JS-v-Department for Social Development (JSA) [2015] NICom 53
Decision No:  C1/13-14(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

JOBSEEKERS ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 13 November 2012

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s appeal from the decision of an appeal tribunal sitting at Belfast on 13 November 2012.

2.	It has taken me a long time to reach a concluded view in this matter, which concerns benefit entitlement for a period which is now considerably past.  I apologise for any inconvenience which has resulted from this.

3.	For the reasons given below, I allow the appeal under Article 15(8)(a) of the Social Security (NI) Order 1998 and I set aside the decision of the appeal tribunal.  I make findings of fact and decide the appeal myself.  My decision is that the appellant is entitled to JSA, but is not entitled to a dependant’s increase of JSA in respect of his partner, from and including 18 December 2009.

	REASONS

	Background

4.	The appellant claimed income based jobseekers allowance (JSA) from the Department for Social Development (the Department) on 18 December 2009.  The claim was made in respect of himself and his partner, an Australian national.  By a decision of 26 February 2010 the Department decided that the appellant’s partner had no entitlement to benefit on the basis that she was a person subject to immigration control and that she was subject to the condition that she had no recourse to public funds.  A decision was made on 7 July 2010 awarding JSA to the appellant but refusing a dependant’s increase in respect of his partner.

5.	The appellant appealed to a tribunal consisting of a legally qualified member (LQM) sitting alone.  The tribunal disallowed the appeal, not only in relation to the dependant’s increase, but deciding that the applicant was not entitled to JSA at all.  The appellant requested a statement of reasons for the tribunal’s decision and this was issued on 22 February 2013.  The appellant applied for leave to appeal from the decision of the appeal tribunal.  Leave to appeal was granted by the LQM by a determination issued on 16 April 2013.  On 2 May 2013 the appellant lodged his appeal.

	Grounds

6.	The appellant, represented by Law Centre (NI), submits that the tribunal erred in law on the basis that:

(i)	it permitted a procedural irregularity making a material difference to the outcome of the appeal or, alternatively, has breached the rules of natural justice;

(ii)	it misinterpreted regulation 110(4) of the Jobseekers’ Allowance (General) Regulations (NI) 1996 (SR 1996, No.228) (the JSA Regulations), by failing to treat income received through payments of rent as capital;

(iii)	it made an irrational finding based on no evidence.

7.	The Department was invited to make observations on the appellant’s grounds.  Mr O’Connor of Decision Making Services (DMS) responded on behalf of the Department.  Mr O’Connor submitted that the tribunal had erred in law as alleged in the second and third grounds of appeal.  He indicated that the Department supported the application as it related to issues of income and capital.  Disagreement remained on the issue of the dependant’s increase, but he asked the Commissioner to determine the appeal, including any questions of European Union law which arose from it.

8.	The appellant responded to concur with the submission of the Department on matters of income and capital and also to ask the Commissioner to address and determine the original issue raised by the appeal, namely whether the appellant is entitled to the dependent’s element of JSA in respect of his partner.

	The tribunal’s decision

9.	Whereas the principal issue in the appeal was the matter of the right of the appellant to the dependent’s element for his partner, the LQM in fact determined the appeal on other issues.  His reason for disallowing the appeal was that the appellant possessed capital in France which exceeded the prescribed amount for entitlement to JSA, and that he had income from a rental property in excess of the couple’s applicable amount.  The tribunal decided that it was therefore unnecessary to address the issue of whether the appellant’s requirements should include an amount for his partner, having regard to European Union law.

10.	Specifically, the tribunal determined that a buy to let property owned by the appellant in Holywood, Co.Down, did not fall to be treated as a capital asset as it represented a net liability and had no value, applying regulation 111 of the JSA Regulations.  Nevertheless, the tribunal reasoned, rent received for the property fell to be treated as income under regulation 94(10) and 103(1) and Schedule 6 to the JSA Regulations.  This was calculated as a weekly amount of £115.38.  On this basis, the tribunal reasoned, taking into account the other income of the appellant and his partner, there was no entitlement to benefit at date of claim.

11.	The tribunal further took into account the fact that the appellant owned a hotel in France valued at €400,000.  This represented a figure well in excess of the prescribed amount under regulation 107 of the JSA Regulations.  As a business asset, the tribunal considered any relevant capital disregards, and in particular paragraph 11(1) of Schedule 7 to the JSA Regulations.  The tribunal decided that property can normally be disposed of in four or five months.  It held that the period during which the asset could reasonably be disposed of had expired before the claim for benefit was made in December 2009.

