KH v Bury Metropolitan Borough Council and Secretary of State for Work and Pensions (HB)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wright |
| Neutral Citation | [2020] UKUT 50 (AAC) |
| Subject Matter | European Union law,Residence,presence conditions,European Union law - workers,presence conditions - right to reside,Wright,S |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Date | 14 February 2020 |
KH –v- Bury MBC and SSWP [2020] UKUT 50 (AAC)
CH/2389/2016
1
IN THE UPPER TRIBUNAL Appeal No: CH/2389/2016
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 Bury on 4
May 2016 under reference SC268/14/00378 involved an error
on a material point of law and is therefore set aside.
The Upper Tribunal remakes the decision of the First-tier
Tribunal. The remade decision is to allow the appeal, set
aside Bury Metropolitan Borough Council’s decisions of 3
October 2014 and 22 October 2014, and replace them with a
decision that the appellant was entitled to housing benefit
from and including 10 August 2014.
This decision is made under section 12(1), 12 (2)(a) and
12(2)(b)(ii) of the Tribunals Courts and Enforcement Act
2007
Representation: The appellant was represented by Martin Williams
of the Child Poverty Action Group at the final
hearing.
Julie Smyth of counsel appeared at the final
hearing for the Secretary of State for Work
instructed by the Government Legal Service.
The local authority did not appear at any hearing.
KH –v- Bury MBC and SSWP [2020] UKUT 50 (AAC)
CH/2389/2016
2
REASONS FOR DECISION
Introduction
1. This is a right to reside appeal that has had a very long history in which
many arguments have been made. However, for the purposes of this
decision I need only concentrate on two arguments. The other
arguments which the appellant has made in the past, including at an
earlier hearing before me, have now been abandoned.
2. The first substantive argument I can clear out of the way very quickly,
and I should do so immediately to concentrate on the other argument.
By the first argument the appellant seeks to rely on the same
‘contingent’ right to reside argument I rejected as arising in AM v
Secretary of State for Work and Pensions and another (JSA, IS and
HB) [2019] UKUT 361 (AAC). As in AM, and for the same reasons I
gave there, I do not consider the appellant can have a ‘contingent’ right
to reside based on her having been, at the material time, the primary
carer of her under school age child, even if that child may have had a
right to reside as the ‘family member’ of the child’s father on the basis
that the father had a right to reside in the United Kingdom as a
‘worker’, but where the appellant was not a ‘family member’ of the
father of her child.
3. The second substantive argument concerns the legality of the “genuine
chance of being engaged [in employment]” test under and in respect of
what was, at the time relevant to this appeal, regulation 6(2)(b)(ii) and
(7) of the Immigration (European Economic Area) Regulations 2006
(the “2006 EEA Regs”). At that time that regulation 6 provided, so far
as is material, as follows (I have highlighted in bold the most relevant
parts of the regulation).
“Qualified person”
6.—(1) In these Regulations, “qualified person” means a person who is
an EEA national and in the United Kingdom as—
(a) a jobseeker;
(b) a worker;
KH –v- Bury MBC and SSWP [2020] UKUT 50 (AAC)
CH/2389/2016
3
(c) a self-employed person;
(d) a self-sufficient person; or
(e) a student.
(2) Subject to regulations 7A( 4) and 7B(4), a person who is no
longer working shall not cease to be treated as a worker for
the purpose of paragraph (1)(b) if—
(a) he is temporarily unable to work as the result of an illness or
accident;
(b) he is in duly recorded involuntary unemployment after
having been employed in the United Kingdom for at least
one year, provided that he—
(i) has registered as a jobseeker with the relevant
employment office; and
(ii) satisfies conditions A and B;
(ba) he is in duly recorded involuntary unemployment after having
been employed in the United Kingdom for less than one year, provided
that he—
(i) has registered as a jobseeker with the relevant employment office;
and
(ii) satisfies conditions A and B;
(c) he is involuntarily unemployed and has embarked on vocational
training; or
(d) he has voluntarily ceased working and embarked on vocational
training that is related to his previous employment.
(2A) A person to whom paragraph (2)(ba) applies may only retain
worker status for a maximum of six months…..
(5) Condition A is that the person—
(a) entered the United Kingdom in order to seek employment; or
(b) is present in the United Kingdom seeking employment,
immediately after enjoying a right to reside pursuant to paragraph
(1)(b) to (e) (disregarding any period during which worker status was
retained pursuant to paragraph (2)(b) or (ba)).
(6) Condition B is that the person can provide evidence that
he is seeking employment and has a genuine chance of being
engaged.
(7) A person may not retain the status of a worker pursuant
to paragraph (2)(b), or jobseeker pursuant to paragraph
(1)(a), for longer than the relevant period unless he can
provide compelling evidence that he is continuing to seek
employment and has a genuine chance of being engaged.
(8) In paragraph (7), “the relevant period” means—
(a) in the case of a person retaining worker status pursuant to
paragraph (2)(b), a continuous period of six months….”
The arguments of the parties in summary
4. The argument made by CPAG on behalf of the appellant is that which
appears in regulation 6(2)(b)(ii) above (i.e. the satisfaction of
‘conditions A and B’) and in regulation 6(7) is contrary to EU law and
thus unlawful. All that is required for a person who had been employed
to retain his or her ‘worker’ status is being in duly recorded involuntary
employment and registration as a jobseeker at the relevant
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DD v Her Majesty’s Revenue and Customs and Secretary of State for Work and Pensions (CB)
...were inserted before “evidence”.” 2. The appeal in this case was heard at the same time as the appeal in KH –v- Bury MBC and SSWP [2020] UKUT 0050 (AAC), though the issues on the two appeals differed in the end. The decision in KH concerns a person who had worked for over a year and retaine......