AW-v-Department for Social Development (IS) [2010] NICom 109
Decision No:  C5/09-10(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCOME SUPPORT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 1 July 2009

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal to a Commissioner with the leave of the legally qualified member granted on 18 August 2009, from a decision of a tribunal to the effect that the claimant is not entitled to income support (IS) as, at the time she claimed benefit, she was a person subject to immigration control and is excluded from benefit entitlement by section 115(9) of the Immigration and Asylum Act 1999.

2.	Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the appeal can properly be determined without a hearing.

3.	The claimant is an adult woman who arrived in Northern Ireland in January 2008.  Previously she had been living in the Republic of Ireland from 1 August 2004 with her husband.  She is married to a United Kingdom national with dual Irish/British nationality and has two children.  The younger child was born in Northern Ireland on 2 December 2007 while the older child is attending primary school in Northern Ireland.  The claimant’s husband worked in Northern Ireland between February 2008 until July 2008 for a travel firm and, it appears, also worked for another firm in Northern Ireland in 2003.  When the claimant made a claim for IS on 26 September 2008, the claimant’s husband was on remand in Maghaberry Prison.  The claimant’s passport was stamped in Belfast by an immigration officer on 5 May 2008 giving the claimant leave to enter the United Kingdom for six months with no recourse to public funds and no work to be undertaken.  The claimant’s passport was also stamped by Garda Immigration Office in Louth, the Republic of Ireland, on 28 September 2008, allowing her to remain in the Republic of Ireland until 28 November 2011.  In her application to the Social Security Agency (on form HRT2) the claimant stated that she intended to stay permanently in the United Kingdom and that she had worked for three separate employers, namely, Sara, Monsoon and Eastern Travel as a sales assistant in Northern Ireland.  However, she had been in dispute with her latest employer, Eastern Travel, in relation to pay and she had not been paid since starting work and apparently was suspended without pay during the period relevant to these proceedings.

4.	On 17 October 2008 the decision-maker decided that the claimant “can be treated as habitually resident in the UK” and also the decision-maker determined that the claimant “has no right to reside in the UK and therefore, has no recourse to public funds”.  The claimant was notified of this decision on 31 October 2008.  An appeal was received from the Law Centre (NI) on behalf of the claimant on 28 November 2008.  The decision-maker’s decision was reconsidered on 4 December 2008.  However this resulted in the original decision being unchanged.  She was notified of this on 4 December 2008.

5.	In the submission to the appeal hearing the Department made a different submission.  It stated that:

(a)	the claimant is an Australian national who at her date of claim had a right to reside in the United Kingdom as evidenced by the immigration officer’s stamp on her passport dated 5 May 2008 which granted her leave to enter the United Kingdom for six months;

(b)	although the claimant had a right to reside in the United Kingdom, that leave was subject to the condition that she does not have recourse to public funds and therefore she is “a person subject to immigration control” under section 115(9) of the Immigration and Asylum Act 1999 and therefore had no entitlement to IS in accordance with sections 115(1) and (2) of that Act; and

(c)	as the claimant was a person subject to immigration control, whether she was habitually resident or not is not relevant.

	Accordingly the Department invited the tribunal to substitute the decision-maker’s decision with a finding that the claimant is not entitled to IS as she is subject to immigration control under section 115 of the Immigration and Asylum Act 1999.

6.	After an oral hearing, at which the claimant was represented by Mr Lee Hatton of the Law Centre (NI), the tribunal accepted the Department’s submissions that the decision-maker was in error but, in addition, also accepted that the Department’s modified submissions were correct.  The tribunal, which consisted of a legally qualified member sitting alone, gave the following reasons for its decision:

“Taking into account the evidence that the appellant’s husband entered the United Kingdom as a British citizen, I concluded that the visa issued to (the claimant) on the 5th of May 2008 was a valid Visa and was not issued on error.  The appellant was therefore a non EEA citizen who was subject to Immigration Control with limited right to remain in the United Kingdom.  When she applied for Income Support, she was excluded from entitlement by Section 115(9) of the Immigration and Asylum Act 1999.  The decision in CO Nigeria [2007] UK AIT 00070 does not assist the appellant as the appellant’s husband did not enter Northern Ireland as a worker coming to a host state on May 5th 2008 when the visa was granted.  As noted above, he entered as a citizen of the United Kingdom.

