JS v Secretary of State for Work and Pensions (IS)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wright |
| Neutral Citation | [2019] UKUT 135 (AAC),[2019] UKUT 135 (AAC),[2019] AACR 24 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | European Union law,Residence,presence conditions,European Union law - workers,presence conditions - right to reside,Wright,S |
| Date | 16 April 2019 |
| Published date | 30 April 2019 |
JS v SSWP (IS) [2019] UKUT 135 (AAC)
CIS/1748/2012
1
IN THE UPPER TRIBUNAL Appeal No: CIS/1748/2012
ADMINISTRATIVE APPEALS CHAMBER
Before: Upper Tribunal Judge Wright
DECISION
The Upper Tribunal dismisses the appeal of the appellant.
The decision of the First-tier Tribunal sitting at Newcastle-
upon-Tyne on 7 February 2012 under reference
SC236/11/01302 did not involve any error on a material point
of law and therefore the decision is not set aside.
This decision is made under section 12(1) and 12(2)(a) of the
Tribunals, Courts and Enforcement Act 2007.
Representation: Benjamin Williams of counsel and Mike
Robinson of Darlington Citizens Advice
Bureau for the appellant.
Julia Smythe of counsel for the Secretary of
State.
REASONS FOR DECISION
Introduction
1. This appeal has taken an exceptionally long time to decide. At its heart
it concerns whether the appellant had a right to reside at the time he
made his claim for income support as far back as 9 March 2011. The
particular issue arising on this appeal is whether the appellant’s
personal circumstances in March 2011 – broadly put at this stage, he
had given up his employment in February 2011 to care for his very
young (and in one case seriously disabled) children because they
otherwise would be ‘taken into care’ – conferred on him a right reside
under EU law.
JS v SSWP (IS) [2019] UKUT 135 (AAC)
CIS/1748/2012
2
2. Part of the reason for the very extensive delay has been the changing
focus of the arguments on the appeal, such changes reflecting the
developments in the caselaw on ‘right to reside’. The hearing of the
appeal then took place before me in March of 2017. After that hearing
there was a further, extensive period of time in which the appellant and
his representative were seeking to obtain from social services more
detailed evidence supporting the case that the appellant’s children
would have been taken into care in March 2011 had he not ceased
employment. Ultimately, however, those evidence seeking efforts
proved unsuccessful. The further very extensive delay since then has
been mine, for which I apologise.
Relevant background
3. The appellant’s claim in March 2011 for income support was, in effect,
refused on the basis that he did not have a right to reside in the United
Kingdom and his appeal against that decision was disallowed by the
First-tier Tribunal in February 2012. The First-tier Tribunal set out he
relevant facts and its reasons why the appeal failed as follows.
“The appellant.…is a Dutch national and came to the UK in November
2006. He had lived here continuously since then working for [name of
employer] at team Valley from 3 January 2007 to 23 February 2011.
He left because Social Services became involved with his family and
suggested that if he gave up his job they would not take the children
into care. He confirmed that he and his wife are now reconciled and
that he has been working again from October 2011…The 2 children
concerned……[are both] at nursery school currently. [One of the
children] has a lot of health problems and had spent a lot of his early
life in hospital. He is however much better now……..
……on carefully considering the legislation the Tribunal agreed with
the Decision Maker that [the appellant] ….on his own evidence ….was
not a worker nor was he a jobseeker at the time of the claim. His
children were not in full time education at the time of claim and
indeed now are at nursey school only. The Tribunal had great
sympathy for the appellant who was completely honest and open in
giving his evidence….Unfortunately, [under] the legislation….the
Tribunal had no alternative other than to disallow the appeal.”
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