	Relevant law

12.	By s.115 of the Asylum and Immigration Act 1999, certain persons are excluded from entitlement to social security benefits.  Relevant provisions include the following:

115 (2) No person in Northern Ireland is entitled to state pension credit under the State Pension Credit Act (Northern Ireland) 2002, or to—

(a) income-based jobseeker’s allowance under the Jobseekers (Northern Ireland) Order 1995, or

(b) any of the benefits mentioned in paragraphs (a) to (j) of subsection (1), under the Social Security Contributions and Benefits (Northern Ireland) Act 1992 while he is a person to whom this section applies.

(3) This section applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions, as may be prescribed.

(4) …

(9) “A person subject to immigration control” means a person who is not a national of an EEA State and who—

(a) requires leave to enter or remain in the United Kingdom but does not have it;

(b) has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds;

(c) has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or

(d) has leave to enter or remain in the United Kingdom only as a result of paragraph 17 of Schedule 4.

13.	In relation to the issue of income, relevant law included regulation 94(10) and 103(1) and Schedule 6 to the JSA Regulations.  These provide:

94(10) For the purposes of this regulation the claimant’s earnings and income which does not consist of earnings shall be calculated in accordance with Chapters III (employed earners) and V (other income) respectively.

103.—(1) For the purposes of regulation 94 (calculation of income other than earnings) the income of a claimant which does not consist of earnings to be taken into account shall, subject to paragraphs (2) to (5A), be his gross income and any capital treated as income under regulation 104 (capital treated as income).

14.	Regulation 110(4) of the JSA Regulations provides as follows:

110(4) Except any income derived from capital disregarded under paragraph 1, 2, 4 to 8, 11, 17 or 41 of Schedule 7, any income derived from capital shall be treated as capital but only from and including the date it is normally due to be credited to the claimant’s account.

15.	A further relevant paragraph of Schedule 7 to the JSA Regulations is paragraph 11(1), which provides:

11.—(1) The assets of any business owned in whole or in part by the claimant and for the purposes of which he is engaged as a self-employed earner or, if he has ceased to be so engaged, for such period as may be reasonable in the circumstances to allow for disposal of any such asset.

	Hearing

16.	I held an oral hearing of the case.  The appellant was present and was represented by Mr Hatton and Mr Cox of Law Centre (NI).  The Department was represented by Mr Crilly and Mr O’Connor of DMS.  The pairs of representatives separately addressed the distinct elements of social security and European Union law which arose in the case.  I am grateful to the representatives for their comprehensive and helpful submissions.

17.	In relation to the issue of procedural fairness, the parties remained in dispute.  However, the Department accepted the appellant’s submissions that the tribunal had erred in law on his second and third grounds.  These were related to the issue of income and capital.

18.	In essence, Mr Hatton submitted on behalf of the appellant that the tribunal acted unfairly by deciding the appeal on the issue of income and capital.  These issues were not in dispute before the tribunal and had not been identified as an area of dispute in pre-hearing submissions.  The tribunal took evidence on matters of income and capital but did not indicate that it was minded to refuse the appeal on these issues.  The appellant therefore submitted that the tribunal had acted unfairly by not eliciting further submissions.

19.	Mr Hatton submitted that the tribunal correctly found that the applicant had income from a rental property but that it had wrongly applied the relevant rules in the JSA regulations to it.  The Department and the appellant were agreed that this was income derived from capital under regulation 110(4) of the JSA Regulations and therefore that the rental income should have been treated as capital.  The tribunal had erred by finding that the rental property, being secured on a mortgage, was a liability rather than a capital asset.

20.	The issue of capital related to a hotel owned by the appellant in France, and the disregard applicable to the length of any period when the appellant was seeking to dispose of this former business asset.  The tribunal had not asked the parties to provide submissions on what might be a reasonable period to allow for the sale of the property.  The tribunal had decided that a period of four or five months was appropriate.  In fact, the property remained unsold in 2014, having been repossessed by a French bank and put up for auction.  Mr Hatton submitted that he tribunal had made a finding of fact based on no evidence and without putting the issue to the parties for their submissions.  He submitted that the appellant had ceased activity in the business in August 2009.

