CIS/259/2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the Secretary of State’s appeal against the decision of the Enfield appeal tribunal dated 25 May 2007.  I set aside that decision and give the decision the tribunal should have given: the claimant is not entitled to income support under her claim made on 9 June 2006.

REASONS

2.	The claimant is a Turkish national who claimed asylum on her arrival in the United Kingdom as long ago as 26 October 1996.  Her application had been rejected but she had subsequently been granted temporary admission under paragraph 21 of Schedule 2 to the Immigration Act 1971 from time to time.  She lives with her husband who is also a Turkish citizen who has been living in the United Kingdom since about 1992 and who had, in 2006, applied for indefinite leave to remain.  However, until such leave was given, he was regarded by the Secretary of State as a “person from abroad” and had apparently been refused state pension credit.

3.	On 9 June 2006, the claimant claimed income support.  Her claim was disallowed on 17 July 2006 on the ground that she had no right of residence in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland and therefore could not be treated as habitually resident in any of those territories with the result that she was a “person from abroad” with an applicable amount of nil (see regulations 21 and 21AA of the Income Support (General) Regulations 1987 (S.I. 1987/1967 as amended)).  She appealed, relying on Article 1 of the European Convention on Social and Medical Assistance and the European Social Charter, which require states to provide social assistance to the nationals of other contracting states who are “lawfully present” in their territory.  The United Kingdom and Turkey have both ratified both treaties.  The Secretary of State relied on R(SB) 25/85 for the proposition that the claimant was not lawfully present in the United Kingdom.  On 25 May 2007, the tribunal allowed her appeal, relying on Szoma v. Secretary of State for Work and Pensions [2005] UKHL 64; [2006] 1 A.C. 564 (also reported as R(IS) 2/06) for the proposition that the claimant was lawfully present in the United Kingdom.  The Secretary of State now appeals against the tribunal’s decision with the leave of a salaried chairman who has pointed out that the tribunal failed to mention regulation 21AA of the 1987 Regulations at all.  The claimant has not responded to a direction to make a submission.

4.	R(SB) 25/85 was not concerned with the question whether a person was “lawfully present” because the phrase in issue in that case was “present with limited leave, or without leave, to enter or remain in the United Kingdom” and there was, unsurprisingly, no reference in the decision to temporary admission.  The Commissioner’s use of the words “lawfully present” in paragraph 11(3) of the decision has to be seen in that context.  The tribunal was therefore entitled to disregard that decision and it may possibly have been correct to find that the claimant was “lawfully present” in the United Kingdom for the purpose of the European Convention on Social and Medical Assistance and the European Social Charter, although it by no means necessarily follows from the decision of the House of Lords in Szoma to the effect that an asylum seeker granted temporary admission is lawfully present in the United Kingdom for domestic law purposes that an overstayer granted temporary admission is lawfully present for the purposes of the Convention or the Charter.  However, the tribunal overlooked the fact that the Convention and the Charter impose obligations on ratifying states but are not directly enforceable by citizens in the absence of any domestic legislation to that effect.  Therefore, even if the United Kingdom is in breach of its obligations under those treaties, the tribunal was not entitled to ignore the unambiguous provisions of the 1987 Regulations, for reasons I have set out in CIS/1773/2007.

5.	Accordingly, the Secretary of State’s appeal must be allowed.

	(signed on the original)	MARK ROWLAND
		Commissioner
		4 July 2008