Abdirahman v Secretary of State for Work and Pensions [2007] EWCA Civ 657 CH 2484 2005
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 05 July 2007 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Residence and presence conditions |
| Docket Number | CH 2484 2005 |
| Appellant | Abdirahman v Secretary of State for Work and Pensions [2007] EWCA Civ 657 |
R(IS) 8/07
(Abdirahman and Ullusow v Secretary of State for Work and Pensions
[2007] EWCA Civ 657)
|
CA (Sir Andrew Morritt C, Lloyd and Moses LJJ) 5 July 2007 |
CIS/3573/2005 CH/2484/2005 CPC/2920/2005 |
Residence condition – habitual residence – meaning of “right to reside” – whether lawful presence in the UK sufficient
European Union law – whether right to reside requirement breaches international treaty obligations – whether discriminatory contrary to Article 12 of the EC Treaty
In each case the claimant had entered the United Kingdom (UK), 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 income-related 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 Tribunal of Commissioners (DJ May QC, JM Henty and His Honour Judge Martin QC), who upheld the appeal tribunal’s decision as regards Mr Ullusow and reversed that in Ms Abdirahman’s case, after considering arguments based on UK immigration law and EC Treaty obligations, and accepting a concession from the Secretary of State that there was indirect discrimination against non-UK nationals contrary to Article 12 of the EC Treaty (discrimination on grounds of nationality), but holding that it was justified. Both claimants appealed to the Court of Appeal. Before the Court of Appeal the Secretary of State argued that the cases were outwith the scope of the EC Treaty and that therefore there could be no question of indirect discrimination contrary to Article 12
Held, dismissing the appeals, that
1. UK immigration law made a clear distinction between the UK’s obligation to admit an EEA national and an entitlement to reside for which it is necessary to be a “qualified person”, and the claimants, not being qualified persons, did not have a right to reside under UK law at the relevant times (paragraphs 19, 25 and 65)
2. while Article 18 of the EC Treaty imposed an obligation on the UK to confer a right to reside on nationals of Member States, that obligation is subject to the limitations imposed under Directive 90/364 to the effect that beneficiaries of the right of residence must not become an unreasonable burden on the public finances of the host Member State, and so Article 18 did not create a right of residence in another Member State for an EEA national who was not economically active (Trojani [2004] ECR I-7573 and other ECJ judgments followed) (paragraphs 33, 34 and 67);
3. it was difficult to suppose that the terms of the European Convention on Social and Medical Assistance 1953 (ECSMA) or the European Social Charter could properly be read as imposing on its Contracting Parties obligations more onerous than those imposed directly on EU Member States by Article 18 as regards rights of residence and, in any event, the relevance of an international treaty to the interpretation of domestic legislation is limited, particularly where, as in this case, the legislation to be construed was not enacted in order to give effect to the treaty obligations in question (paragraphs 35 and 36);
4. while right of residence could be within the scope of application of the EC Treaty for the purposes of Article 12 (discrimination on grounds of nationality), that scope did not extend to cases where no right of residence existed under either the Treaty or the relevant domestic law and so the question of justification did not need to be considered in these cases (paragraphs 44 to 46, 69);
5. (obiter) if, as had been conceded before the Commissioners, there was indirect discrimination against non-UK nationals which required to be justified, the Commissioners had correctly held that the requirement was justified as a legitimate response to a manifest problem (paragraphs 48 to 50).
DECISION OF THE COURT OF APPEAL
Mr Nicholas Blake QC and Mr Stephen Knafler instructed by Leicester and Bristol and Avon Law Centres appeared for the appellants.
Mr Philip Sales QC and Mr Jason Coppel instructed by the Office of the Solicitor, Department for Work and Pensions, appeared for the respondent.
Judgment (reserved)
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 (SI 1987/1967), 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 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; 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...
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