21.	Mr Crilly submitted that the tribunal did put on record that it would be dealing with issues of income and capital.  However, he submitted that it would have been prudent for the tribunal to have heard submissions on the specific issues arising.  He accepted that the tribunal had no evidence on which to assess that the property could have been sold within four or five months.

22.	Mr Crilly further accepted that rental income from a second property should properly have been assessed as income derived from capital.  He indicated that this was the Department’s general practice in such cases.  He therefore accepted that the tribunal had erred in law.

23.	The parties submitted that the appellant was entitled to JSA, contrary to the tribunal’s interpretation of the relevant law.  The only matter in dispute between the parties was whether there was entitlement to the adult dependent’s element of JSA in respect of the appellant’s partner.

	Assessment

24.	In order to determine the appeal, I do not need to reach a conclusion on the question of whether the tribunal departed from the requirements of procedural fairness.  I will not state a concluded view on that matter.

25.	I accept the submissions of the parties to the effect that the tribunal made a perverse finding on the application of the capital disregard to the business assets owned by the appellant in France.  The issue before the tribunal under paragraph 11(1) of Schedule 7 to the JSA Regulations was what period may be reasonable, in the circumstances that the appellant had ceased self-employment, to allow for disposal of any such asset.  There was no evidence as to the state of the French commercial property market during the relevant period from which the tribunal was entitled to conclude that four or five months was a reasonable period in which to dispose of a failing hotel business.  That is enough for me to determine the appeal.

26.	I further accept the common submission that rental income from a buy to let property is income derived from capital and should accordingly be treated as capital under regulation 110(4) of the JSA Regulations.

27.	Having accepted the parties’ submissions, I conclude on the basis agreed by the parties that the tribunal has erred in law.  I must therefore set aside the tribunal’s decision.

28.	The tribunal did not deal with the particular issue which led to the appeal before it, namely whether the appellant’s partner was a person subject to immigration control within the meaning of s.115 of the Immigration and Asylum Act 1999.  The parties submit that I would be as well placed as a legal member of the tribunal sitting alone to determine this issue.  They ask me to determine the matter myself rather than remit the appeal to a tribunal for determination.

29.	I conclude that I should determine the appeal, in light of past delay in the determination of the appeal, the complexity of the issues and the quality of the submissions before me.  Accordingly, I make the findings of fact set out below and I proceed to determine the appeal.

	Findings of fact

30.	At the date of his claim for JSA, the appellant held British nationality but also had an Irish passport issued on 19 June 2002 which was valid to 19 June 2012.  He was consequently a dual national of the United Kingdom and the Republic of Ireland.  For some time he had been in a relationship with an Australian national.  There are two children of that relationship, born on 29 April 2002 and 29 August 2004 respectively.  The appellant’s partner has another child from a previous relationship, born on 12 July 1993, who has also been part of the family unit.

31.	The appellant’s partner entered the United Kingdom on 15 June 2001, being granted 6 months leave to enter subject to a prohibition on employment and recourse to public funds.  I understand that this is consistent with entry to the United Kingdom as a visitor under the domestic Immigration Rules.  Her leave to enter would have expired in December 2001.  The implication of this is that she would have needed to apply for leave to remain on an alternative basis.

32.	As observed above, the appellant was issued an Irish passport on 19 June 2002.  This had the implication that he was an Irish national working in the United Kingdom, and therefore entitled to rely on the right of free movement of workers under European Union law.  On 23 December 2002, the appellant was issued a residence permit for a national of a member state of the EEC valid until 23 December 2007.

33.	On 24 December 2002 the appellant’s partner was sent a letter by the Home Office.  This refers to her application to remain in the United Kingdom on the basis of her relationship with the appellant.  It indicates that she may now stay in the United Kingdom until 20 December 2004, may take employment or set up business, but would be expected not to have recourse to public funds, which included income based JSA.  The letter contained the sentence “Shortly before the date stated in the second paragraph above, you may apply for further leave to remain in line with your partner’s residence permit”.  The letter gives further warnings about what might happen if the appellant is no longer living with the appellant and if public funds have been received - in particular indicating that the application might be refused under the general consideration in paragraph 100 of the Immigration Rules.

