ID v Secretary of State for Work and Pensions (IS) [2011] UKUT 401 (AAC) (29 September 2011)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

I give the claimant permission to appeal against the decision of the First-tier Tribunal under reference 052/09/00891, made on 10 August 2009 at Harrow, but I dismiss the appeal as the decision did not involve the making of an error on a point of law.

Reasons for Decision

1. I have given the claimant permission to appeal against the decision of the First-tier Tribunal, although I have then dismissed the appeal. I gave permission as the application raised an arguable issue of law and doing so has allowed me to give fuller reasons than would be appropriate on an application. It also allows the claimant the chance to appeal to the Court of Appeal, if he wishes to challenge the decision, rather than to go by way of judicial review.

A. the benefit history

2. The claimant claimed income support on 9 May 2008. As I understand it, the Secretary of State refused the claim on 30 July 2008 and then reconsidered and confirmed the decision on 19 February 2009. The Secretary of State presented the claimant’s appeal to the First-tier Tribunal as being against the later decision rather than the earlier one. That may not be technically accurate, but I can see no practical difference in the circumstances of the case. The ground for refusing the claim was that the claimant was a person from abroad who, having an applicable amount of nil, had no entitlement to income support.

B. Income support legislation

3. Income support was established by the Social Security Act 1986. The relevant provisions have been consolidated by the Social Security Contributions and Benefits Act 1992.

4. Section 124(1) of the 1992 Act provides:

(1) 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.

5. Section 135 provides:

(1) The applicable amount, in relation to any income-related benefit, shall be such amount or the aggregate of such amounts as may be prescribed in relation to that benefit.

(2) The power to prescribe applicable amounts conferred by subsection (1) above includes power to prescribe nil as an applicable amount.

6. The Income Support (General) Regulations 1987 are made, in part, under that authority. Paragraph 17 of Schedule 7 to those Regulations prescribes that the applicable amount for a ‘person from abroad’ is nil.

7. ‘Person from abroad’ is defined by regulation 21AA. This has been the governing provision since 30 April 2006. The current version provides:

Special cases: supplemental – persons from abroad

21AA.—(1) “Person from abroad” means, subject to the following provisions of this regulation, a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.

(2) No claimant shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless he has a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland other than a right to reside which falls within paragraph (3).

(3) A right to reside falls within this paragraph if it is one which exists by virtue of, or in accordance with, one or more of the following—

(a) regulation 13 of the Immigration (European Economic Area) Regulations 2006;

(b) regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the claimant is—

(i) a jobseeker for the purpose of the definition of "qualified person" in regulation 6(1) of those Regulations, or

(ii) a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker;

(d) Article 39 of the Treaty establishing the European Community (in a case where the claimant is a person seeking work in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland).

(4) A claimant is not a person from abroad if he is—

(a) a worker for the purposes of Council Directive No. 2004/38/EC;

(b) a self-employed person for the purposes of that Directive;

(d) a person who is a family member of a person referred to in sub-paragraph (a), (b) or (c) within the meaning of Article 2 of that Directive;

(e) a person who has a right to reside permanently in the United Kingdom by virtue of Article 17 of that Directive;

(f) a person who is treated as a worker for the purpose of the definition of "qualified person" in regulation 6(1) of the Immigration (European Economic Area) Regulations 2006 pursuant to—

(i) regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004 (application of the 2006 Regulations in relation to a national of the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia or the Slovak Republic who is an "accession State worker requiring registration"), or

(ii) regulation 6 of the Accession (Immigration and Worker Authorisation) Regulations 2006 (right of residence of a Bulgarian or Romanian who is an "accession State national subject to worker authorisation");

(g) 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;

(h) a person who has exceptional leave to enter or remain in the United Kingdom granted outside the rules made under section 3(2) of the Immigration Act 1971;

(hh) a person who has humanitarian protection granted under those rules;

(i) 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, expulsion or other removal by compulsion of law from another country to the United Kingdom; or

(j) a person in Great Britain who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption.

C. the case for the claimant

8. The case for the claimant is that he has a right of permanent residence on the basis that he is a self-employed person who has ceased that employment on becoming permanently incapable of work following a serious road accident on 3 January 2008. As the claimant is Romanian, that is only just over one year after his country’s accession to the EU.

