Gingi v Secretary of State for Work & Pensions
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON,LADY JUSTICE ARDEN,LORD JUSTICE SCHIEMANN |
| Judgment Date | 14 November 2001 |
| Neutral Citation | [2001] EWCA Civ 1685 |
| Docket Number | Case No: A1/2001/0084 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 November 2001 |
[2001] EWCA Civ 1685
Lord Justice Schiemann
Lord Justice Buxton and
Lady Justice Arden
Case No: A1/2001/0084
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONERS
(MR COMMISSIONER JACOBS)
Royal Courts of Justice
Strand,
London, WC2A 2LL
MR JOHN HOWELL QC and MR BEN JAFFEY (instructed by Leigh Day & Co for the Appellant)
MR TIM WARD (instructed by The Office of the Solicitor, Department for Work and Pensions for the Respondent)
Introduction
These proceedings are a gallant attempt to extend the protection of Community law to a case containing no Community element, and which does not fall within the reach of the Community legal order.
Miss Gingi is a British citizen, originally resident in Cyprus, outside the Community. She came to the United Kingdom for the first time on 16 September 1998. She made a claim for income support under the Income Support (General) Regulations 1987 on 5 October 1998. That was refused on the basis that by the date of refusal, 12 October 1998, she was not "habitually resident" in the United Kingdom as regulation 21(3) requires if an applicant is not to be treated as a "person from abroad" whose entitlement is nil. In Nessa v Chief Adjudication Officer [1999] 1 WLR 1937 [ Nessa] the House of Lords held, in a judgment delivered by Lord Slynn of Hadley, at p 1942D-G, that
"as a matter of ordinary language a person is not habitually resident in any country unless he has taken up residence and lived there for a period….[a person coming to the United Kingdom]….must show residence in fact for a period which shows that the residence has become 'habitual'"
It was this analysis that Mr Commissioner Jacobs applied in holding that the tribunal from which he was hearing an appeal had not erred in law by finding that Miss Gingi had not become habitually resident in the United Kingdom by 12 October 1998, some four weeks after her arrival here.
An appeal lying to this court only on a point of law, and the Commissioner having applied a clear decision of the House of Lords, that might be thought to be the end of the matter: and it is indeed agreed that in purely domestic law terms the case is necessarily concluded by Nessa. Miss Gingi however appeals to Regulation 1408/71 EEC, on the application of social security schemes to persons moving within the Community. That provides, by article 10a.1, that
"persons to whom this Regulation applies shall be granted the special non-contributory benefits referred to in Article 4(2a) [which it is agreed include income support] exclusively in the territory of the Member State in which they reside, in accordance with the legislation of that State….Such benefits shall be granted by and at the expense of the institution of the place of residence"
Miss Gingi's interest in this provision stems from the fact that by article 1h "residence" means "habitual residence"; and that in case C-90/97 [1999] ECR I-1075 ( Swaddling) the Court of Justice held, at paragraph 30 of its judgment, that
"the length of residence in the Member State in which payment of the benefit in issue is sought cannot be regarded as an intrinsic element of the concept of residence within the meaning of Article 10a of Regulation No 1408/71"
The concept of "intrinsic" element is no doubt to be explained in the context of the Court having followed the view of Mr Advocate General Saggio who said, at paragraph 19 of his Opinion, [1999] ECR I-1085, that
"although the length of the person's stay in the territory of a State may be used to gauge his intention to make that State the principal and permanent centre of his interests, it cannot be treated as a constituent element-that is to say, a conditio sine qua non-of residence"
That view as to the application of the concept of habitual residence in Regulation 1408/71 plainly contradicts the English view of the application of the concept of habitual residence in regulation 21(3): since the House of Lords in Nessa did regard some length of stay as a sine qua non of habitual residence. The problem for Miss Gingi is to devise a way in which that Community approach to "habitual residence" can be applied to her case in the United Kingdom.
