Remilien v. Secretary of State for Social Security Woke v. Chief Adjudication Officer CIS 472 1994
| Jurisdiction | UK Non-devolved |
| Judge | Judge J. Mesher |
| Judgment Date | 27 November 1997 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Income support and state pension credit |
| Docket Number | CIS 472 1994 |
| Appellant | Remilien v. Secretary of State for Social Security Woke v. Chief Adjudication Officer |
R(IS) 13/98
(Remilien v. Secretary of State for Social Security and Anor.)
(Wolke v Chief Adjudication Officer)
Mr. J. Mesher CIS/472/1994
4.5.95
CA (Sir Stephen Brown P, Kennedy and Phillips LJJ)
18.6.96
HL (Lord Browne-Wilkinson, Lord Slynn of Hadley,
Lord Hoffmann, Lord Hope of Craighead,
and Lord Hutton)
27.11.97
Person from abroad - European Economic Area nationals - whether Home Office letter constituted requirement to leave for the purposes of regulation 21(3)(h) of the Income Support (General) Regulations 1987
The claimant was a French national in receipt of income support from 11 June 1992 as a lone parent. She received a letter from the Home Office dated 8 December 1993, which stated that “in view of the fact that you are in the United Kingdom in a non-economic capacity and that you have become a burden on public funds, the Secretary of State is not satisfied that you are lawfully resident here under European Community law and you should now make arrangements to leave the United Kingdom”. The adjudication officer decided that the claimant was not entitled to income support from
8 December 1993 and the claimant appealed. The tribunal confirmed the adjudication officer’s decision that she fell within paragraph (h) of the definition of “person from abroad” in regulation 21(3) of the Income Support (General) Regulations 1987 because the Secretary of State had required her to leave the United Kingdom. The claimant appealed to the Commissioner
Held, by the Commissioner, allowing the appeal, that
a person might be “required to leave” the United Kingdom under regulation 21(3)(h) even if he is not subject to a deportation order (para. 15). However, the words used in the letter fell “short of the necessary degree of insistence or compulsion for it to be possible to say that on receipt of the letter the claimant was required to leave the United Kingdom” (para. 20)
The Commissioner decided that as there were no grounds for review, the claimant’s entitlement to income support did not cease. The Chief Adjudication Officer appealed and this appeal was joined with the case of Wolke in the Court of Appeal. Ms. Wolke, a Dutch national, had received a similar letter which concluded “I should add in that if you do not leave the United Kingdom on a voluntary basis then, in the present circumstances of your case, we will not take steps to enforce your departure from the United Kingdom.” Mr. Justice Popplewell granted a declaration to the effect that Ms. Wolke could not be said to have been required to leave the United Kingdom.
Held, by the Court of Appeal (Phillips LJ dissenting), allowing the appeals, that:
although the claimant and Ms. Wolke were not in breach of any United Kingdom immigration rules which would give rise to a liability to deportation, they did not have an enforceable Community right to remain in the United Kingdom. The Home Office letter was a requirement to leave within the meaning of regulation 21(3)(h) because it was authoritative and conveyed a serious instruction. The object of the amendment to regulation 21(3) was “to enable an adjudication officer to cut off the flow of benefits to an European Economic Area member who had no legal right to be here”.
The claimant and Ms. Wolke appealed to the House of Lords.
Held, by the House of Lords (Lord Slynn dissenting), allowing the appeals, that:
in the light of the terms of the judgement of the European Court of Justice in R v. the Immigration Appeal Tribunal, ex parte Antonissen [1991] ECRI-745, a requirement to leave would arise only when the person concerned had been placed under a legal obligation to leave. That would arise when a deportation order or an order for removal under article 15(2) of the Immigration (European Economic Area) Order 1994 had been made after any appeals had run their course. The Home Office letter did not amount to such a requirement, since it did not create a legal obligation to leave.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The claimant’s appeal is allowed. The decision of the Walthamstow social security appeal tribunal dated 13 June 1994 is erroneous in point of law, for the reasons given below, and I set it aside. I am able to give the decision which the appeal tribunal should have given on the facts as it found them (Social Security Administration Act 1992, section 23(7)(a)(i)). That decision is set out in paragraph 2 below.
