Jeleniewicz v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lady Justice Arden,Mr Justice Lewison |
| Judgment Date | 23 October 2008 |
| Neutral Citation | [2008] EWCA Civ 1163 |
| Date | 23 October 2008 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2007/2881 |
[2008] EWCA Civ 1163
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER
MR COMMISSIONER JACOBS
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lady Justice Arden and
Mr Justice Lewison
Case No: C3/2007/2881
CIS/1545/2007
Mr Stephen Knafler (instructed by Bennett Wilkins) for the Appellant
Mr Tim Ward (instructed by Solicitor to Department for Work and Pensions) for the Respondent
Hearing date: 11 th July 2008
Short introduction
This is an appeal in an income support case. The decision appealed is that of the Social Security Commissioners (Mr Commissioner Jacobs) on 20 September 2007. The right of appeal is confined to questions of law.
A right to reside in the UK is a necessary condition for claiming income support. Directive 93/96/EEC (the Directive) and the implementing Immigration (European Economic Area) Regulations 2000 (the 2000 Regulations) laid down the conditions in which a student from abroad attending a vocational training course in the UK acquired a right to reside in the UK. The right to reside extended to the student's spouse and to their dependent children as family members. (The Directive and the 2000 Regulations were replaced by new measures as from 30 April 2006, but that does not affect their application to this case.)
Entitlement to income support is determined by reference to the facts at the date of the claim: section 8(2) Social Security Act 1998 (the 1998 Act). The provisions affecting “a person from abroad” and the treatment of such a person as “habitually resident” in the UK for the purposes of income support are contained in sections 124(1)(b) and (4) and 135 of the Social Security Contributions and Benefits Act 1992 and the Income Support (General) Regulations 1987 paragraph 17 of Schedule 7 and Regulation 21(3) and (3G.) As their general effect is agreed I need not set out the detailed provisions in this judgment. The appeal turns on the construction of the 2000 Regulations and the Directive rather than on the income support legislation. The material parts of the Directive and the 2000 Regulations are summarised and, where necessary, quoted verbatim below.
The Commissioner allowed the Secretary of State's appeal from the decision of the Fox Court Appeal Tribunal on 30 January 2007. Ms Alicja Jeleniewicz (the Claimant) is a Polish national. In the Appeal Tribunal she was successful in her appeal from the decision of the Secretary of State on 24 March 2006 terminating her income support. The Appeal Tribunal held that the Claimant had a right to reside in the UK. The basis of that decision was that the she was the parent and primary carer of a child, Victoria. Victoria, it was held, had a right to reside in the UK as the dependent child of her father, Mr Abba. He was formerly the Claimant's partner. It was held that he had a right to reside in the UK as a student from abroad (France) pursuing a vocational training course in the UK. That right extended to Victoria as his dependent child and, via her, to the Claimant.
In holding that the decision of the Appeal Tribunal was “hopelessly confused” and erroneous in law the Commissioner exercised his powers under section 14(8) of the 1998 Act to make findings of fact. His central finding of primary fact was that the Claimant had not shown that Victoria was Mr Abba's “dependent child.” It was not contended that, at the material time, the Claimant had any independent right to reside in the UK, either as a student or as a worker, or an indirect right, as Mr Abba's spouse (they were not married.) She claimed an indirect or inferred right to reside in the UK via Victoria and Mr Abba. The Commissioner concluded that none of them had a right to reside in the UK within the 2000 Regulations or under the Directive. From and including 29 March 2006 the Claimant's applicable amount for the purposes of her entitlement to income support was nil so that she was not entitled to any payment. The Secretary of State was accordingly entitled to terminate the Claimant's income support.
Waller LJ gave permission for this second appeal on 6 March 2008 on the ground that the Claimant's appeal raised a point of some general importance. In addition to the construction of the 2000 Regulations and the Directive points have been raised on the relevance of the right to family life under Article 8 of the European Convention of Human Rights and on the inquisitorial and investigative nature of the Commissioner functions on hearing an appeal. An application to amend the grounds of appeal to allow all the necessary points to be argued was granted without opposition from the Secretary of State.
The precise issues for resolution on the appeal will be clarified with the help of a short summary of the principal provisions of the domestic and EC law.
The law
Under the Directive Member States are required to recognise that a student, who is on a vocational training course in another Member State, has a right of residence in the host Member State. The right is designed to promote vocational training (and therefore free movement of workers) within the EC. It is recognised that the right of residence can only be genuinely exercised if it is granted in addition to the student's spouse and their dependent children. As it is stated in the recitals
“3. ….access by a national of one Member State to vocational training in another Member State implies, for that national, a right of residence in that other Member State.”
It is also recited that
“6. …the beneficiaries of the right of residence must not become an unreasonable burden on the public finances of the host Member State.”
Article 1 lays down a series of conditions for students to acquire a right to reside in the host state -
“In order to lay down conditions to facilitate the exercise of the right of residence and with a view to guaranteeing access to vocational training in a non-discriminatory manner for a national of a Member State who has been accepted to attend a vocational training course in another Member State, the Member States shall recognise the right of residence for any student who is a national of a Member State and who does not enjoy that right under other provisions of Community law, and for the student's spouse and for their dependent children, where the student assures the relevant national authority, by means of a declaration or by such alternative means as the student may choose that are at least equivalent, that he has sufficient resources to avoid becoming a burden of the social assistance system of the host Member State during their period of residence, provided that a student is enrolled in a recognised educational establishment for the principal purpose of following a vocational training course there and that he is covered by sickness assurance in respect of all risks in the host Member State.”
Article 4 relates to the duration of the right to reside-
“The right of residence shall remain for as long as the beneficiaries of that right fulfil the conditions laid down in Article 1.”
The 2000 Regulations were intended to implement the provisions of the Directive into domestic law. Regulation 14 provided that “a qualified person”, defined in Regulation 5 to include a student who is an EEA national and is in the UK, has a right to reside in the UK. Qualified persons include “family members” e.g. the student's spouse and dependent children: Regulation 6(2).
Under Regulation 3(1) a “student” means a person who-
“(i) is enrolled at a recognised educational establishment in the United Kingdom for the principal purpose of following a vocational training course;
(ii) assures the Secretary of State by means of a declaration, or by such alternative means as he may choose that are at least equivalent, that he has sufficient resources to avoid him becoming a burden on the social assistance system of the United Kingdom; and
(iii) is covered by sickness assurance in respect of all risks in the United kingdom.”
The effect of a student's declaration of sufficient resources within Regulation 3(1) (ii) can be conveniently determined at this point. At one stage it was argued for the Claimant that the making of a declaration was a one-off requirement and that, provided that a declaration was made, the provisions of Articles 1 and 4 of the Directive would remain satisfied.
This submission was not pressed at the hearing of the appeal. It fails. It takes no account of the fact that a student's circumstances may change after a declaration has been made. The effect of the changes may be that the...
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