[2008] UKSSCSC CIS_1614_2007 (23 January 2008)

CIS/1614/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The Secretary of State’s appeal is allowed.  The decision of the Bexleyheath tribunal (the tribunal) given on 21 December 2006 is erroneous in point of law.  I am unable to make the necessary findings of fact to enable me to substitute my own decision and therefore the matter is remitted for rehearing to a differently constituted tribunal.

2.	I take this step with some reluctance because, other than making the original appeal, the claimant appears to have played no further part in the process.  Despite requesting an oral hearing of her appeal, she did not attend the tribunal hearing, and she has failed to respond to communications sent out to her by the Commissioners Office.  I direct that this file is placed before a district chairman so that when relisting directions are given, consideration can be given to including a requirement that the claimant  attend or risk having her appeal struck out.

3.	The claimant is a Danish national.  She entered the United Kingdom in December 2004 with her eight dependent children.  Such evidence as is available suggests that she entered the United Kingdom to join her husband, who was seemingly then working, but appears to have stopped very soon thereafter.  She herself is said to have worked for three months from January 2005, but evidence on this point is scant.  What is known is that when she made a claim to income support on 11 May 2006, she did so as a lone parent.

4.	The Secretary of State refused her claim for income support on 23 August 2006 on the basis that she was not a person with a right to reside in the United Kingdom.  The claimant appealed against this decision saying that she had come to the United Kingdom to join her husband but they had separated in May 2006.  Her letter of appeal describes her husband as her “ex husband” and says that his whereabouts are now unknown.  However, I note that if the parties only separated in May 2006, it is unlikely that by the time the claimant wrote the letter of appeal, which is dated 1 September 2006, that the parties would in fact be divorced, particularly if, as she states, she does not know her husband’s whereabouts.  This is important, because to the extent that the claimant has any claim to be a qualified person, it can only be as the family member of a qualified person. It is not necessary for the family member to live in the same household as the qualified person in order to have a right of residence.  The spouse of a qualified person retains that status until finally divorced: Case C – 267/83 Diatta v Land Berlin [1985] E.C.R. 567. If, however, the marriage had ended by divorce, then when did this happen? If between the date of claim and the date of decision, then findings of fact as to each period will need to be made.

5.	The claimant did not attend the tribunal hearing on 21 December 2006, nor was there anyone there to represent her.  The tribunal appears to have accepted what she said in the letter of appeal as a basis for allowing the appeal.  The tribunal noted that the Secretary of State had not considered whether the claimant was a family member of a qualified person. The tribunal seems to have decided that she had joined the household of the qualified person, and having done so, she then remained a qualified person.  The tribunal also thought that the claimant could be assisted by the decision in Baumbast, and even though her claim was for income support, considered she could be a ‘jobseeker’..  Despite the many unanswered questions, including whether her husband was indeed at the relevant time a qualified person, the tribunal allowed the claimant’s appeal.

6.	The Secretary of State applied for leave to appeal against this decision, which was granted by a tribunal chairman.  From April 30 2006, the date that the Immigration (European Economic Area) Regulations 2006 came into force, any claimant seeking to establish a right to reside and entitlement to social assistance, if not otherwise a ‘qualified person’,  must do so as a work seeker and claim jobseekers allowance, not income support. 

7.	The Immigration (European Economic Area) Regulations 2006 (the regulations) gave effect in domestic law to Directive 2004/38/EC.  The Directive provides that a person may acquire a right of permanent residence which is not conditional on any member of the family continuing to exercise a community right to freedom of movement or being self sufficient, but only after a certain length of time.  Regulation 15 of the regulations grants a permanent right of residence to an EEA national who is residing in the United Kingdom in accordance with these regulations (i.e. has been a qualified person) for a continuous period of 5 years, or has been a family member of a similarly qualified EEA national who is a worker or self employed person who has ceased activity.  The claimant does not satisfy these provisions.   She herself only entered the United Kingdom in December 2004 and she implied in her letter of appeal that her husband had arrived about a year earlier.  She is also outside the initial period of right of residence granted by regulation 13 which gives an EEA national entitlement to reside in the United Kingdom for a period not exceeding three months beginning on the date on which she was admitted to the United Kingdom.

8.	The claimant made reference in her letter of appeal to having undertaken some work for a three month period, but no evidence has been produced to show that she was self sufficient during this time or that the work was real and effective, as opposed to marginal or ancillary.  Further, that work was over a year before the claim to income support was made.  Based on her own status, the claimant can only be a qualified person if she is a jobseeker.  She cannot be treated as a worker (regulation 6(2)(b)) unless she was duly recorded involuntary unemployment and had registered as a jobseeker with the relevant employment office.  She very clearly does not satisfy this provision.

9.	Accordingly, the only way in which she can establish that she was a qualified person at the relevant time is to show that she was a family member of a qualified person.  If the claimant and her husband are divorced, then she is no longer his spouse and cannot be treated as a family member.  If they are not divorced, then even though not residing in the same household, she could still be a family member of the qualified person.  To decide whether the husband was a qualified person will require the tribunal to which this matter is remitted to make enquiry as to the status of the claimant’s husband.  If the claimant fails to cooperate with the provision of information, then it will not be possible for the tribunal to which this matter is remitted to make the positive finding of fact on which any hope of success in her appeal must depend.

10.	This leaves only the Baumbast argument refered to by the tribunal.  The facts of the present case are very different from those in Baumbast and R v Secretary of State for the Home Department: Case – 413/99 [2002] E.C.R. I-7091. The children there had started school in a member state while their parents exercised their rights of residence as migrant workers.  The children in the present case appear to have entered the UK with their mother at the point at which their father was about to give up work because (the letter of appeal implies)  of his ill health.    The ECJ  ruled in Baumbast that where children had a right to reside in a host member state in order to attend general educational courses pursuant to Article 12 of regulation No 1612/68, this provision must be interpreted as entitling the parent who is their primary carer to reside with them in order to facilitate the exercise of that right notwithstanding that the parent had ceased to be a migrant worker in the host member state. 

11.	As the Commissioner pointed out in CIS/1121/2007, both parties in Baumbast and R had been living in the United Kingdom for at least 5 years, and the families were self sufficient.  Further, as the Commissioner points out at paragraph 8 of CIS/1121/2007, Baumbast and R was decided at a time when the Advocate General was able to say that community legislation had not kept pace with social and economic developments.  Since the decision was made, the Council has adopted Directive 2004/38/EC. This addresses the issues raised by the facts of Baumbast and R,  but  does not assist those in the position of the present claimant. As the Court of Appeal noted in Ali v the Secretary of State for the Home Department [2006] EWCA Civ 484:

     …what is striking is that the [ECJ] nowhere suggested there that the child as a 
     citizen of the Union had the right of residence simply by virtue of Article 18 and
     his pursuit of primary education… 

12.	Accordingly, the argument raised under Baumbast cannot assist the claimant.  Nor can she argue entitlement to benefit dependent upon her own status as a worker. She did not claim benefit as a worker or a work seeker, but as a lone parent.  The only question which remains to be established is whether she is a family member of a qualified person.  She should be aware that it would be extremely difficult for the tribunal to which this matter is remitted to make a finding in her favour without evidence from her to assist it on this point.

	(Signed)	A Ramsay
		Deputy Commissioner
	
	(Date)	23 January 2008