Miss Gingi's Community law argument
Mr Howell QC was admirably frank as to the respects in which Miss Gingi could not benefit from the approach to habitual residence adopted in Swaddling. First, he fully accepted the admittedly banal principle of the Community legal order that rules of Community law, and in particular rules in relation to freedom of movement such as those contained in Regulation 1408/71, cannot be applied to activities that, so far as their connexion with the Community is concerned, are confined in all respects within a single member state. A convenient statement of that principle, if such were needed, is to be found in Case C-153/91 [1992] ECR I-4973 [8] ( Petit). Miss Gingi's only connexion with the Community was within the United Kingdom. Second, Regulation 1408/71 addresses free movement within the Community of workers, conveniently called migrant workers, and their families. Miss Gingi had not moved or sought to move within the Community; and even if she had done so it was not established that she was a worker in terms of the Regulation.
The argument therefore had to run as follows. If a case arose of a migrant worker from another member state, the English courts would be obliged to apply to him or her the Community law as laid down in Swaddling. The correct way for the national court to achieve that end was to interpret the national provision, in this case regulation 21(3), to accord with Community law. Only if such interpretation was impossible should the court achieve the same end by holding the domestic law to be inapplicable to the Community case: see Case 157/86 [1988] ECR 673 [11] ( Murphy). Therefore, faced with, say, a French worker the English court would have to interpret "habitual residence" in the terms required by the Court of Justice in Swaddling, rather than in the terms required by the House of Lords in Nessa. That therefore became the "meaning" of those words in regulation 21(3). Words in a statutory provision could only have one meaning: the meaning could not change according to the facts of the case. Accordingly, the Swaddling, Community, meaning, which excluded a waiting period as a necessary requirement of habitual residence, must be applied in every case to which it was sought to apply regulation 21(3). That was therefore the meaning that had to be applied to the case of Miss Gingi, as to the case suggested in the appellant's written submissions of an American citizen coming to the United Kingdom on a five-year fixed term work contract.
Mr Howell did not shrink from the wider implications of this argument. The argument would have to be applied wherever an expression was used both in domestic legislation and also in Community legislation to address a case that differed in the two instances only because of a difference in Community connexions. Further, the argument would apply to any such domestic legislation that did or might apply in the case of any person entitled to the protection of Community law, however few in number the latter might be. Although Mr Howell stressed, and was right to stress, that this was not the present case, he nonetheless agreed that the principle on which his argument was based would apply even if only one person with Community rights might be affected by the domestic legislation. However short the Community tail, it must still wag the national dog. And as to authority, his argument entailed that Nessa had been decided per incuriam of the Community dimension; and that Lord Slynn of Hadley, and the specialist leading counsel who addressed the House presided over by him, had not appreciated the conclusive relevance of Community law to their task of interpretation.
Such inconveniences have of course to be borne as best we may if overriding principles of Community law require that we should suffer them. I am however satisfied that we are not driven to that conclusion.
The argument analysed
Miss Gingi's argument fails for two, interrelated, reasons. It does not sufficiently respect the distinction between the scope of the domestic and of the Community legal orders; and it depends for its logical force upon an approach that categorises the court's task in terms of determining the meaning of particular words used in legislation, as opposed to determining the factual situations to which that legislation is intended to apply.
I have already mentioned the well-accepted principle that Community law applies only to cases falling within the Community legal order. Community law requires a member state, when faced with such a case, to apply to it the conclusions of Community, not of domestic, law. How in administrative or structural terms that is achieved is a matter for the national legal order. But the Community legal order requires no more than that. In respect of cases not falling within the Community legal order it has nothing to say.
That is strikingly illustrated by a case shown to us by Mr Ward for the Secretary of State, Case C-264/96 [1998] ECR I-4695 ( ICI v Colmer). British tax legislation made consortium relief available only to companies whose subsidiaries were located in the national territory. The Court of Justice held that that rule, when applied in the case of subsidiaries established in other member states, was inconsistent with Community principles of freedom of...
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