It is further argued that the appellant had rights of residence as the family member of a worker.  I reject this argument as the appellant’s husband was in legal custody at the date of the application for benefit and for this reason he was no longer a worker.  He was on remand and was subsequently imprisoned for a term.  There has been no appeal against conviction.  In OA a Prisoner [2006] UKAIT it was concluded that a person in custody was not a worker and therefore not a qualified person for the purposes of Regulation 6 of the Immigration (European Economic Area) Regulations 2006.

A similar conclusion was reached on the case of HR (Portugal) v Secretary of State for the Home Office [2009] EWCA Civ 371 where the Court concluded that a period in prison could not count towards a period of ten year residence.

It is clear that even if (the claimant’s husband) could in some circumstances, due to his dual nationality, establish that he was a worker for the purposes of the free movement of workers in EU law, he could not exercise any workers rights at all when in prison, even if he undertook prison work.

There are circumstances in which those who are no longer workers can establish residence rights under the Immigration (EEA) Regulations 2006.  However, detention in legal custody is not included in those rules and I am satisfied that that is not an accidental omission.  The rules are drafted to support the free movement of workers under Article 18 of the Treaty of European Union as consolidated by the Treaty of Nice.  There are therefore a number of provisions to remove possible disincentives against moving to a host country to work which might afflict any family such as illness, divorce and engagement of children in the education system.  However, it is difficult to envisage how it could be argued that the legislation should provide for the families of those who commit crimes and are imprisoned in this context.

I therefore do not accept that there is any lacuna in the 2006 regulations relevant to the claim by (the claimant).

I also reject the argument that there is a lack of proportionality in the exclusion of (the claimant’s) family under the 2006 rules.  At the date of claim, she and her children had a right to live on [sic] the Republic of Ireland and she has a right to work there.  She was also able to keep contact with her husband as she was free to visit Northern Ireland.  I note the comments of Commissioner Jacobs at paragraph 23 of CIS/3960/2007 which I approve.  I also approve the decision of the Commissioner cited at paragraph 22 of Kaczmarek v Secretary of State for Work and Pensions that the direct application of Article 18(1) of the treaty cannot be relied upon to remove limitations necessarily implicit in a Directive.

I also reject the arguments that (the claimant) is denied the right to family life – Article 8 Human Rights Act.  She and her child can continue to visit (her husband).  Many families live considerable distances from prisons in the United Kingdom and no authorities were led before me to support the argument that there is a resultant breach of Article 8 rights in such circumstances.”

7.	I have had the benefit of extensive written submissions produced by both Mr Lee Hatton and Mr Joe O’Connor of Decision Making Services on behalf of the Department.  Originally there were many points requiring resolution but clarification of the law by other courts and the industry of the respective advocates have, very properly, isolated the real issues in the case and, accordingly, I can deal with these matters in relatively short form.  In particular, Mr Hatton specifically withdrew all grounds of appeal save a single ground that I will now deal with.

8.	In the circumstances I consider it appropriate to set out Mr Hatton’s main written submission in full.  He submitted as follows:

“1.0  	It is our submission that the tribunal which determined (the claimant’s) appeal has erred in law by finding that she was a “person subject to immigration control”.  The tribunal found that (the claimant) was a non-EEA national who had limited leave to remain.  As a result, the decision of the tribunal was that (the claimant) was not entitled to Income Support because of section 115(9) of the Immigration and Asylum Act 1999.

1.1	It is our view that (the claimant) cannot be a “person subject to immigration control” as she has an enforceable Community law right to reside on the basis of the ECJ decisions in Case C-413/99 Baumbast, Case C310/08 Ibrahim and Case C480/08 Teixeira.  As a result, we respectfully submit that the tribunal erred in law by finding that (the claimant) was subject to immigration control.

1.2	It would appear to be agreed between the parties that although (the claimant) is a non-EEA national, if she can establish that she has a right to reside under EU law, she cannot be a “person subject to immigration control”.  This is on the basis of section 7 of Immigration Act 1988:

	“7.-(1) A person shall not under the principal Act require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable Community right or of any provision made under section 2(2) of the M1 European Communities Act 1972.”

