CIS 2946 2008
| Jurisdiction | UK Non-devolved |
| Judge | Judge M. Rowland |
| Judgment Date | 27 February 2009 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CIS 2946 2008 |
| Subject Matter | Residence and presence conditions |
IN THE UPPER TRIBUNAL Appeal No. CIS/2054/2008
ADMINISTRATIVE APPEALS CHAMBER CIS/2946/2008
Before: UPPER TRIBUNAL JUDGE ROWLAND
Attendances:
For the Appellant: Ms Deok Joo Rhee of counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions
The Respondents neither appeared nor were represented.
Decisions:
In CIS/2054/2008, it is decided that the claimant did not have a right of residence merely by virtue of the residence permit issued to her on 7 or 15 February 2006 at any time material to the claim for income support she made on 12 April 2007, but consideration of other issues arising in the appeal is deferred and I give the following Directions –
(a) the claimant must submit, within one month of this decision being sent to her representative, a further written submission and any written evidence in support of her argument that she had a right of residence by virtue of being on vocational training at the material time and should in particular deal with the issue raised by the Secretary of State in Ms Arnold’s letter dated 16 February 2009 as to whether the claimant was “involuntarily unemployed”
(b) the Secretary of State must submit a written submission in response within one month of being sent the claimant’s further submission;
(c) both parties must state in their submissions whether they want an oral hearing on the issue whether the claimant had a right of residence by virtue of being on vocational training at the material time.
In CIS/2946/2008, the Secretary of State’s appeal is allowed. The decision of the appeal tribunal dated 12 March 2008 is set aside and there is substituted a decision to the effect that the claimant is not entitled to income support on her claim made on 1 June 2007.
REASONS FOR DECISION
1. Although neither claimant was represented at the hearing before me, I have been greatly assisted by written submissions by Mr Malcolm Crawford, a welfare rights officer of Derby Advice (Derby City Council) who acknowledges the assistance of the Child Poverty Action Group, for the first claimant, and Mr Brian Hitchcock, a solicitor of Leicester Community Legal Action Centre, for the second claimant. I am grateful to them and to Ms Rhee, who has appeared for the Secretary of State, for the clarity of their submissions.
2. In CIS/185/2008, I held that a residence permit issued under regulation 15 of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326) by the Secretary of State for the Home Department was what it purported to be and conferred on the person to whom it had been issued a right of residence in the United Kingdom that was effective until the permit expired or was revoked. The present cases are concerned with the effect of such permits since the 2000 Regulations were replaced by the Immigration (European Economic Area) Regulations 2006 (S.I. 2006/1003) on 30 April 2006.
3. The Secretary of State has appealed against my decision in CIS/185/2008, with my leave. He asked that the hearing of the present appeals be postponed to await the Court of Appeal’s decision but I refused the postponement because the Court of Appeal’s decision will be determinative only if it allows the Secretary of State’s appeal, which I do not regard as inevitable. The second claimant asked for a postponement in order to obtain funding from the Legal Services Commission. I refused that request too, because the application for funding had not been made and I was told that it would probably take the Legal Services Commission some months to determine it.
4. The first claimant is a Lithuanian national who came to the United Kingdom on six-month visas in 2001 and 2002 and again, permanently, in May 2003. On what basis she was admitted in 2003, I am not sure, but it has not been suggested that she had unconditional leave to enter. She was still in the United Kingdom when Lithuania acceded to the European Union on 30 April 2004. She obtained work and, having been employed in registered employment under the Accession (Immigration and Worker Registration) Regulations 2004 (S.I. 2004/1219) for more than a year, ceased to be an “Accession State worker requiring registration” and so acquired the same rights as most citizens of the European Union who are workers. On either 7 or 15 February 2006 – the permit itself says it was issued on 15 February but the covering letter sent to the claimant with the permit is dated 7 February – she was issued with a residence permit under regulation 15 of the 2000 Regulations, valid until 7 February 2011. At that time, she was still employed, although she may have been on maternity leave as her son was born two months later. Her employment ended on 27 July 2006. It appears that she separated from her partner in January 2007. On 12 April 2007, she claimed income support as a single parent. The claim was disallowed on 9 July 2007, on the ground that the claimant had no right of residence in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland and so 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)). The claimant appealed. In a carefully reasoned decision dated 20 November 2007, the tribunal allowed the appeal on the ground that, in the light of Baumbast and R v. Secretary of State for the Home Department (Case C-413/99) [2002] E.C.R. I-7091, the claimant had a right of residence in the United Kingdom while her daughter, then aged 9, remained in school here. In taking this approach, the tribunal followed the decision of Mr Recorder Hochhauser QC, sitting at Clerkenwell county court on 21 August 2007, in Ibrahim v London Borough of Harrow. The Secretary of State now appeals with the leave of a salaried tribunal chairman.
5. The second claimant is a Polish national who came to the United Kingdom on 3 March 2005. She obtained work from 20 March 2005. The precise date on which that employment ended in early 2006 has been the subject of dispute but the claimant obtained further employment from 7 March 2006 which ended on 4 November 2006 when the claimant claimed maternity allowance. On 3 October 2006, while she was still working, she was issued with a residence permit in the form in which such permits had been issued under the 2000 Regulations. Her daughter was born on 4 December 2006 and her maternity allowance expired on 11 May 2007. On 1 June 2007, she claimed income support as a single parent. On 19 June 2007, the claim was disallowed on the ground that the claimant was an Accession State worker requiring registration under the 2004 Regulations because she had not been in continuous employment for 12 months and that she therefore had no right of residence. Although gaps totalling up to 30 days between periods of employment are allowed, the Secretary of State took the view that there had been a gap of two months between the first and second periods of employment. The claimant appealed. The tribunal allowed the appeal on the ground that the claimant had ceased to be an Accession State worker requiring registration and that she had not lost her status as a worker at the time of her claim for income support and therefore had a right of residence as a worker under the 2006 Regulations. The Secretary of State now appeals with the leave of a salaried tribunal chairman.
6. As I have indicated, the common issue in these appeals is whether or not the residence permits issued to the claimants in these cases conferred rights of residence on the claimants at the material time. What distinguishes these cases from CIS/185/2008 is that here the question is what effect the residence permits had at dates after the 2006 Regulations had replaced the 2000 Regulations. Whereas regulation 15 of the 2000 Regulations made provision for the issuing of a residence permit, regulation 16 of the 2006 Regulations makes provision for the issuing of a registration certificate and paragraph 2(2) of Schedule 4 to the 2006 regulations has the effect that, with an immaterial exception, “a residence permit issued under the 2000 Regulations shall, after 29th April 2006, be treated as if it were a registration certificate issued under these Regulations”. All the parties submit that the change of language makes no difference but, of course, the Secretary of State submits that CIS/185/2008 was wrongly decided in respect of the effect of a residence permit whereas the claimants submit that it was rightly decided.
7. The Court of Appeal will tell us in due course whether CIS/185/2008 was rightly decided but Ms Rhee has not persuaded me to resile from what I said in that decision. She relied on a number of authorities but, in my judgement, only CIS/865/2008 supports her argument and I agree with Mr Crawford’s submission that that decision is not a strong authority. In paragraph 16 of that decision, the relevant issue was dealt with very briefly because the Commissioner simply relied upon his analysis in CPC/3588/2006, which he had decided some months earlier. However, CPC/3588/2006, like AP...
To continue reading
Request your trial