34.	At this stage I will pause to point out that the Department and those representing the appellant dispute the significance of the letter.  Mr Cox for the appellant submits that the reference to the residence permit makes it clear that the United Kingdom immigration authorities accept that EU free movement rights were engaged.  Mr O’Connor for the Department submits that the letter is simply a grant of leave under domestic immigration law.  The passport of the appellant’s partner was endorsed with a stamp indicating a grant of leave to remain in the United Kingdom until 23 December 2004.  No documentary evidence that the appellant’s partner was granted leave as a matter of EU law, such as an EEA family permit or residence card, was issued.

35.	Prior to the expiry of the period of leave to remain granted by the letter to the appellant’s partner, in April 2004, the couple left the United Kingdom.  The appellant took two years leave of absence from his job as a civil servant.  The couple moved to France where the appellant had bought a hotel to run on a self-employed basis.  The appellant’s career break was later extended by a further three years, and the couple resided in France with their children for a total of almost five years.  However, the appellant’s hotel business did not flourish and the couple made plans to return to the United Kingdom.

36.	On 27 August 2008 the couple re-entered the United Kingdom.  The appellant’s partner was given leave to enter for six months with a prohibition on employment and recourse to public funds.  This appears consistent with the grant of a visitor visa under UK domestic Immigration Rules.  The couple’s eldest son was enrolled in a local school from 30 January 2009 and his younger brother from 1 September 2009.  I have no evidence that the appellant worked in the UK during this period.  I understand that the appellant returned to work in the hotel in France during the July-August holiday season of 2009.  He then returned to the UK.  On 18 December 2009 the appellant claimed JSA for himself and his partner.  At this time no formal application had been made on behalf of the appellant’s partner, such as for a residence card under EU law, or for further leave to remain under the UK Immigration Rules.

37.	I directed the appellant to provide further information regarding his exercise of freedom of movement rights in France and regarding any documents issued to himself or his partner.  He indicated that no documents were issued to him but that his partner and children had been issued with temporary residence permits.  On examination of documentary evidence provided by the appellant, the only relevant document issued by the French authorities appears to have been a “Récépissé de Demande de Carte de Séjour”, which I understand to be a receipt for an application for a residence card.  This afforded the appellant’s partner the right to remain in France for a temporary period of three months from 5 February 2007 to 4 May 2007, if accompanied by her passport.  I have not been provided with a copy of any EU residence card issued to the appellant’s partner by the French authorities.

38.	I understand that the appellant applied for an EU residence card for his partner from the UK authorities in December 2010.  The appellant’s partner was then issued with an EU residence card by the UK authorities on 23 July 2013, valid for five years.  However, this has no relevance to the period of the claim before me.

	Relevant European law

39.	Basic rights are given to citizens of the European Union by the EU Treaties.  These include the right of free movement of workers and the right of establishment as a self-employed person.  Directive 2004/38/EC makes provision for the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members.  From 30 April 2006 Member States were required to transpose the provisions of this Directive into national law.

40.	The people who could benefit from the Directive are categorised at Article 3.  This reads:

Article 3
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 of 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.

41.	Whereas the definition in Article 2.2 includes a spouse, it does not include an unmarried partner.  The Directive provides that Member States by their own national legislation shall facilitate entry by a partner with whom the Union citizen has a durable relationship.

42.	The UK transposed the Directive by way of the Immigration (European Economic Area) Regulations 2006 (SI 2006, No.1003) (the EEA regulations).  These provided a definition of family member, which was consistent with Article 2.2 of the Directive.  It also made provision for treating an “extended family member” as a family member in certain circumstances as follows:

7.—(1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person—

(a) his spouse or his civil partner;

(b) direct descendants of his, his spouse or his civil partner who are—

(i) under 21; or

(ii) dependants of his, his spouse or his civil partner;

(c) dependent direct relatives in his ascending line or that of his spouse or his civil partner;

(d) a person who is to be treated as the family member of that other person under paragraph (3).

(2) …

(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.

(4) Where the relevant EEA national is a student, the extended family member shall only be treated as the family member of that national under paragraph (3) if either the EEA family permit was issued under regulation 12(2), the registration certificate was issued under regulation 16(5) or the residence card was issued under regulation 17(4).

43.	A definition of extended family member was provided at regulation 8.  This read, so far as relevant:

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).

