CPC 1433 2008

JurisdictionUK Non-devolved
JudgeOther Judges / Other Commissioners/Deputy Commissioners
Judgment Date31 July 2008
Docket NumberCPC 1433 2008
CourtUpper Tribunal (Administrative Appeals Chamber)
SOCIAL SECURITY ACTS 1975 TO 1990

[2010] AACR 18

(Pedro v Secretary of State for Work and Pensions [2009] EWCA Civ 1358)

CA (Mummery, Sullivan and Goldring LJJ)              CPC/1433/2008

14 December 2009

Residence and presence conditions – right to reside – dependent family member – whether dependency in country of origin required

The claimant, a Portuguese national, came to the United Kingdom in 2004 to join her son. She initially received jobseeker’s allowance, but on reaching the age of 60, claimed state pension credit. That claim was refused on the ground that she was deemed not to be “in Great Britain” by virtue of regulation 2 of the State Pension Credit Regulations 2002, as she did not have a right to reside in the United Kingdom. The claimant appealed and a tribunal upheld her appeal, finding that she should have been treated as “in Great Britain” under regulation 2(4) as the dependent family member of an EU national who had retained worker status under the terms of the Citizens’ Directive (2004/38/EC). The Secretary of State’s appeal to the Commissioner was allowed. On the claimant’s appeal to the Court of Appeal it was common ground that the claimant was a “family member” as defined by Article 2(2)(d) of the Directive. The issue was whether she was “dependent”. The Secretary of State argued that it was necessary for dependency to have existed at the time of entry to the United Kingdom, citing Case C-1/05 Jia v Migrationsverket [2007] QB 545, followed in KG (Sri Lanka) and AK (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 13; [2008] Imm AR 343 and Bigia and others v Entry Clearance Officer [2009] EWCA Civ 79, and referring to Guidance from the Commission to the European Parliament

Held, allowing the appeal, that

  1.                 the Secretary of State’s interpretation of Articles 2(1) and 3(1) could realistically result in a person deciding not to move to another Member State to work or, having moved, to be encouraged to return to his State of origin, and so would not be consistent with the purpose of the Directive, or give effect to it (Case C-291/05 Minister voor Vereemdelingenzaken en Integratie v RNG Eind [2007] ECR 1-10719 and Case C-127/08 Metock and Others v Minister for Justice, Equality and Law Reform [2009] QB 318; [2008] ECR 1-06241 followed) (paragraphs 58 to 60);
  2.                 when in Jia the court referred to the need for material support having to exist in the State of origin, it did so on the basis of what was said in Article 4(3)(e) of Directive 68/360, but Article 8(5)(d) of the Citizens’ Directive says nothing to suggest that documentary evidence of an Article 2(2)(d) dependency need emanate from the State of origin, in specific contrast to “other family member cases” under Article 3(2)(a), where under Article 8(5)(e) the relevant authority of the country of origin is referred to, and so the basis of the decision in Jia, insofar as it concerns family members, falls away in a case involving the Citizens’ Directive (paragraph 63);
  3.                 Article 2(2), by contrast with Article 3(2)(a), does not specify when the dependency has to have arisen nor does it require that the relative must be dependent in the country of origin and so Article 2(2)(d), together with Article 8(5)(d), suggests that dependency in the State of origin need not be proved for family members. Such an interpretation reflects the policy of the Directive to strengthen and simplify the realisation of realistic free movement rights of Union citizens compatibly with their family rights (paragraph 67);
  4.                 it followed that the proof of dependence by Mrs Pedro on her son in the United Kingdom, accepted by the appeal tribunal, would suffice under Article 2(2)(d) and that the guidance promulgated by the European Commission was incorrect, at least insofar as it concerned facts such as the present (paragraphs 69 to 72).

 

DECISION OF THE COURT OF APPEAL

 

Miss Helen Mountfield (instructed by Child Poverty Action Group) appeared for the appellant.

 

Mr David Blundell (instructed by the Solicitor, Department for Work and Pensions) appeared for the respondent.

 

Judgment (reserved)

 

LORD JUSTICE GOLDRING:

 

Introduction

 

1. The appellant is a 62 year old Portuguese national. She came to the United Kingdom in 2004 to join her son Samora. She has lived with him ever since. He has worked in the United Kingdom. He has also claimed jobseeker’s allowance when unemployed. The appellant has for the most part been financially dependent upon him. Until her 60th birthday, on 9 January 2007, she claimed jobseeker’s allowance. When she became ineligible for that, she claimed state pension credit. On 11 June 2007 that was refused. The Secretary of State said that she did not fulfil the definition of being “in Great Britain”. On 13 December 2007 the social security appeal tribunal ruled that Secretary of State was wrong; she should have been treated as “in Great Britain” as the dependent family member of an EU national who had retained worker status under the terms of the Citizens’ Directive (2004/38/EC). On 31 July 2008 Deputy Commissioner Ramsay allowed the Secretary of State’s appeal. This appeal against the decision of the Deputy Commissioner raises two issues: first, whether the appellant can be deemed to be “in Great Britain” within the meaning of Regulation 2(4) of the State Pension Credit Regulations 2002 (SI 2002/1792) (the Regulations) on the grounds that she is a dependent family member of her son under Article 2 of the Directive; second, whether the legal test of “dependence” for the purposes of European law for those family members to whom the Directive applies should be assessed in the country of origin (here Portugal).

 

Legal framework

 

The domestic legislation

 

The State Pension Credit Act 2002

 

2. By section 1(2) of the State Pension Credit Act 2002:

 

“A person is entitled to state pension credit if –

 

(a) he is in Great Britain; …

 

(5) Regulations may make provision for the purposes of this Act –

 

(a) as to circumstances in which a person is to be treated as being or not being in Great Britain; …”

 

The State Pension Credit Regulations 2002

 

3. By regulation 2 of the State Pension Credit Regulations 2002:

 

“(1) A person is to be treated as not in Great Britain if, subject to the following provisions of this regulation, he is not habitually resident in the United Kingdom … .

 

(2) No person shall be treated as habitually resident in the United Kingdom … unless he has a right to reside in … the United Kingdom … other than a right to reside which falls within paragraph (3).

 

(3) A right to reside falls within this paragraph if it is one which exists by virtue of, or in accordance with, one or more of the following –

 

(a) regulation 13 of the Immigration (European Economic Area) Regulations 2006;

 

(b) regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the person is –

 

(i) a jobseeker for the purpose of the definition of ‘qualified person’ in regulation 6(1) of those Regulations, or

 

(ii) a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker;

 

(c) Article 6 of Council Directive No. 2004/38/EC; or

 

(d) Article 39 of the Treaty establishing the European Community (in a case where the person is seeking work in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland).

 

(4) A person is not to be treated as not in Great Britain if he is –

 

(a) a worker for the purposes of Council Directive No 2004/38/EC;

 

(b) a self-employed person for the purposes of that Directive;

 

(c) a person who retains a status referred to in sub-paragraph (a) or (b) pursuant to Article 7(3) of that Directive;

 

(d) a person who is a family member of a person referred to in sub-paragraph (a), (b) or (c) within the meaning of Article 2 of that Directive;

 

…”

 

The European legislation

 

4. By Article 18 of the European Community Treaty:

 

1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.”

 

Directive 2004/38/EC (the Citizens’ Directive)

 ...

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