1.3	We would also submit that if (the claimant) can establish she has a right to reside, then she will be habitually resident in accordance with Regulation 21AA of the Income Support (General) Regulations 1987.

1.4	In our view, (the claimant) has a right of residence on the basis of the ECJ’s decisions in Case C-413/99 Baumbast, Case C310/08 Ibrahim and Case C480/08 Teixeira.  In the Baumbast decision, the Court was asked to address two questions on the interpretation of Article 12 of EC Regulation 1612/68.  Article 12 states:

		“Article 12

The children of a national of a member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory.

Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.”

In light of this provision, and the rights which come from Article 10, the Court found that the children of a migrant worker have a right to reside in the host member state in order to pursue their education;

“63.	In the light of the foregoing, the answer to the first question must be that children of a citizen of the European Union who have installed themselves in a Member State during the exercise of their parent of rights of residence as a migrant worker in that Member State are entitled to reside there in order to attend general education as courses there, pursuant to Article 12 of Regulation No 1612/68.  The fact that the parents of the children concerned have meanwhile divorced, the fact that only one parent is a citizen of the Union and that parent has ceased to be a migrant worker in the host Member State and the fact that the children are not themselves citizens of the Union are irrelevant in this regard.” (my underlining)

1.5	The second question posed to the Court was in regards to what right of residence the parent of such a child would have.  The Court found that the parent with primary care of the child would also have a right of residence:

“75.	In the light of the foregoing, the answer to the second question must be that where children have the right to reside in a host Member State in order to attend general educational courses pursuant to Article 12 of Regulation No 1612/68, that provision must be interpreted as entitling the parent who is the primary carer of those children, irrespective of his nationality, to reside with them in order to facilitate the exercise of that right notwithstanding the fact that the parents have meanwhile divorced or that the parent who has the status of citizen of the European Union has ceased to be a migrant worker in the host Member State.”

1.6	In the two more recent decisions, C310/08 Ibrahim and C480/08 Teixeira the ECJ had considered whether the principle established in Baumbast was still applicable after the introduction of Directive 2004/38 which had repealed Article 10 of Regulation 1612/68.  The ECJ held that Article 12 of 1612/68 operated independently from Article 10 of 1612/68 and from the other provisions of EU law which govern rights of residence (paras 53-54 of Teixeira):

“53.	Article 12 of Regulation No 1612/68 must therefore be applied independently of the provisions of European Union law which expressly govern the conditions of exercise of the right to reside in another Member State.

54.	That independence of Article 12 of Regulation No 1612/68 from Article 10 of that regulation, which has since been repealed, formed the basis of the judgments of the Court referred to in paragraphs 37 to 39 above, and was not called into question by the entry into force of Directive 2004/38.”

1.7	The Court held that Article 12 of 1612/68 grants a right of residence to the child pursuing its education and that the right of residence is not dependent on the parents retaining worker status (paras 38-40 of Ibrahim and 49-52 of Teixeira).  It further held that the adoption of Direction 2004/38 into EU law did not alter or limit the operation of Article 12 (paras 44-45 of Ibrahim):

“44.	The London Borough of Harrow, the United Kingdom and Danish Governments and Ireland submit that Directive 2004/38, since its entry into force, constitutes the sole basis for the conditions governing the exercise of the right of residence in the Member Sates of citizens of the Union and members of their families, and consequently that no right of residence may now be derived from Article 12 of Regulation No 1612/68.

45.	On this point, there is nothing to suggest that, when adopting Directive 2004/38, the European Union legislature intended to alter the scope of Article 12 of that regulation, as interpreted by the Court, so as to limit its normative content from then on to a mere right of access to education.”

1.8	As a result of the above considerations by the Court, it found at para 50 of Ibrahim:

“50	It follows that the children of a national of a Member State who works or has worked in the host Member State and the parent who is their primary carer can claim a right of residence in the latter State on the sole basis of Article 12 of Regulation No 1612/68, without being required to satisfy the conditions laid down in Directive 2004/38.”