(2) …

(5) A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national…

44.	By the general interpretation provisions at regulation 2, “decision maker” means the Secretary of State, an immigration officer or an entry clearance officer (as the case may be).  A mechanism for application for a residence card as an extended family member was established at regulation 17.  This provided at 17(4) and 17(5) that:

(4) The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if—

(a) the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under regulation 15; and

(b) in all the circumstances it appears to the Secretary of State appropriate to issue the residence card.

(5) Where the Secretary of State receives an application under paragraph (4) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security.

45.	In passing, I will observe that the EEA Regulations also made provision for one category of case not provided for in the Directive, but where rights of entry had been established by the case of Surinder Singh (C-370/90) in the European Court of Justice (ECJ).  This appears at regulation 9, as follows:

9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national.

(2) The conditions are that—

(a) the United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and

(b) if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom.

(3) Where these Regulations apply to the family member of a United Kingdom national the United Kingdom national shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member.

	Further submissions and assessment

46.	The Department’s broad submission was that in August 2008 the applicant’s partner was given leave to enter the UK subject to a condition that she does not have recourse to public funds.  By section 115(9)(b) of the Immigration Act 1999, someone who has leave to enter or remain in the United Kingdom which is subject to the condition that he does not have recourse to public funds is excluded from benefits, including income-based JSA.

47.	The Department acknowledges that Article 3.1 of the Directive conveys certain rights to family members (as defined in Article 2 of the Directive) of EU nationals to enter and remain in the UK and that these are transposed by the Immigration (European Economic Area) Regulations 2006 (the EEA regulations).  The Department also accepts that Article 3.2 of the Directive requires the UK to facilitate entry and residence for other family members in accordance with its national legislation.  However, the Department submits that the appellant’s partner falls within the category of “other family member” – transposed as “extended family member” in the EEA regulations.  By regulation 8(5) of the EEA regulations, “extended family member” includes someone who is “the partner of an EEA national (other than a civil partner)” and who “can prove to the decision maker that he is in a durable relationship with the EEA national”.  In order to have a right to enter or reside in the UK in accordance with UK domestic legislation, the Department submits that the appellant’s partner must have been issued with an EEA family permit, registration certificate or residence card.  As she has not such a document, she has no right to reside.

48.	For the appellant, Mr Cox made three alternative submissions.  These were that the appellant’s partner had a right to reside as the family member of a qualified person, that she had a right to reside as the family member of a returning UK national, or that she had rights as a family member of a former worker who had primary care for the couple’s children who were attending school in the UK.

49.	He accepted that the appellant’s partner did not come within the definition of family member in regulation 6 of the EEA Regulations, but submitted that she came within the definition of extended family member in regulation 8(5).  However, he submitted that the appellant’s partner had been recognised effectively as a family member by the UK by her grant of leave in December 2002.

50.	He reviewed the basis of entry in 2002 under EU law prior to the coming into force of the Directive, submitting that the appellant had been granted an EU right of residence under Directive 64/221.  He then drew analogy with the case of Reed v Netherlands (C-59/85) and the UK Immigration Rules in 2000 which permitted the unmarried partner of a person present and settled in the UK to be granted leave to remain in the UK for a period of two years (rules 295D and 295E).  In order to avoid a discriminatory effect of UK nationals having greater rights than EU national workers in the UK, it would have been necessary, following Reed, to apply the equivalent right to unmarried partners of EU national workers.  These rights would derive from Articles 7 and 48 of the EEC Treaty and Article 7(2) of Regulation No.1612/68, with the right of an EU worker to be accompanied by his unmarried spouse being a “social advantage” for the purposes of Article 7(2) of 1612/68.

51.	Mr Cox submitted that the case stood or fell on the interpretation of the letter of 20 December 2002 from the Home Office to the appellant’s partner.  Against a factual background of the appellant having been granted an EU residence permit on the basis of Irish nationality, a sentence near the top of the second page of the letter read, “Shortly before the date stated in the second paragraph above, you may apply for further leave to remain in line with your partner’s residence permit”.  Had the letter to the partner been granting leave to remain on the basis of the appellant’s UK nationality, rather than his Irish nationality, there would not have been a reference to a residence permit.

52.	Mr Cox submitted that the letter of 20 December 2002 proved that the appellant’s partner was a family member of the appellant and that, as the UK authorities had already exercised discretion in the appellant’s partner’s favour, she effectively met the requirements of regulation 7 of the EEA Regulations.  As to these, regulation 7(3) provided that:

“(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”.

