SS v Secretary of State for Work and Pensions (ESA) [2011] UKUT 8 (AAC)

UKUT-AAC
SS v Secretary of State for Work and Pensions (ESA)
[2011] UKUT 8 (AAC) · 2011-01-06
[1]The claimant is French and seriously mentally ill. She has been diagnosed as having ‘Schizoaffective Disorder with partial response to medication and with persistent delusional and hallucinatory symptoms.’ A Consultant Psychiatrist wrote:
‘This lady continues to require a very high level of support, if she is to function even in very basic day to day activities. She requires constant prompting and care from her sister, who is the only one who is working and able to support financially. [The claimant] is not well enough to consider any employment.’
[2]The claimant came to the United Kingdom from Costa Rica on 14 March 2009 to live with her sister, who is also French. On 15 September 2009, she claimed an employment and support allowance, but this was refused on 27 November 2009. The claimant exercised her right of appeal to the First-tier Tribunal. That tribunal dismissed her appeal, but gave her permission to appeal to the Upper Tribunal.[3]The claim for an allowance was refused on the ground that the claimant was a person from abroad whose applicable amount was accordingly nil. Put more simply, the claimant was not entitled to an allowance because she did not have a right to reside in the United Kingdom. The First-tier Tribunal confirmed that decision. It applied my decision in CIS/0612/2008 and decided that the claimant did not have a right to reside because she needed, and did not have, the necessary immigration document.[4]Whether the claimant has a right to reside depends on whether my reasoning in CIS/0612/2008 was correct. If it was, the claimant does not have a right to reside in EU law and will only have a right to reside under domestic immigration law if the Secretary of State for the Home Department so decides. B. EU law[5]Directive 2004/38/EC applies to three categories of person:(i) Union citizens;(ii) family members of Union citizens; and(iii) beneficiaries. (i) and (ii) are defined in Article 2. (iii) are defined in Article 3. The three categories are not mutually exclusive. A Union citizen may also be a beneficiary. The claimant in this case is both.[6]Article 3 provides:
‘ Beneficiaries 1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them. 2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons: (a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right or residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen; (b) the partner with whom the Union citizen has a durable relationship, duly attested. The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.’
[7]The background to this provision is provided by Recital (6):
‘ In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.’
[8]My analysis is this. The purpose of the protection afforded to beneficiaries is to support and maintain family cohesion and, thereby, to remove a potential impediment to freedom of movement. They are not given any automatic right to reside by the Directive. Any right to reside must be conferred by the host State. It does so under its national legislation, but it must facilitate residence and explain why it has refused to give such a right. There may be no grounds on which a beneficiary may be removed from the host State, but that is not the same as having a right to reside. Beneficiaries are not unique in being in that position. C. Domestic law[9]Article 3(2) has been implemented by the Immigration (European Economic Area) Regulations 2006. To some extent, the Regulations employ different terminology from the Directive. However, the relationship between particular terms in each is clear from their content. The Regulations give a right to reside to ‘qualified persons’ and to those who have a right of permanent residence: regulations 14(1) and 15. Their family members also have the right to reside: regulation 14(2).[10]The Regulations create a category of ‘extended family member’, which is defined by regulation 8:
‘ “Extended family member” 8.-(1) In these Regulations “extended family member” means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5). … (3) A person satisfies the condition in this paragraph if the person is a relative of an EEA national or his spouse or his civil partner and, on serious health grounds, strictly requires the personal care of the EEA national his spouse or his civil partner. …’
[11]Extended family members are treated as a family member on specified conditions under regulation 7(3):
‘Subject to paragraph (4), a person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as the family member of the relevant EEA national for as long as he continues to satisfy the conditions in regulation 8(2), (3), (4) or (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked.’
[12]My analysis is this. Extended family members under regulation 8(3) are clearly the same as beneficiaries under the final part of Article 3(2)(a). They are given the same rights as family members, but only on the conditions set out in regulation 7(3). That requires the beneficiary to have a relevant document that is valid and in force. The document will only be issued if it ‘appropriate’ to do so. That applies whether the document is a family permit (regulation 12(2)(c)), a registration certificate (regulation 16(5)(b)) or a registration card (regulation 17(4)(b)).[13]There is nothing in those provisions that is inconsistent with the Directive. The issue of the document is a matter for the host State, acting through the entry clearance officer (regulation 12) or the Secretary of State (regulations 16 and 17). The issue is conditional on it being ‘appropriate’ to issue the document, which allows for an extensive application of the person’s circumstances. All of those requirements are envisaged by the express terms of the Directive.[14]Whether the documents create or merely recognise the person’s right seems to me beside the point as a practical matter. The person only has a right to reside if that is conferred by the immigration authorities. That right is only conferred after a consideration of the person’s circumstances. If it is conferred, the appropriate document will be issued. In other words, the right to reside and the document go together in practice.[15]The right to reside must be conferred and that can only be done by the appropriate authorities. The First-tier Tribunal does not have that power when exercising its social security jurisdiction. Neither does the Upper Tribunal. D. Conclusion[16]It follows that the tribunal came to the right decision in law on the undisputed facts of the case.[17]The proper course for the claimant, if she wishes to obtain a right to reside and potentially an employment and support allowance, is to apply to the Secretary of State for the appropriate document. It would not be helpful for me to speculate on the outcome of an application that is outside my jurisdiction. Signed on original on 6 January 2011 Edward Jacobs Upper Tribunal Judge

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