Collins v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jonathan Parker,Lord Justice Maurice Kay,Lord Justice Brooke,Vice President of the Court of Appeal (Civil Division) |
| Judgment Date | 04 April 2006 |
| Neutral Citation | [2006] EWCA Civ 376 |
| Docket Number | Case No: C3/2005/1584 |
| Date | 04 April 2006 |
| Court | Court of Appeal (Civil Division) |
[2006] EWCA Civ 376
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM A SOCIAL SECURITY COMMISSIONER
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Brooke
Vice President of The Court of Appeal (Civil Division)
Lord Justice Jonathan Parker and
Lord Justice Maurice Kay
Case No: C3/2005/1584
Richard Drabble QC (instructed by Child Poverty Action Group) for the Appellant
Christopher Vajda QC and Josh Holmes (instructed by The Treasury Solicitor) for the Respondent
INTRODUCTION
At issue on this appeal is the proper interpretation to be placed on a judgment of the European Court of Justice ("the ECJ") in response to a reference made by the Social Security Commissioner (Mr J. Mesher) on a claim by the appellant, Mr Brian Collins, for job seeker's allowance (" JSA") .
Mr Collins was born in 1957 in the US and was brought up there. He has dual US and Irish nationality. By virtue of his Irish nationality he is a citizen of the European Union.
He went to university in the US, graduating in 1980. In 1978, as part of his university studies, he spent one semester in the UK. After graduating, he spent some ten months in London doing casual and part-time work. He returned to the US in 1981 and stayed there until 1985. During that time he was in employment. From 1985 until 1987 he worked in Africa as an aid worker. In 1988, after spending some six months in the US, he moved to South Africa, where he studied history and worked as a teacher. In 1997 he returned to the US to live with his mother, having been refused a right of permanent residence in South Africa. For some six months he worked in the US in sales and as a history teacher. He then decided to settle in the UK. Before coming to the UK he took the necessary steps to acquire a new Irish passport, which was issued on 9 February 1998. He arrived in the UK on 31 May 1998, with the intention of finding work in the social services sector. On 8 June 1998 he claimed JSA.
On 1 July 1998 the adjudicating officer held that Mr Collins was a "person from abroad" as defined in the relevant regulations, and that the amount of JSA to which he was entitled was accordingly nil. On 18 February 1999 an appeal tribunal dismissed Mr Collins' appeal. He appealed to the Commissioner. By his decision dated 29 April 2002, the Commissioner held that the tribunal had failed adequately to deal with certain aspects of European law, and that its decision should be set aside. However, before substituting his own findings the Commissioner referred three questions to the ECJ for a preliminary ruling. I shall refer hereafter to the Commissioner's decision dated 29 April 2002 as "the Order for Reference".
By its judgment dated 23 March 2004 ( Case C-138/02, [2004] All ER (EC) 1005) the ECJ gave its answers to the three questions referred to it by the Commissioner. The effect of those answers was to leave two remaining issues for decision by the Commissioner. A further oral hearing took place before the Commissioner on 19 November 2004 at which he heard argument on those two issues.
By his decision dated 4 March 2005 ("the Decision") the Commissioner determined both issues in favour of the Secretary of State, and dismissed Mr Collins' appeal. Mr Collins now appeals to this court against the Commissioner's determination of one of those issues. He does so with permission granted by the Commissioner on 10 June 2005.
It is common ground that the resolution of that issue turns upon the proper interpretation to be placed upon the ECJ's answer to the third of the questions referred to it by the Commissioner.
