HK v Secretary of State for Work and Pensions (PC)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Ward |
| Neutral Citation | [2020] UKUT 73 (AAC),[2020] UKUT 73 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | European Union law,European Union law - Agreement on European Economic Area,Ward,C |
| Date | 11 March 2020 |
| Published date | 23 April 2020 |
HK v SSWP (PC) [2020] UKUT 73 (AAC)
Case No: CSPC/330/2019
1
THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
DECISION OF THE UPPER TRIBUNAL JUDGE
Before: Upper Tribunal Judge Ward
Attendances:
For the Appellant: Mr Martyn West, Appeals Team, Money Matters Advice Service,
South Lanarkshire Council
For the Respondent: Mr Chris Pirie, Advocate, instructed by Office of the Solicitor to
the Advocate General
DECISION
The appeal is allowed.
The decision of the tribunal given at Hamilton on 2 May 2019 is set aside.
The Judge of the Upper Tribunal remakes the decision that the First Tier Tribunal
ought to have given. It is as follows:
The appeal against the DWP’s decision of 30 July 2018 refusing the appellant
state pension credit on the basis that he lacked a right to reside is allowed.
The appellant had such a right and the respondent must now proceed to
examine the remaining aspects of his claim.
REASONS FOR DECISION
The issue – introduction
1. This case raises starkly whether and, if so, how reg.9(1) of the Immigration
(European Economic Area) Regulations 2016/1052 (“the 2016 Regulations”), should
be construed so as to be compatible with EU law. The particular issue is whether
reg.9(1), so construed, may require the British citizen, by reference to whom rights
are asserted, to be a “qualified person” under reg 6(1) of those regulations. It may
have implications in the contexts of immigration, social security and housing.
2. The background is that the appellant (Mr K) is an Austrian national. His wife, Mrs
K, is a British citizen. It is common ground that in 1979, before the couple had met,
Mrs K went to Germany to work and did so for many years, eventually accruing a
right of permanent residence there under Directive 2004/38/EC (“the Directive”). It
was while living and working in Germany that she met and married Mr K. In
November 2014, by which time Mrs K was not in good health, they moved to live in
Scotland, initially living on savings and the pension from Mr K’s job in Germany and
HK v SSWP (PC) [2020] UKUT 73 (AAC)
Case No: CSPC/330/2019
2
staying with a relative. In around April 2018, with the assistance of the organisation
for whom Mr West works, the couple applied for social housing, housing benefit and
council tax reduction and Mr K applied for state pension credit. Under section 1(2)
of the State Pension Credit Act 2002 and Regulations 2(1) and 2(2) of the State
Pension Credit Regulations 2002/1792, it is a condition of entitlement that a claimant
has a qualifying right to reside. On 30 July 2018 the Secretary of State decided that
Mr K did not have such a right and so his claim was refused. He appealed to the
First-tier Tribunal (“FtT”), who on 2 May 2019 dismissed his appeal. He appeals
further, with permission given by a District Tribunal Judge.
The European Law
3. Article 21(1) TFEU provides:
“Every citizen of the Union shall have the right to move and reside freely
within the territory of the Member States, subject to the limitations and
conditions laid down in the Treaties and by the measures adopted to give
them effect.”
4. Among the limitations and conditions referred to in Article 21 are those set out in
the Directive. Article 6 of the Directive provides that an EU citizen has a right of
residence for up to three months in another Member State without conditions. For
periods of residence longer than that, Article 7 confers a right on Union citizens who
are workers, self-employed, self-sufficient or students. Article 16 confers a right of
permanent residence in another Member State on Union citizens who have resided
legally there for a continuous period of five years. The right under Article 16 (in
itself) only applies in the Member State in which it has been earned. Article 17
confers a right of permanent residence after a shorter period on Union citizens who
work for a period and then retire, or who have to stop work as a result of permanent
incapacity or are frontier workers. The precise conditions affecting each of these
categories need not be set out here. Each of Articles 7, 16 and 17 additionally
confers rights on the “family members” of the person concerned. It is not in dispute
that Mr K, as Mrs K’s spouse, is a “family member”. Nor is it contended that Mr K
has a right to reside otherwise than through being the family member of Mrs K.
5. The Directive consolidated a number of pieces of earlier legislation, among which
were two items relevant to the present case. Regulation 1612/68 made provision for
the rights of workers and their families, while Directive 90/364 for the first time made
provision for the economically inactive to have rights of free movement, provided
they had sufficient resources and comprehensive sickness insurance cover.
6. The Directive applies only to the rights of Union citizens against Member States
other than their own. However, in a number of contexts, rulings of the Court of
Justice have identified other circumstances in which a right of residence may arise.
The present case concerns, in particular, the rulings in R v Immigration Tribunal and
Surinder Singh, ex p Secretary of State for the Home Department [1992] 3 CMLR
358, C-291/05 Minister voor Vremdelingenzaken en Integratie v RNG Eind [2008] 2
CMLR 1 and C-456/12 O and B v Minister voor Immigratie, Integratie en Asiel [2014]
QB 1163. Those cases provide, to an extent canvassed further below, that where a
Union citizen has exercised freedom of movement rights from his state of nationality
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