LO v Secretary of State for Work and Pensions (IS)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Ward |
| Neutral Citation | [2017] UKUT 440 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | European Union law,European Union law - free movement,Ward,C |
| Date | 09 November 2017 |
| Published date | 21 November 2017 |
LO v SSWP (IS) [2017] UKUT 440 (AAC)
IN THE UPPER TRIBUNAL Case No CIS/4259/2013
ADMINISTRATIVE APPEALS CHAMBER
Before UPPER TRIBUNAL JUDGE WARD
Attendances:
For the Appellant: Mr Duncan Wall, Durham Welfare Rights
For the Respondent: Mr Dominic Bayne, (1 May) and Ms Julia Smyth (12
September) (instructed by DWP Solicitor)
Decision: I make an order under rule 14 prohibiting the disclosure or
publication of any matter likely to lead members of the public to identify
the children concerned in this case or their parents.
The appeal is dismissed. The decision of the First-tier Tribunal sitting at
Durham on 5 June 2013 under reference SC225/12/02126 did not involve the
making of a material error of law and is upheld.
REASONS FOR DECISION
Introduction
1. The present case highlights some of the formidable difficulties in EU law
terms which can arise where family relationships have been established when
freedom of movement rights are being exercised and subsequently run into
difficulty. While the award of jobseekers’ allowance, after the DWP’s decision
which is the subject of the present proceedings, to the appellant may have
taken the edge off her income difficulties and her situation may in other
respects have moved on, the case has nonetheless taken an inordinately long
time, due in no small measure to case law developments elsewhere affecting
a number of areas, the role of proportionality in freedom of movement cases;
EU citizenship and derivative rights; and unmarried partners. I am grateful to
the parties and their representatives for their forbearance and apologise for
any inconvenience caused. Because of the extended timescale and the
regular emergence of potentially relevant decisions of other courts, the
decision has prior to its issue been submitted to the parties’ representatives
as a draft, lest there be any matter on whi ch they had not previously had a
chance to make submissions but would wish to do so. It is right to record that
oral and written submissions in the case were principally directed to the
proportionality issue only. In particular, no submissions were made, whether
in response to the draft decision or otherwise, on the Surinder Singh issues
nor (as will become apparent, the point fails anyway for lack of evidence) on
behalf of the respondent in relation to derivative rights.
2. It is an inevitable consequence of freedom of movement that relationships
are formed between people of differing nationalities, who do not necessarily
live in the Member State of which they are nationals; that sometimes, children
may be born as the result of such relationships; and that sometimes,
LO v SSWP (IS) [2017] UKUT 440 (AAC)
regrettably, such relationships founder. Such issues feature in the caseload
of this Chamber and there are two more recent cases raising points very
similar to the specific point in the present case and which are stayed behind it.
A similar trend was noted by Advocate General Sharpston at [128] of her
Opinion in C-34/09 Ruiz Zambrano and are evident in some of the more
recent cases on derivative rights, cited at [80] below.
3. The structure of this decision is as follows:
Introduction 1 -
3
Chronology 4 -
7
The First-tier Tribunal’s decision 8 -
12
EU law 13 -
19
Human Rights Law 20 -
21
UK freedom of movement law 22
UK benefit law 23 -
24
UK family law 25 -
31
Applicability of Surinder Singh on entry to the UK? 32 -
35
Union Citizenship 36 -
40
Proportionality 41 -
71
Derivative Rights 72 -
90
Human Rights 91 -
98
Conclusion 99
Chronology
4. The appellant is a Spanish national born in March 1990. She met an
Englishman who was working in Spain, Mr B. She formed a relationship with
him and moved with him to the UK in September 2009. She worked in the UK
for approximately two months in late 2009. On 27 August 2010 she gave birth
to twins. Mr B was named on the birth certificates and so had parental
responsibility under Children Act 1989, s4(1)(a), as did the appellant. There is
no suggestion that the children had ever gone to Spain, at any rate for more
than a holiday. The appellant worked again, for the three months to 1 July
2011, stopping because of child care issues. Subsequently, the appellant and
Mr B separated and on advice from her solicitor she claimed income support
on 13 February 2012, at which point her children were just under 18 months
old. What she and the children lived on when her claim was rejected is not in
evidence (although by the time of the First-tier Tribunal hearing in June 2013
she was – whether correctly or not - in receipt of child tax credits and child
benefit and, it appears, housing benefit: see statement of reasons para 4).
There is no suggestion that at the time of her claim for income support she
had registered with the jobcentre as available for, and actively seeking, work.
It is conceded that she did not have retained worker status. On the
chronology there can be no question of remaining a worker though the
operation of the CJEU’s decision in C-507/12 Saint Prix.
LO v SSWP (IS) [2017] UKUT 440 (AAC)
5. Proceedings under the Children Act 1989 were commenced, in which she
was legally represented. On 5 April 2012 there was a hearing before the
District Judge who made an order in terms that, inter alia, in the interim and
until further order the twins should reside with Mr B from 5pm on Fridays to
10am on Mondays and with the appellant for the rest of the time. The order
contained warnings about the provisions of sections 13(1) and (2) of the
Children Act 1989 and the Child Abduction Act 1984 and an information note
about how a person with parental responsibility could set about preventing the
issue of a passport to the children. I return to these various provisions below.
The matter was listed for a further hearing on 7 June 2012.
6. As is now known, the case was subsequently adjourned for mediation,
which proved unsuccessful, and eventually listed for a final hearing on 28
April 2014, at which an application by the appellant for permission to take the
twins to Spain permanently was refused and an order made for the children to
live with each parent under a pattern in which the appellant had them for the
greater part of the time. These matters post-dated the date of decision under
appeal.
7. On 1 May 2012 the claim for income support was effectively rejected, on
the basis that the appellant was a “person from abroad” and her “applicable
amount” was £nil. The relevant provisions, which need not be set out, are
Income Support (General) Regulations 1987 (“the 1987 Regulations”), reg
21AA and sch 7, para 17.
The First-tier Tribunal’s decision
8. The appellant appealed to the First-tier Tribunal (“FtT”) which on 5 June
2013 concluded that she did not have the right to reside on any of a number
of defined bases. The appellant had been in the UK for more than three
months. She was not self-employed, self-sufficient or a student. She had not
worked since 1 July 2011 and had given up that work to take over the child
care because Mr B had been struggling to manage it. Thus she had not
retained worker status. Any efforts to find a job were limited and spasmodic
and she had not applied for jobseeker’s allowance. She was neither a family
member nor an extended family member. Nor did she have rights derived
from the rights her children enjoyed pursuant to the judgment in C-34/09 Ruiz
Zambrano, as there was and is no suggestion that they would have to leave
the territory of the European Union. Nor was there any question of her having
a right as the primary carer of a child in school as the children were not
receiving any form of education outside the home (this was a reference to the
rights conferred by Art 10 of Regulation (EU) No 492/2011 and previously
found in Art 12 of Regulation 1612/68 – see below.)
9. Finally the tribunal observed:
“Article 21(1) of the Treaty on the Functioning of the European Union
cannot confer rights which go beyond what is conferred by Directive
2004/38 unless it can be shown that there is a lacuna in the Directive.
Although the Tribunal has considerable sympathy with [the appellant]
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