1.9	Further, in both Ibrahim and Teixeira, the ECJ has found that the right of residence of both the child and the parent is not dependent on the parent being self sufficient.  At paragraph 67 of Teixeira, the Court states:

“67	In any case, since the Court pointed out, in paragraph 74 of Baumbast and R, that in view of the context and the objectives of Regulation No 1612/68, in particular Article 12, that provision cannot be interpreted restrictively and must not be rendered ineffective, it cannot be argued on the basis of that judgment that the granting of the right of residence at issue is conditional on self-sufficiency, as the Court did not base its reasoning even implicitly on such a condition.”

1.10	And the Court further concludes in Teixeira:

“70	The answer to Question 2(b) is therefore that the right of residence in the host Member State of the parent who is the primary carer of a child exercising the right to pursue his or her education in accordance with Article 12 of Regulation No 1612/68 is not conditional on that parent having sufficient resources not to become a burden on the social assistance system of that Member State during the period of residence and having comprehensive sickness insurance cover there.”

	The conclusion in Ibrahim is on similar terms:

“59	In the light of the above considerations, the answer to the first two questions is that, in circumstances such as those of the main proceedings, the children of a national of a Member State who works or has worked in the host Member State and the parent who is their primary carer can claim a right of residence in the latter State on the sole basis of Article 12 of Regulation No 1612/68, without such a right being conditional on their having sufficient resources and comprehensive sickness insurance cover in that State.”

1.11	In light of the above decisions, it is our submission that were an EEA national works in a Member State, attains worker status and one of their children starts education in that Member State, then both the child and parent with primary responsibility will have a right to reside in that Member State.  This applies regardless of whether the parent is no longer a worker of if the parent is not self-sufficient.  As long as the parent had obtained worker status at some time in the Member State, then the child and parent will have a right to reside if the child is attending education in that State.

1.12	As far as relevant to this case, the facts are as follows.  (The claimant’s husband) is an Irish national and is married to (the claimant), who is an Australian national.  (The claimant’s husband) started employment with Eastern Travel in February 2008 and worked there until July 2008.  (The claimant’s husband’s) daughter, (…), was attending school in Northern Ireland at this time.  She attended Loughview Integrated Primary School.  As a result (she) had acquired a right to pursue her education under Article 12 of Regulation 1612/68.  As found by the ECJ, a child in (…’s) position will have a right to reside and the parent with primary care of (her) would also have a right to reside.  When (the claimant’s husband) was arrested and held on remand, (the claimant) would have become the parent with primary care and therefore would have had a right to reside.  As this is an enforceable Community law right, she could not be a person subject to immigration control and would have had the necessary right of residence to satisfy the habitual residence test in Regulation 21AA of the 1987 Regulations.  The tribunal therefore erred in law by refusing her appeal.”

9.	I also consider that it is appropriate to set out Mr O’Connor’s main written submission, which for reasons which will become obvious, was a volte-face compared to the Department’s original case.  On behalf of the Department he submitted as follows:

“Since the Department made its original submission the CJEU issued judgments in the cases of Ibrahim and Teixeira on 23/02/10.  Both cases concerned the right to reside of the parents of children of Member State migrant workers who were in education in the UK.  The CJEU decided that, in similar circumstances to those in Ibrahim and Teixeira, such children had a right to reside under Article 12 of 1612/68 in order for them to complete their education.  Article 12 provides:

Article 12

The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory.

Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.

The CJEU also decided that the parent who was the primary carer of the children of migrant workers who benefited from Article 12 must also have a right to reside in order to give effect to that right.  The Court stated in Ibrahim:

“In circumstances such as those of the main proceedings, the children of a national of a Member State who works or has worked in the host Member State and the parent who is their primary carer can claim a right of residence in the latter State on the sole basis of Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992, without such a right being conditional on their having sufficient resources and comprehensive sickness insurance cover in that State.”

In relation to this appeal the Law Centre have submitted that (the claimant’s husband) worked in the United Kingdom from February 2008 to July 2008.  (The claimant’s husband’s) daughter (… aged 6) was installed in the UK at the time (the claimant’s husband) worked for Eastern Travel and she would also have been in education at this time.  Therefore as the child of a migrant worker ((the claimant’s husband) has an Irish passport) (…) would have acquired a right to education under Article 12 of 1612/68 and consequently a right to reside in the United Kingdom.  As stated by the Court of Justice in the Ibrahim/Texeira judgments whilst the child is in education their primary carer would also have a right to reside on the basis of Article 12 of 1612/68.

