Abdirahman v Leicester City Council

JurisdictionEngland & Wales
JudgeLord Justice Lloyd,Lord Justice Moses
Judgment Date05 July 2007
Neutral Citation[2007] EWCA Civ 657
Docket NumberCase Nos: 2006/1639, 2006/1644 and 2006/1668
CourtCourt of Appeal (Civil Division)
Date05 July 2007

[2007] EWCA Civ 657

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONERS

COMMISSIONER D J MAY QC, COMMISSIONER J M HENTY AND HIS HONOUR JUDGE MARTIN QC

CIS/3573/2005, CH/2484/2005 AND CPC/2920/2005

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Sir andrew Morritt, Chancellor

Lord Justice Lloyd and

Lord Justice Moses

Case Nos: 2006/1639, 2006/1644 and 2006/1668

Between
2006/1639 Nadifa Dalmar Abdirahman
Appellant
and
Secretary of State for Work and Pensions
Respondent
2006/1644 Nadifa Dalmar Abdirahman
Appellant
(1) Leicester City Council
(2) Secretary of State for Work and Pensions
Respondents
2006/1668 Ali Addow Ullusow
Appellant
Secretary of State for Work and Pensions
Respondent

Nicholas Blake Q.C. and Stephen Knafler (instructed by Leicester Law Centre in 2006/1639 and 1644 and by Bristol and Avon Law Centre in 2006/1668) for the Appellants

Philip Sales Q.C. and Jason Coppel (instructed by the Office of the Solicitor, Department for Work and Pensions) for the Secretary of State for Work and Pensions

Leicester City Council was not represented

Hearing dates: 19 and 20 June 2007

Lord Justice Lloyd
1

These three appeals raise the same point in relation to different social security benefits, claimed by two different persons. Ms Abdirahman is a Swedish national, born in Somalia. Mr Ullusow is a Norwegian national, also born in Somalia.

2

In each case, as regards the period relevant to this case, the claimant had entered the United Kingdom, being entitled to do so as an EEA national, and was living here without having to obtain permission to remain in the UK. Neither claimant was, at the relevant time, a worker or otherwise economically self-sufficient. Each claimed social security benefits, but the claim was rejected on the basis that the claimant did not have the right to reside in the UK, a test introduced as from 1 May 2004. Each claimant appealed against the rejection to the Appeal Tribunal; Ms Abdirahman's appeal was successful and Mr Ullusow's failed. His further appeal to the Social Security Commissioner, and the appeal of the Secretary of State for Work and Pensions in Ms Abdirahman's case, were heard by a special panel of three Social Security Commissioners, who upheld the Appeal Tribunal's decision as regards Mr Ullusow and reversed that in Ms Abdirahman's case.

3

Ms Abdirahman's claim was to income support, housing benefit and council tax benefit. Mr Ullusow's was to pension credit. The legislation relating to each benefit differs in detail, but the same point arises in relation to each, under amending regulations which came into effect on 1 May 2004. I will deal first with the position as regards income support.

Income support

4

Under the Income Support (General) Regulations 1987, as they stood at the relevant time (in 2004, after 1 May), entitlement to income support was subject to a special provision in the case of a “person from abroad”, which had the effect that no sum was payable to such a person. How this was achieved does not matter. What matters is whether Ms Abdirahman came within the definition of “person from abroad”. That definition was set out in regulation 21(3), but subject (relevantly) to regulation 21(3G). These provisions were as follows:

“(3) Subject to paragraphs (3F) and (3G), in Schedule 7

“person from abroad” means a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, but for this purpose, no claimant shall be treated as not habitually resident in the United Kingdom who is

(a) a worker for the purposes of Council Regulation (EEC) No. 1612/68 or (EEC) No. 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No. 68/360/EEC or No. 73/148/EEC; or a person who is an accession State worker requiring registration who is treated as a worker for the purpose of the definition of “qualified person” in regulation 5(1) of the Immigration (European Economic Area) Regulations 2000 pursuant to regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004;

(b) a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28 th July 1951, as extended by Article 1 (2) of the Protocol relating to the Status of Refugees done at New York on 31 st January 1967; or

(c) a person who has been granted exceptional leave to enter the United Kingdom by an immigration officer within the meaning of the Immigration Act 1971, or to remain in the United Kingdom by the Secretary of State; or

(d) 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;”

“(3G) In paragraph (3), for the purposes of the definition of a person from abroad no person shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland if he does not have a right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.”

5

The requirement of habitual residence had been introduced in 1994. It precluded claims on the part of persons who came to this country on a short term basis, and who sought benefits during their stay. It did not exclude claims by persons who came here intending to stay for a longer period or indefinitely. Such claims were the target of the amendment made in 2004 by adding paragraph 21(3G), with its requirement of a “right to reside” in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland. These appeals are about what is meant by a “right to reside” in these regulations and in the comparable regulations dealing with other benefits.

The facts

6

Ms Abdirahman is Swedish by nationality, and so a citizen of the EU. She came to England from Sweden on 1 March 2004 with her three children. She stated that her reason for coming was that she had family here, and she intended to remain here permanently. At the relevant time she did not work and was not seeking work in the UK. She claimed income support first on 13 May and then on 2 August 2004; on 1 June she claimed housing benefit and council tax benefit. The Appeal Tribunal held that by 1 June 2004 she had a fixed and settled intention of residing in the UK. Later she sought and eventually obtained work. At that stage, it is accepted, she was entitled to benefits, but this appeal is concerned with the earlier period, before she obtained, or sought to obtain, work.

7

Mr Ullusow is a Norwegian citizen, having been born in Somalia on 5 December 1936. He has an adult daughter of his first marriage, his first wife having died. His daughter travelled to England in 2004. Shortly afterwards he followed her, intending to find her and to persuade her to return with him to Norway. She would not return, and he decided to stay. He claimed pension credit on 14 June 2004; he was not working or seeking work at that time.

The Appellants' immigration position

8

As citizens of an EEA Member State, each Appellant was entitled to admission to the UK on production, on arrival, of a valid national identity card or passport issued by an EEA Member State. Each was able to remain in the UK thereafter, though the Government had the right to remove either of them. In those circumstances, Mr Blake Q.C., for the Appellants, submitted that each of them was lawfully present in the UK, each of them was in fact residing in the UK, and accordingly each had, at least for the time being, a right to reside here. Mr Sales Q.C., for the Secretary of State for Work and Pensions, submitted that this is not the correct interpretation of the requirement of a right to reside in the income support regulations. This requires consideration of the position as a matter of immigration law.

9

The starting position is in section 1(1) and (2) of the Immigration Act 1971:

“(1) All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person.

(2) Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain).”

10

The persons who have the right of abode in the UK are, under section 2 of the 1971 Act, British citizens and certain Commonwealth citizens (to whom the Act applies as if they were British citizens). By section 3 of that Act, other persons “shall not enter the United Kingdom unless given leave to do so” under or in accordance with the Act, and may be given leave to enter the United Kingdom or, when already here, leave to remain here, either for a limited or for an indefinite period. In certain circumstances, a person who is not a British citizen may be removed from the United Kingdom in accordance with directions given by an immigration officer:...

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