Coppel of Counsel for the Secretary of State

1.	Our decision is that the decision of the appeal tribunal given at Bristol on 11 May 2005 is not erroneous upon a point of law.  The appeal fails and, accordingly, we dismiss it.

2.	This is an appeal by the claimant with the leave of the chairman from the decision of an appeal tribunal dated 11May 2005.  As the Chief Commissioner considered this case and the appeals in CIS/3573/2005, CH/2484/2005, CIS/2680/2005 and CIS/2559/2005 involved questions of law of special difficulty, he directed that the appeals be heard 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 and 23 and 24 February 2006.  These hearings covered the appeals in the first four appeals and the hearing in CIS/2559/2005 was held on 29 March 2006.

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

4.	The claimant is a Norwegian national born in Somalia.  He had lived in Norway since 15 December 94 having arrived there with his two children as refugees.  He was granted Norwegian citizenship in March 2002.  His date of birth is 5 December 1936 and he arrived in the United Kingdom on 20 April 04 and claimed Pension Credit on 14 June 2004.  On 14 June 2004, the decision-maker refused the claim.  The claimant appealed to the appeal tribunal which heard and dismissed the appeal on 11 May 2005 and decided as follows, confirming the decision of the decision-maker:

“[The claimant] is not entitled to Pension Credit.  That is because he does not have the right to reside in the United Kingdom and is consequently not habitually resident in the UK.  He fails to meet all the conditions of entitlement to make a valid claim to Pension Credit”.

5.	The material facts found by the tribunal, none of which is in issue, were as follows: 

“[The claimant] was originally from Somalia.  He is now a citizen of Norway, having lived there since 15/12/94.  He and his 2 children arrived as refugees.  His first wife had died in Somalia, having been shot in the course of the civil war in 1991.

	He was given Norwegian citizenship in March 2002.

	He is aged 69, his date of birth being 5/12/36.

	“[He] has in Norway a wife whom he married in 1994 who joined him in Norway in 1999, and 4 young children, one born since he left.

	He has not worked in Norway.  He supported his family on benefit.  

	His daughter, [A], was born on 4.1.88.  She was born in Somalia and she had lived with him in Norway.  She had not wished to stay in Norway.  She chose to leave Norway to go to the UK.  Neither he nor she are UK nationals.  Neither had visited the UK before they came.  [The claimant] arrived on 20.4.04.  His daughter had arrived earlier, possibly only a few days earlier.  

	He does not speak English.

	He does not wish his daughter to live alone in a foreign country.  He came intending to find and persuade her to return.  He did not plan to stay and made no advance preparation to move her. 

	He quickly found her within a week and she would not return.  

	He then decided that he would stay with her to protect her.  

	His wife indicated that she would not join him – she did not dissent from him leaving, but she would not join him.  She is bringing up their 4 young children alone.  He has described himself as having many family problems in Norway.  

	His oldest son also remains in Norway.  He is an adult and independent.  

	[The claimant] has stayed now for over a year.  

	English medical cards were issued on 16.7.04.  He has been awarded child benefit from 10.5.04. 

	His daughter speaks a little English.  She started an English course in July 2004.  

	They were living at the date of claim and in July 2004 at the home of Jamal Mohomud who is the tenant at the address from which the claim was made.   Mr Mohomud is the son of an old friend of [the claimant].  Mr Mohomud is the only person [the claimant] knew in the UK on arrival.  

	He claimed pension credit by a form signed on 14.6.04 and hand endorsed received 21.6.04.  

	He came without resources and without possessions.  He has stayed with and been supported by members of the Somali community, without having a settled home throughout the period since his arrival, and without having been a member of the same household as his daughter throughout.   Those who helped him did not have the space to accommodate both.  He was living at the time of his statement on page 135 with Ms [N… H…], whose father he had known in Somalia.  

	He has looked for work here unsuccessfully, since the decision on income support was not seeking work at that time.  

[The reference to “income support” is presumably a reference to Pension Credit]

	His daughter [A] started studying at the City of Bristol College in Health and Care on 6.9.04.  She had earlier studied English.  She had a part-time post as a voluntary youth worker from November 2004 to February 2005.  That was unpaid work but small sums were provided for travel expense and subsistence.  