53.	In any event, Mr Cox submitted that regulation 7(3) was inconsistent with Article 25 of the Directive which clarified that possession of a residence certificate was under no circumstances to be a pre-condition of the exercise of a right [of entry or residence].

54.	The second submission advanced by Mr Cox was also derived from EU law, but depended instead on the premise that the appellant was a UK national who had been exercising Treaty rights in France along with his unmarried partner and children.  Based on the Surinder Singh (C-370/90) principle, namely that when a community national who has availed himself of the right of freedom of movement, returns to his country of origin, he or she must at least enjoy the same rights of entry and residence as would be granted under Community law if his or her spouse chose to enter and reside in another Member State.  The appellant was exercising EU law rights as a self-employed person in France for five years, accompanied by his unmarried partner and his children.  Mr Cox submits that, on return to the UK he should enjoy the rights of residence for his family members as he would in France, acknowledging that the appellant’s partner is not a spouse as in Surinder Singh.

55.	He further relied on the case of O&B v Netherlands (C-456/12), which referred to Article 21 of the Treaty on the Functioning of the European Union (TFEU) and the Directive.  There the Grand Chamber held that where a Union citizen has created or strengthened family life with a third-country national during genuine residence pursuant to and in conformity with the conditions set out in Article 7(1) and (2) and Article 16(1) and (2) of the Directive in a Member State other than that of which he is a national, the provisions of that Directive apply by analogy where that Union citizen returns with the family member in question to his Member State of origin.

56.	While the parties in O&B were married, Mr Cox submitted that the principles of that case apply to the appellant and his partner by analogy, further relying on Netherlands v Eind (C-291/05).  At paragraph 36 of Eind the ECJ stated that “That deterrent effect [from leaving a Member State of origin] would also derive simply from the prospect, for that same national, of not being able, on returning to his Member State of origin, to continue living with close relatives, a way of life which may have come into being in the host Member State as a result of marriage or family reunification”.  Mr Cox submitted that once the UK authorities recognised the appellant’s partner as a member of the appellant’s family in December 2002, any barrier to her being able to remain with him could undermine his right to free movement.

57.	The third ground relied on by Mr Cox was derived from the cases of Ibrahim and Teixeira v Secretary of State for the Home Department (C-310/08 and C-480/08).  This found that the introduction of the Directive had not affected rights derived from Baumbast (C-413/99) and Article 12 of Regulation 1612/68.  He submitted that the facts of the case demonstrated a right to reside on the basis that the appellant’s partner was the primary carer of two children of a former worker in education, and that the right was not dependent on either parent retaining worker status or being self-sufficient.

58.	In relation to the first ground, Mr O’Connor disputes that the grant of leave in December 2002 was other than under domestic UK law.  He submits that, although the appellant may have been recognised as an EEA national, the letter grants “leave to remain”, and refers, in the event that the appellant’s partner might no longer be living with the appellant when seeking to extend her leave, to her needing to qualify in “some other capacity under the Immigration Rules”.  Nevertheless, referencing paragraph 7.92 of the 6th Edition of Macdonald’s Immigration Law and Practice, Mr Cox has submitted that following Reed, UK Home Office policy has been to apply the unmarried partners rule to the partners of EEA nationals, namely rule 295D or 295E of the Immigration Rules.  It seems to me that if the rule has been applied to the appellant in his capacity as an Irish national, then it is being applied as a matter of policy to comply with the ECJ decision in Reed, whereas if it is applied in his capacity as a British national it has no EU law dimension.  I consider that the timing of the grant of an EEA residence card to the appellant and the reference to that document in the letter of 20 December 2002 means that the Immigration Rules have been applied to his partner in an EU context, rather than under pure UK domestic law.

59.	Mr O’Connor further submitted that any right to reside enjoyed by the appellant’s partner expired in December 2004.  He has referred in submissions to two subsequent stamps in the appellant’s partner’s passport on 23 December 2004 and 27 August 2008 granting leave to enter the UK.  It appears to me that the reference to a grant of leave on 23 December 2004 is in fact an erroneous reference to the stamp endorsed in the passport dated 23 December 2002 granting leave until 23 December 2004.  However, it does appear that the appellant’s partner was granted leave to enter for a period of six months on 27 August 2008 as a visitor under Immigration Rules with a prohibition on recourse to public funds.  Contrary to Mr Cox’s submission, he says that as the leave (if indeed it was granted under policy reflecting EU law obligations) expired on 23 December 2004, it does not stand as proof of a durable relationship at the date of claim on 18 December 2009.  As far as the UK is concerned, the appellant’s partner having left the UK for the majority of the period until August 2008, when leave to enter on a purely domestic law basis was granted, I consider that there is force in that submission.

