IN THE UPPER TRIBUNAL	Appeal No.  CIS/1028/2007
ADMINISTRATIVE APPEALS CHAMBER

Before: UPPER TRIBUNAL JUDGE ROWLAND

Decision:  The Secretary of State’s appeal is allowed.  The decision of the Birmingham appeal tribunal dated 9 November 2006 is set aside and I substitute a decision that the claimant did not have a right of residence in United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland between her date of claim for income support and the date of the Secretary of State’s decision on that claim.  I leave all other issues arising on her claim to be determined by the Secretary of State.

REASONS FOR DECISION

1.	The claimant is a Portuguese national who came to the United Kingdom on 4 August 2002.  She worked for a while, first as a cleaner and then in a factory until about September 2003, when she stopped because she was pregnant.  She claimed income support and, although not successful from the date of claim, she was awarded income support from 10 December 2003, by which date she was within 11 weeks of her expected date of confinement.  Her first child was born on 25 February 2004.  However, entitlement ceased at the end of April 2004 when she declared that she was living with the father of her child.  She and her partner separated in March 2006 and she made a new claim for income support with effect from 16 March 2006.  Her second child was born 14 May 2006.

2.	On 19 June 2006, the Secretary of State decided that the claimant was not entitled to income support from 16 March 2006 because she had no right of residence 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 with the consequence that she was a “person from abroad” with an applicable amount of nil (see regulation 21 of the Income Support (General) Regulations 1987 (S.I. 1987/1967, as amended)).  The law had changed since her previous claim.  She appealed and her appeal was allowed by the appeal tribunal on the ground that she had a right of residence as a worker.  The Secretary of State now appeals against the tribunal’s decision with my leave.

3.	I am quite satisfied that the tribunal’s decision is erroneous in point of law.  A person is not a worker when neither employed nor in the labour market nor temporarily incapable of work.  It is not suggested that the claimant was a “qualified person” with a right of residence under the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326) or the successors of those Regulations on any other ground.  She has been a worker in the past and, assuming that her partner, who was also Portuguese, was a worker, a family member of a qualified person but during the material period between the date of her claim for income support and the date of the Secretary of State’s decision, she was neither a qualified person nor a family member of a qualified person.

4.	I accept that, by the date of claim, she had been living in England for nearly four years and I am also prepared to accept that she had had a right of residence under the 2000 regulations for about three and a half years.  Against that background, the claimant’s representative refers to CIS/3182/2005 and argues that the claimant had a right of residence through the operation of Articles 12 and 18 of the EC Treaty.  In CIS/3182/2005, I said –

“It is one thing to apply a “right to reside” test to put pressure on people to leave the United Kingdom when they have never been economically active here and have not been here for very long but it may be less clear that the blanket application of the test represents a proportionate response to the problem that concerns the Government if it results in pressure to leave the United Kingdom being placed on people who have been economically active in the past or have been established here for many years but for some reason or other have not acquired a permanent right of residence.“

5.	However, the law has developed since then.  In Abdirahman v. Secretary of State for Work and Pensions [2007] EWCA Civ 657 (reported as R(IS) 8/07), the Court of Appeal has made it clear that the focus must be on Article 18 of the Treaty rather than Article 12 and in Kaczmarek v Secretary of State for Work and Pensions [2008] EWCA Civ 1310 (to be reported as R(IS) 5/09), the Court of Appeal, while accepting that proportionality is relevant when considering a right of residence under Article 18, held that, in assessing proportionality, Directive 2004/38/EC provides a useful benchmark.  I accept the claimant’s representative’s point that the claimant in this case had enjoyed a right of residence for considerably longer than the claimant in CIS/3182/2005 and, indeed, she had done so for longer than Ms Kaczmarek.  However, her period of presence under a right of residence still fell well short of the five years necessary to obtain a right of permanent residence, not subject to the condition of being a worker or self sufficient, under the Directive.  I also accept that the claimant’s need for social assistance arose out of the breakdown of her family unit.  However the Directive, no doubt deliberately, makes provision for family breakdown only where the claimant and his or her former partner were married or in a registered partnership.  I am satisfied that the claimant did not have a right of residence under Community law.

6.	Accordingly, I allow the Secretary of State’s appeal.  However, I deal only with the question whether the claimant had a right of residence.  The claimant’s representative may wish to check that the claimant was not entitled to transitional protection under regulation 6(1)(c) of the Social Security (Habitual Residence) Amendment Regulations 2004 (S.I. 2004/1232) by virtue of having been entitled to housing benefit or council tax benefit continuously since 30 April 2004.  She had been a council tenant throughout that period and her partner’s earnings would not necessarily have disentitled her to those benefits, which she was presumably receiving at the time of her previous award of income support.  The question seems never to have been asked.

MARK ROWLAND
20 April 2009