	He has no means of self-support.

	He did not come to depend on his daughter.

	She undertook a college course to help her learn English and wishes to continue her studies.

	She has supported him in the general sense and she has shared what she has got from her voluntary work. 

	They have been supported by members of their own community.”

6.	The relevant domestic legislation is to the following effect.   Section 1(1) of the State Pension Credit Act 2002 provides that a benefit to be known as State Pension Credit is payable in accordance with the following provisions of the Act.  Section 1(2) provides that a claimant is entitled if he is in Great Britain he has attained a qualifying age and he satisfies the conditions as to guarantee credit contained in section 2(1) or savings credit in section 3(1) and (2).  Section 1(5) provides that regulations may be made for the circumstances in which a person is to be treated as being or not being in Great Britain.  Regulation 2 of the State Pension Credit Regulations 2002 SI 2002/1792 provides:

	“(1)	Subject to paragraph (2) a person is to be treated as not in Great Britain if he is not habitually resident in the United Kingdom … but for this purpose, no person is to be treated as not habitually resident in the United Kingdom who is – 

[The regulation continues by setting out circumstances which do not apply to the instant case.]

	(2)	For the purposes of treating a person as not in Great Britain in paragraph (1) no person shall be treated as habitually resident in the United Kingdom…if he does not have a right to reside in the United Kingdom…”

7.	Paragraph (2) of regulation 2 was introduced as from 1 May 2004 by regulation 5 of the Social Security (Habitual Residence) Amendment Regulations 2004 – SI 2004/1232.  A similar provision is to be found in relation to other means tested benefits.  This change was effected because 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.  The reasons can be found in the Statement by the Secretary of State, which was prepared for the purposes of section 174(2) of the Social Security Administration Act 1992 (see our decision in CIS/3573/2005).

8.	In deciding the appeal the tribunal recorded the following:

“Mr King, [the claimant’s] representative conceded that the claimant ‘could not be treated as’ habitually resident.  No argument was presented on the rights of residence of a work seeker or that [the claimant] was a work seeker.  The tribunal was not asked to consider (a) or (e) of regulation 2(1) on the evidence that concession was properly made.  Mr King suggested that [the claimant] might be protected as a dependant of his daughter on the basis that she qualified in person but plainly he did not arrive or remain on that basis.  Nor was she self-sufficient and able to support him at any stage with which the tribunal is concerned.  The evidence does not show that she was a qualified person.”

It would appear from the tribunal’s reasoning that the issue before it was as follows:

“The issue arising is whether ‘shall be treated as habitually resident’ refers to anyone whether habitually resident or not, or whether it refers to only those whom paragraph (1) requires to be ‘treated as’ habitually resident.”

9.	As we understand the decision, it decided that his factual habitual residence did not prevent the claimant not being treated as habitually resident upon the basis that he did not have a right to reside.  For ourselves, despite Mr Knafler’s attempts to persuade us otherwise, we cannot accept that the effect of sub-paragraph (2) of the regulations omits from its scope someone who is habitually resident being treated as if they are not habitually resident if they fell within the circumstances set out in that paragraph.  On the basis of the argument presented to the tribunal, we do not accept that they can be said to have erred in law.  The same argument was advanced in CIS/3573/2005.  We set out our conclusion on it in paragraphs 16 and 17 therein, which we adopt for the purposes of the decision also.  The provisions in regulation 2(1) and (2) are broadly equivalent and, in our view, identical in substance to those in regulation 21(3) and 21(3G) of the Income Support (General) Regulations 1987 SI 1987/1967.  

10.	Mr Knafler advanced further arguments, which were not before the tribunal, before us.  These submissions relied on European Union/European Economic Area law and were based upon the proposition that the claimant had a right to reside because of the direct application of European Union Directive 90/364.  There was no argument based on the claimant being a qualified person under the 2000 Regulations, which Mr Knafler did not seek to rely upon.  Indeed Mr Knafler accepted that the claimant was not a “qualified person” for the purposes of these regulations.  Directive 90/364, after the appropriate recital, provides in Article 1 as follows:

	“1.	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….provided that they themselves….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.”