9. Permanent residence derives from Articles 16 and 17 of Directive 2004/38/EC:

16 General rule for Union citizens and their family members

1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. …

2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.

3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absence of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting to another Member State or a third country.

4. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.

17 Exemptions for persons no longer working in the host Member State and their family members

1. By way of derogation from Article 16, the right of permanent residence in the host Member State shall be enjoyed before completion of a continuous period of five years of residence by:

…

(b) workers or self-employed persons who have resided continuously in the host Member State for more than two years and stop working there as a result of permanent incapacity to work.

If such incapacity is the result of an accident at work or an occupational disease entitling the person concerned to a benefit payable in full or in part by an institution in the host Member State, no condition shall be imposed as to length of residence; …

10. The domestic equivalent of these provisions is found in regulation 15 of the Immigration (European Economic Area) Regulations 2006 (SI No 1003):

15 Permanent right of residence

(1) The following persons shall acquire the right to reside in the United Kingdom permanently-

…

11. Regulation 5 defines the meaning of regulation 15(1)(c):

5 “Worker or self-employed person who has ceased activity”

(1) In these Regulations, “worker or self-employed person who has ceased activity” means an EEA national who satisfies the conditions in paragraph (2), (3), (4) or (5).

…

(3) A person satisfies the conditions in this paragraph if—

(a) he terminates his activity in the United Kingdom as a worker or self-employed person as a result of a permanent incapacity to work; and

(b) either—

(i) he resided in the United Kingdom continuously for more than two years prior to the termination; or

(ii) he incapacity is the result of an accident at work or an occupational disease that entitles him to a pension payable in full or in part by an institution in the United Kingdom.

D. analysis of the claimant’s case

12. There are a number of problems in the way of the claimant’s argument.

13. First, it is not clear when he was self-employed, if he was self-employed at all. The Secretary of State’s decision-maker accepted self-employment, but the evidence falls far short of establishing it. What is the evidence?

· There is evidence that the claimant set up three companies (pages 9, 10 and 11). If he operated through those companies, he would be an employee of the company, not self-employed. In any event, there is no evidence of the extent to which those companies were ever active.

· Her Majesty's Revenue and Customs wrote to say that he had not filed any tax returns since 2002 (page 13). He may, of course, have been evading his tax liability, but the absence of tax records does not support his case.

· He has provided evidence of two pieces of work undertaken by one of his companies (pages 40 and 41). I have already said that that does not show he was self-employed. And a couple of pieces of work in 2006 and 2007 is not sufficient to show genuine and effective economic activity.

· He says his landlord destroyed some of his papers. Maybe that did happen, but the result is that there is nothing other than the two jobs I have just mentioned to support the claimant’s assertion.

14. Just for completeness, the claimant cannot rely on worker status, because that would have required him to have been registered, which he was not.

15. Second, the First-tier Tribunal questioned whether permanent incapacity had been shown. In May 2009, the claimant’s social worker wrote (page 14): ‘It is unknown at this time if he would be able to work again.’ Moreover, both the claimant and his doctor were optimistic that, with extensive physiotherapy, he might be able to walk again.

16. Third, I reject the legal arguments presented by the claimant’s representative. He has argued that it was not necessary for the claimant to have had a right to reside before his incapacity in order to establish permanent residence. Residence, he argues, is sufficient. I take the Directive and the domestic Regulations in turn.

17. As to the Directive, the representative compares the wording of Articles 16 and 17, pointing out that only Article 16 refers to the need to reside legally. That is correct, but irrelevant. Article 17 expressly derogates from Article 16 by reducing the necessary period of residence. There is nothing to indicate that it changes the nature or quality of the residence that is still required. The two Articles form a package of provisions (along with Article 18) and it would not be appropriate to interpret them in the disjointed fashion of the representative’s argument.

18. As to the Regulations, the same argument applies. They implement the Directive and I can see nothing to indicate that they are intended to be wider than the Directive in this respect. As I have said, the representative’s argument is contrary to the tenor of the provisions, which is to change the period of residence required, not its nature or quality.

E. conclusion

19. For any and all of those reasons, the First-tier Tribunal came to the correct decision in law. That is why I have dismissed the appeal.

Signed on original
on 29 September 2011

Edward Jacobs
Upper Tribunal Judge

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Upper Tribunal (Administrative Appeals Chamber)