ODS v Secretary of State for Work and Pensions (UC)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wright |
| Neutral Citation | [2019] UKUT 192 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | European Union law,Residence,presence conditions,European Union law - other,presence conditions - right to reside,Wright,S |
| Date | 14 June 2019 |
| Published date | 13 August 2019 |
ODS v SSWP (UC) [2019] UKUT 192 (AAC)
CUC/734/2018
1
IN THE UPPER TRIBUNAL Appeal No: CUC/734/2018
ADMINISTRATIVE APPEALS CHAMBER
Before: Upper Tribunal Judge Wright
DECISION
The Upper Tribunal allows the appeal of the appellant.
The decision of the First-tier Tribunal sitting at Fox Court on
14 November 2017 under reference SC242/17/03169 involved
an error on a material point of law and is set aside.
The Upper Tribunal is not in a position to re-decide the
appeal. It therefore refers the appeal to be decided entirely
afresh by a completely differently constituted First-tier
Tribunal and in accordance with the Directions set out below.
This decision is made under section 12(1), 12(2)(a) and
12(2)(b)(i) of the Tribunals, Courts and Enforcement Act
2007
DIRECTIONS
Subject to any later Directions by a District Tribunal Judge of
the First-tier Tribunal, the Upper Tribunal directs as follows:
(1) The new hearing will be at an oral hearing.
(2) The appellant is reminded that the issue for the new First-tier
Tribunal will be whether she had a qualifying right to reside as at
19 December 2016.
(3) If the appellant has any further evidence that she wishes to put
before the tribunal that is relevant to whether she had a
qualifying right to reside in the United Kingdom on 19 December
2016, this should be sent to the First-tier Tribunal’s office in
Sutton within one month of the date this decision is issued.
(4) The First-tier Tribunal is bound by the law as set out below.
ODS v SSWP (UC) [2019] UKUT 192 (AAC)
CUC/734/2018
2
REASONS FOR DECISION
1. This appeal concerns the right to reside element of the habitual
residence test found in regulation 9 of the Universal Credit Regulations
2013. That regulation provided at the material time as follows:
“9.—(1) For the purposes of determining whether a person meets the
basic condition to be in Great Britain, except where a person falls
within paragraph (4), a person is to be treated as not being in Great
Britain if the person is not habitually resident in the United Kingdom,
the Channel Islands, the Isle of Man or the Republic of Ireland.
(2) A person must not be treated as habitually resident in the United
Kingdom, the Channel Islands, the Isle of Man or the Republic of
Ireland unless the person has a right to reside in one of those places.
(3) For the purposes of paragraph (2), a right to reside does not
include a right which exists by virtue of, or in accordance with—
(a)regulation 13 of the EEA Regulations or Article 6 of Council
Directive No.2004/38/EC(1); or
(b)regulation 15A(1) of the EEA Regulations, but only in cases where
the right exists under that regulation because the claimant satisfies the
criteria in regulation 15A(4A) of those Regulations or article 20 of the
Treaty on the Functioning of the European Union (in a case where the
right to reside arises because a British citizen would otherwise be
deprived of the genuine enjoyment of their rights as a European
citizen).
(4) A person falls within this paragraph if the person is—
(a)a qualified person for the purposes of regulation 6 of the EEA
Regulations as a worker or a self-employed person;
(b)a family member of a person referred to in sub-paragraph (a)
within the meaning of regulation 7(1)(a), (b) or (c) of the EEA
Regulations;
(c)a person who has a right to reside permanently in the United
Kingdom by virtue of regulation 15(1)(c), (d) or (e) of the EEA
Regulations;
(d)a refugee within the definition in Article 1 of the Convention
relating to the Status of Refugees done at Geneva on 28th July 1951, as
extended by Article 1(2) of the Protocol relating to the Status of
Refugees done at New York on 31st January 1967;
(e)a person who has exceptional leave to enter or remain in the United
Kingdom granted outside the rules made under section 3(2) of the
Immigration Act 1971;
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Secretary of State for Work and Pensions v CN (JSA)
...such a letter had been sent to the appellant.” 9. I dealt in paragraph [9] of ODS v Secretary of State for Work and Pensions (UC) [2019] UKUT 192 (AAC) with the difficulties that arise from First-tier Tribunal judges commenting in the decision refusing permission to appeal about why the dec......