11.	In the course of submissions to us, we raised with the parties whether the Directive had any application to a citizen of Norway, such as the claimant.

12.	It was submitted that the means whereby that Directive is made applicable are to be found in the Oporto Agreement ratified by a Decision of the Council and the Commission dated 13 December 1993.  It was said that this treaty had force in United Kingdom domestic law by virtue of sections 1(1)(m) and 2(1) of the European Communities Act 1972 as amended.  We accept that the treaty had force for the reasons stated.  A copy of the very lengthy Oporto Agreement has been provided for us.  So far as relevant, the Agreement provides:

“REAFFIRMING the high priority attached to the privileged relationship between the European Community its Member States and the EFTA States which is based on proximity, long-standing common values and European identity; 

DETERMINED to contribute on the basis of market economy to world-wide trade liberalisation and cooperation in particular in accordance with the provisions of the General Agreement on Tariffs and Trade and the Convention on the organisation for Economic Cooperation and Development.

CONSIDERING the objective of establishing a dynamic and homogenous European economic area based on common rules and equal conditions of competition and providing for the adequate means of enforcement including at the judicial level and achieved on the basis of equality and reciprocity and of an overall balance of benefits, rights and obligations for the Contracting Parties;

DETERMINED to provide for the fullest possible realisation of the free movement of goods, persons, services and capital within the whole European Economic Area, as well as for strengthened and broadened cooperation in flanking and horizontal policies; …

WHEREAS in full deference to the independence of the courts the objective of the Contracting Parties is to arrive at, and maintain, a uniform interpretation and application of this Agreement and those provisions of Community Legislation which are substantially reproduced in this Agreement and derive at an equal treatment of individuals and economic operators as regards the four freedoms and the conditions of competition;

Part III Chapter 1 Article 28 provides:

	“1.	Freedom of movement for workers shall be secured among EC Member States EFTA States.

	2.	Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of EC Member States and EFTA States as regards employment remuneration and other conditions of work and employment.

	3.	It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

	(a)	to accept offers of employment actually made;

	(b)	to move freely within the territory of EC Member States and EFTA States for this purpose;

	(c)	to stay in the territory of an EC Member State or an EFTA State for the purposes of employment in accordance with the provisions governing the employment of nationals of that state laid down by law regulation or administrative actions.”

Chapter 2 of that Part concerns the right of establishment and Article 31 provides:

	“1.	Within the framework of the provisions of this Agreement there shall be no restrictions on the freedom of establishment of nationals of an EC Member State or an EFTA State in the territory of any other of these states.  This shall also apply to the setting up of agencies, branches or subsidiaries by nationals of any EC Member State or EFTA State established in the territory of any of these states.  

	Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of Article 34 second paragraph, under the conditions laid down for its own nationals by the law of the country where such establishment is affected, subject to the provisions of chapter 4.  

	2.	Annexes VIII to XI contain specific provisions on the right of establishment.”

13.	Annexe VIII is, according to both parties, the effective connecting link for the application of directive 90/364 to all citizens of non-European Union European Economic area states such as Norway and not just those who seek to exercise a right of establishment.  

14.	In so far as is relevant that Annexe VIII provides as follows:

	“SECTORAL ADAPTATIONS

	For the purposes of this Annex and notwithstanding the provisions of Protocol 1, the term “Member State(s)” contained in the Acts referred to shall be understood to include in addition to its meaning in the relevant EC Acts Austria, Finland, Iceland, Liechtenstein, Norway, Sweden and Switzerland.”

The Acts referred to include the Directive of 90/364 “on the right of residence” and provides that:

	“The provisions of the Directive shall, for the purposes of the Agreement, be read with the following adaptation:

	In the first sub-paragraph of Article 2(1), the words “Residence permit for a national of a Member State of the EEC” shall be replaced by the words “Residence permit”.  