60.	Mr O’Connor submits that, as the date of claim was 18 December 2009, the situation has to be considered since the Directive came into effect.  He submits that no direct provision is made within the Directive for extended family members, but that the provision lies entirely with the UK domestic provisions.  He further relied on a decision of Commissioner Jacobs in CIS/612/2008 in which he had found that – notwithstanding Article 25 of the Directive – it was necessary to have a residence certificate from the host state for a right to reside to be conferred.  Following Rahman (C-83/11) he submitted that Member States enjoyed a wide discretion when determining the criteria for the entry of extended family members.  I agree that the grant of leave in December 2002 does not bind the UK as proof that the appellant’s spouse was in a durable relationship with the appellant in December 2009.

61.	The question of whether the appellant’s partner, as an extended family member, enjoyed any right to reside in the UK depended on a decision by the Secretary of State under regulation 17(5) of the EEA Regulations.  I do not consider that this right could have been established by the past decision granting leave to remain under the Immigration Rules.  In particular, that decision was based on UK domestic policy aimed at ensuring equality of treatment between UK and other EEA nationals in respect of their unmarried partners.  It was not based on the framework of rights established by the Directive after 30 April 2006 which the appellant seeks to rely on as the basis of the present claim.  I reject the first argument submitted by Mr Cox.

62.	Mr O’Connor submitted that Mr Cox’s second ground was not established.  In particular, he observed that the family members in the case law relied upon (Surinder Singh, O&B, Eind) were all within the narrow definition of family member in Article 2(1) of the Directive, rather than being other family members within the meaning of Article 3(2) of the Directive or “extended family members” within the EEA regulations.  He further submitted that the appellant’s partner had no need to rely on the direct effect of the Treaty, since she could apply to remain as an extended family member.  He further submitted that such a direct right would be inconsistent with Treaty rights, as returning UK nationals would be in a more advantageous position than EEA nationals seeking to bring an unmarried partner to the UK.

63.	After I had heard oral argument in this case, I became aware of the decision of the Upper Tribunal (Immigration and Asylum Chamber) in Secretary of State for the Home Department v Kamila Santos Campelo Cain (IA/40868/2013).  I invited the parties to make submissions on this case if they felt it to have any relevance to the present case.  In the event, I understand due to work pressures, neither party provided me with written submissions.

64.	While the appellant’s first argument depended on the fact that he holds Irish nationality, the second argument is dependent on the fact that he lived and was self-employed in France for five years as a British national.  Mr Cox accepts that regulation 9 of the EEA Regulations - which is clearly derived from Surinder Singh - does not apply.  Nevertheless, he submits that the appellant was a British national exercising Treaty rights and that the position of his unmarried partner is analogous to the position of a spouse in Surinder Singh from the point of view of barriers to free movement.

65.	Similar argument was considered in Kamila Santos Campelo Cain.  There a British national and his unmarried non-EEA national partner had three children, one of whom was born when he was exercising Treaty rights in Spain and Portugal over a two year period.  It was argued that, whereas regulation 9 of the EEA Regulations did not apply to unmarried partners of British nationals, there was no distinction in principle which could be made between married and unmarried partners.  The Upper Tribunal (Haddon-Cave J and Judge Kopieczek) accepted that the exercise of the right of free movement was as likely to be affected by the inability of a durable partner to reside with the EEA national as it would be were his or her spouse to be denied residence status.  It accepted at paragraph 39 that the Surinder Singh principle does extend to persons such as the appellant who are in a durable relationship.  I agree with this conclusion.  It seems to me that Surinder Singh must now be read in the light of any new rights arising from the Directive, such as those benefiting family members falling within Article 3.2.