Further to this it is accepted that (the claimant) was the primary carer once (the claimant’s husband) went into prison and therefore that she would have had a consequent right to reside in the United Kingdom.  Following the CJEU judgments in Ibrahim/Texeira this right to reside is not conditional on (the claimant) being self sufficient or having comprehensive sickness insurance cover in the host Member State.

In relation to being required to satisfy the conditions laid out in Directive 2004/38 the CJEU in Texeira stated:

1.  A national of a Member State who was employed in another Member State in which his or her child is in education can, in circumstances such as those of the main proceedings, claim, in the capacity of primary carer for that child, a right of residence in the host Member State on the sole basis of Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992, without being required to satisfy the conditions laid down in Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of Member States amending Regulation No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC.

Therefore the CJEU have made clear that in circumstances such as those of Texeira it is not necessary to satisfy the conditions laid down in Directive 2004/38.

In conclusion then it is accepted that once (the claimant’s husband) went into prison (the claimant) became the primary [sic] of the children of a national of a Member State in education and therefore had a right to reside in the United Kingdom.  Consequently (the claimant) is not a “person subject to immigration control” under section 115(9) of the Immigration and Asylum Act 1999.”

10.	I have had the benefit of the clarification of the law set out in the European Court of Justice decisions of Ibrahim (Case C-310/08 – dated 23 February 2010)and Teixeira (Case C-480/08 also – dated 23 February 2010).  Neither the original departmental decision-maker nor the Tribunal had such benefit as these cases had not been decided at the relevant time.  I can readily come to a conclusion in the present case that is clearly in accordance with the legal principles established by the European Court of Justice.  In earlier submissions, both to the tribunal and to the Commissioner, the Department submitted that the claimant was ‘a person subject to immigration control’.  However following the European Court of justice decisions in Ibrahim and Teixeira the Department agrees with the Law Centre that the claimant had a right to reside at the date of her claim for IS and, in particular, that she was not ‘a person subject to immigration control’.  In the circumstances I have no difficulty agreeing with these submissions and I conclude that, once the claimant’s husband went into prison, the claimant became the primary carer of a national of a member state in education and, therefore, had a right to reside in the United Kingdom.

11.	In light of these principles I find that the claimant had an enforceable community law right of residence when she made her claim for benefit and, therefore, at the relevant time was neither a “personal subject to immigration control” nor a “person from abroad”.

12.	Not unreasonably I have been urged by Mr Hatton, to exercise the power set out in Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to set aside the decision and then give the decision the tribunal should have given.  This would have the considerable advantage of resolving the matter expediently as there now appears to be no dispute over the fact that the claimant has a right of residence and is not a “person subject to immigration control” or “person from abroad”.  However, I can only do this if no further findings of fact are required or if I can make the relevant findings myself.  The difficulty, pointed out by Mr O’Connor on behalf of the Department, is that the case was decided on the right of residence point and therefore other issues in relation to entitlement have never been properly investigated.  Accordingly, in my view, it is inappropriate for me to exercise any other powers than those set out in Article 15(8)(b), namely, to refer the case back to a tribunal with directions for its determination.

13.	Therefore I allow this appeal, set aside the decision of the tribunal and refer the matter back to a fresh tribunal.  I have no alternative so to do as I do not have the power to refer the matter back to the Department for it to adjudicate upon the other issues relevant to an award of IS.  However, my direction in the subsequent paragraph should, as far as possible, ensure that this rehearing only takes place if there is a requirement for it.

14.	I direct the Department to produce for the new tribunal a further submission setting out whether in its view the other conditions relevant to receipt of IS have been satisfied by the appellant for the relevant period.  If the Department’s view is that these conditions have been satisfied, it has the legislative power to revise its earlier decision to that of one in favour of the claimant.  If the Department’s view is that the other conditions are not satisfied, the claimant will have the opportunity to challenge this view at the rehearing of the appeal.

(signed):  J A H Martin QC

Chief Commissioner

10 November 2010