DOMESTIC LEGISLATION RELATING TO JSA
In paragraphs 6 to 8 of the Order for Reference the Commissioner explained the nature of JSA, and the conditions for its availability, as follows:
"6. [JSA] is a social security benefit provided under the Jobseekers Act 1995, operative from 7 October 1996. It is a replacement for unemployment benefit (a contributory benefit) and income support (a means-tested benefit) for the unemployed. There are two routes to entitlement, through contribution-based conditions and through income-based conditions. In the present case, the income-based conditions are those which are relevant, as the claimant had made no contributions that would qualify him for contribution-based JSA. As well as satisfying the conditions of being available for and actively seeking employment, of having entered into a jobseeker's agreement, not being engaged in remunerative work etc, a claimant's income must not exceed the applicable amount and his capital must not exceed a specified amount. These conditions are very similar to those in the income support scheme. The benefit payable is to be the applicable amount, if the claimant has no income, or otherwise the amount by which the applicable amount exceeds the claimant's income (section 4(3) ) . The only condition related to residence in the Jobseekers Act 1995 is that the claimant "is in Great Britain" (section 1(2) (i) ) .
7. However, the Act requires regulations to prescribe how applicable amounts are to be determined (section 4(5) ) . Regulation 85(1) of the Jobseeker's Allowance Regulations 1996 ("the JSA Regulations") provides that in circumstances specified in column (1) of Schedule 5 to the JSA Regulations the applicable amount is to be the amount prescribed in column (2) . Paragraph 14(a) of Schedule 5 prescribes an applicable amount of nil for a person from abroad who is a single claimant. In regulation 85(4) an additional definition of "person from abroad" is, as in force at the relevant time:
'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
(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.'
8. The effect is thus that a claimant who is not habitually resident in the UK or in one of the other prescribed territories cannot qualify for the payment of any income-based JSA. The rule is the same as that prescribed in the case of income support and considered by the [ECJ] in [ Robin Swaddling v. Adjudication Officer [1999] ECRI-1075]"
THE TRIBUNAL'S DECISION
The tribunal held that Mr Collins was not a 'worker' for the purposes of Council Regulation (EEC) 1612/68, and that he did not have a right to reside in the UK pursuant to Council Directive 68/360 EEC: hence he did not fall within paragraph (a) of regulation 85(4) . Since it was common ground that paragraphs (b) and (c) of regulation 85(4) did not apply to him, it followed that the 'applicable amount' in his case was nil unless, as at 1 July 1998, he was 'habitually resident' in the UK. Applying the domestic test of habitual residence, the tribunal found that he was not habitually resident in the UK on 1 July 1998. It accordingly dismissed his appeal.
THE ORDER FOR REFERENCE
On Mr Collins' appeal to the Commissioner, the Commissioner held (in paragraph 4 of the Order for Reference) that the Tribunal had failed to deal adequately with certain aspects of European law, in that: (a) it had failed to explain properly why it had rejected Mr Collins' case that he was a 'worker' for the purpose of Council Regulation (EEC) 1612/68; and (b) it had failed to deal with his case that he had a right to reside in the UK pursuant to Council Directive 68/360 EEC. The Commissioner also held that the Tribunal had erred in not applying the correct approach to the concept of residence in relation to cases arising under article 10a of Council Regulation (EEC) 1408/71. He accordingly held (in paragraph 5 of the Order for Reference) that Mr Collins' appeal must be decided afresh. However, he continued:
"To decide the appeal it is necessary to resolve a question or questions of Community law to which in my judgment the answer is not clearly provided by the Court's jurisprudence. Accordingly, I have referred to the Court the questions set out at the end of this Order."
In paragraph 11 of the Order for Reference, the Commissioner accepted that Mr Collins' intention in returning to the UK was to work in the social services sector as a care worker and that he intended to live and work in the UK for some significant length of time. The Commissioner also accepted that by 8 June 1998 Mr Collins had started looking for work by registering with employment agencies, looking in local newspapers and visiting the Jobcentre: that is to say, he accepted that Mr Collins' search for work was genuine.
In paragraph 13 of the Order for Reference the Commissioner found that, applying the test of 'habitual residence' approved by the House of Lords in Nessa v. Chief Adjudication Officer [1999] 1 WLR 1937, "on no one day within the period from 8 June 1998 to 1 July 1998 was [Mr Collins] habitually resident in the UK or in another prescribed...
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