15.	At the hearing, we expressed doubts about the submissions made by both parties that in this case Directive 90/364 fell to be applied, as the Directive is referred to only in the context of provisions in respect of the right of establishment. Accordingly, we issued a Direction dated 28 February 2006 asking for further submissions on the point.  Both parties have made their further submissions.  Mr Coppel and Mr Knafler have not departed from their reliance upon Annex VIII of the European Economic Area Agreement as the basis for the conferring of such rights of residence as are contained in Directive 90/364.

16.	We are not persuaded by these submissions.  Mr Coppel in his submission quoted from the preamble to the Directive and said that the conferral of rights of residence of the non-economically active was to enhance the free movement right of those who were economically active.  However, that preamble was related to the free movement of persons within the European Union.  What we have not found or been directed to is how such rights as are contained in the Directive are conferred on citizens of countries, such as Norway, which is a member of the European Economic Area but is not a member of the European Union, other than to the limited extent set out in the Agreement.  

17.	Part III of the Oporto Agreement is headed “Free movement of persons, services and capital, …”.  However, in respect of persons referred to in chapters 1 and 2 of Part III the provisions are related to workers and self employed persons and to those seeking the right of establishment.  We cannot find, and have not been directed to, any provisions which in general terms confer the same rights of citizenship and residence as are contained in the Treaty of Rome, as amended.  Further, the preamble does not appear to extend its scope beyond “the four freedoms”.

18.	Article 28 is related to the free movement of workers, Article 29 to the free movement of workers and self employed persons and Article 31 to the freedom of establishment of nationals of European Community member states or European Free Trade Area states in the territory of any of these states.  The basic framework of the Agreement is not related to general rights of residence of citizens of states not in the European Economic Area, including the economically inactive.  It is significant that in Article 28, paragraph 5 provides:

	“Annex V contains specific provisions on the free movement of workers.”

Article 31, paragraph 32 provides:

	“Articles VIII to XI contain specific provisions on the right of establishment.”

19.	It stretches credulity to envisage that general rights of residence in respect of the economically inactive are conferred in Part III of the Agreement which is related to workers, the self-employed and those seeking rights of establishment, by the inclusion of a reference to Directive 90/364 in Annex VIII which is specifically related to the latter.  Whilst we can appreciate why Mr Coppel advanced the argument that the reference to Directives 90/364 and 90/365 do not appear to make sense unless there is general application in the context of sectoral adaptations, it seems at the very least to be an odd way to confer rights which are not otherwise established by the Agreement and quite clearly go beyond its purpose.  The fact that it is stated in paragraph 9 of Mr Coppel’s submission that the United Kingdom Government and the government of every other member state has always acted on the basis that the Directive applies in principle to all EEA nationals is neither here nor there.  If there was such an intention to confer the rights he asserts, then that intention, in our view, has not effectively been realised.  Accordingly, whilst we have noted and taken into account the manner in which governments are said to have reacted, we have concluded that is not material.  It is not, in our view, for us to rewrite, rather than just interpret, an international treaty which is what we would be required to do if we were to give effect to Directive 90/364 in the manner the parties wish us to.  Paragraph 8 of Mr Knafler’s written submission is misconceived as he asks us to go beyond interpretation.  The purpose of the Agreement as set out is not consistent with the incorporation of rights of residence which go beyond what was intended by the Agreement (see paragraph 16 herein).  We consider that the Agreement should be interpreted in accordance with its terms and have done so.

20.	In all these circumstances, we have reached the conclusion that Directive 90/364 cannot found for citizens of Norway a right to reside in Great Britain other than to the limited extent set out in Article 32 and Annex VIII, which do not apply to the claimant.  He cannot, in these circumstances, rely on it or the anti-discrimination provision of the agreement as the Agreement has no application in the circumstances set out above.  Had we not taken this view, the claimant would not have succeeded anyway, as we would have decided the appeal on the same basis as CIS/3573/2005, with the reasoning adapted to take account of the differing circumstances, though the result would have been the same.

21.	The appeal fails.

							(Signed)
D J MAY QC
Commissioner

(Signed)
J M HENTY
Commissioner

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

Date:  12 May 2006