2. My decision is that the decision awarding the claimant income support from 11 June 1992 for an indefinite period does not fall to be reviewed and revised with effect from 8 December 1993 or from any date down to 13 June 1994. In the period from 8 December 1993 to 13 June 1994 the claimant’s entitlement to income support is not precluded by the operation of paragraph (h) of the definition of “person from abroad” in regulation 21(3) of and paragraph 17 (b) of Schedule 7 to the Income Support (General) Regulations 1987.
The background
3. The claimant is a French national. That is shown by the copy of the passport issued to her on 22 February 1990, which also shows her then place of residence to have been Martinique. She has two children, born on 1 January 1990 and 27 April 1992. The claimant was born on 22 March 1968. She came to the United Kingdom with her then partner at some time after the birth of her first child and they lived together here. The relationship broke down and the claimant claimed income support on
11 June 1992 when she was living alone with her two children. The adjudication officer on 20 July 1992 awarded her income support from 11 June 1992. Entitlement continued through a change of address.
4. On 8 December 1993 the following letter was sent to the claimant from the Immigration and Nationality Department of the Home Office:
“It has come to the notice of this Department that you have claimed income support since 11 June 1992 and that you are still continuing to claim.
I should like to explain that as a European Community national you are free to enter and reside in the United Kingdom in order to exercise Treaty rights conferred by the Treaty of Rome. These include the right to seek or take employment, or to reside here in a non‑economic capacity provided that you have enough resources to avoid being a burden on public funds.
However, in view of the fact that you are in the United Kingdom in a non‑economic capacity and that you have become a burden on public funds, the Secretary of State is not satisfied that you are lawfully resident here under EC law and you should now make arrangements to leave the United Kingdom.”
An application for judicial review of the Secretary of State’s decision was made.
5. On 16 December 1993 the adjudication officer made a decision that the claimant was not entitled to income support from 8 December 1993 and did not satisfy the provisions of regulation 70 (urgent cases) of the Income Support (General) Regulations 1987 (“the Income Support Regulations”). An appeal against that decision was made on the claimant’s behalf. The adjudication officer’s written submission to the appeal tribunal on form AT2 asserted that the claimant was a “person from abroad” within paragraph (h) of the definition in regulation 21(3) of the Income Support Regulations because the Secretary of State had required her to leave the United Kingdom. It was also submitted that the claimant did not fall within regulation 70(3)(c) of the Income Support Regulations, because an application for judicial review was not an appeal under Part II of the Immigration Act 1971, and therefore did not qualify for payment as an urgent case.
6. The relevant part of regulation 21(3) provides:
“(3) In Schedule 7-
‘Person from abroad’ means a person, who-
...
(h) is a national of a Member State and is required by the Secretary of State to leave the United Kingdom;”
Under paragraph 17 of Schedule 7 to the Income Support Regulations a person from abroad who is a lone parent has an applicable amount of nil. Regulation 70(3)(c) provides:
“(3) This paragraph applies to a person from abroad within the meaning of regulation 21(3) (special cases) who‑
...
(c) is awaiting the outcome of an appeal made under Part II of the [Immigration Act 1971] (including any period for which the appeal is treated as pending under section 33(4) of that Act);”
The appeal tribunal’s decision
7. The claimant attended the hearing before the appeal tribunal on 13 June 1994 and was represented by Mr. Leon Daniel of Counsel. According to the chairman’s note of evidence, the thrust of the argument put forward by Mr. Daniel was that the letter of 8 December 1993 did not require the claimant to leave the United Kingdom.
8. The appeal tribunal...
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