66.	The Upper Tribunal recognised that there was no provision in the Directive which is equivalent to the Surinder Singh principle, “that principle being founded upon Community law in general” (paragraph 47).  The Upper Tribunal then considered the case of Secretary of State for the Home Department v Ihemedu [2011] UKUT 340 (IAC).  Ihemedu decided that the exercise of discretion to admit an extended family member under regulation 17(5) of the EEA Regulations was a matter for the Secretary of State alone and that a tribunal was not entitled to exercise the same jurisdiction on appeal.  The conclusion in Kamila Santos Campelo Cain was that the appeal was allowed as being not in accordance with the law on the basis that it remained for the Secretary of State to exercise her discretion in relation to whether or not to issue the appellant with a residence card as an extended family member.

67.	At paragraph 23 of Surinder Singh the ECJ held that “this case is concerned not with a right under national law but with the rights of movement and establishment granted to a Community national by Articles 48 and 52 of the Treaty … when a Community national, who has availed himself of those rights returns to his or her country of origin, his or her spouse must enjoy at least the same rights of entry and residence as would be granted to him or her under Community law if his or her spouse chose to enter and reside in another Member State …”.

68.	Having accepted that the Surinder Singh principle applied to the appellant in Kamila Santos Campelo Cain it appears to me that the Upper Tribunal disposed of that case in an illogical way.  Its decision placed the appellant in the position of an EEA national with an unmarried partner applying to enter the UK, with a requirement to apply for a residence card under regulation 17(5) of the EEA Regulations.  However, the protagonists in Kamila Santos Campelo Cain were not in that position.  They had exercised Treaty rights in Spain and Portugal after 30 June 2006, and therefore the Directive was applicable to them.  The non-EEA national partner could, on application, have been granted a right to enter and reside under Article 3.2 of the Directive as a partner in a durable relationship with a Union citizen under the domestic provisions applying in those host Member States.

69.	The Directive leaves the form of any relevant domestic provisions to the individual Member States.  Therefore a uniform approach to the question of who falls within Article 3.2(b) cannot be expected.  However, the Surinder Singh principle must apply to rights exercised under the Treaty and secondary law.  Where a UK national has brought his unmarried partner to a different Member State in the exercise of free movement rights, and his or her entry and residence has been facilitated, I consider that there has been an exercise of rights under Community law – albeit in the specific form authorised by the domestic law of that host Member State.  It seems to me that in order to apply Surinder Singh principles correctly, the UK authorities would have to afford the unmarried partner of the returning UK national the same rights of entry and residence as previously enjoyed in the host Member State.  This implies to me that it would be necessary for the UK to recognise a residence card issued by the domestic authorities of a different Member State to the unmarried partner of a returning UK national as if it were a UK residence card, even though different criteria may well be applied in determining eligibility to it.

70.	In the present case, the appellant was clearly exercising his right of establishment as a self-employed person.  However, I do not know the precise immigration status of the appellant’s partner in France from December 2002 to 30 April 2006 when the Directive came into effect and with it the provisions relating to partners in a durable relationship.  Nevertheless, after the Directive came into effect, the French authorities would have been required to transpose the Directive into French law, including the requirement to issue a residence card to family members under Article 9.

71.	I directed the appellant in the present case to provide a copy of any residence card issued to his partner in France.  Those representing the appellant produced a document headed “Récépissé de Demande de Carte de Séjour”, which on the face of it permitted three months temporary residence and employment from 5 February 2007 to 4 May 2007 if accompanied by the passport of the appellant’s partner.  It appears to me that this was a temporary document issued pending the grant of a residence card, being a certificate of application for the residence card, such as might be required by Article 10.1 of the Directive.  There was some further correspondence aimed at clarifying the status of this document, after which it was accepted by those representing the appellant that it was evidence of an application for a residence card.  However, it was also confirmed that a residence card was never issued to the appellant’s partner.

72.	Had such a document been produced by the appellant, on the basis of my reasoning above, I would have been satisfied that this gave a direct right to reside in the UK on Surinder Singh principles.  However, without evidence that such a document was issued by the French authorities, I cannot be satisfied that the appellant and his partner were resident in France on the basis of Community law rights, and in particular that the partner was recognised by France as a family member in the Article 3.2 sense.  It follows that the second ground advanced by the appellant must fail.

73.	As far as the third ground is concerned, Mr O’Connor submitted that no reliance could be placed on the appellant’s previous work in the UK citing the decision of the three-judge panel of the Upper Tribunal in Secretary of State for Work and Pensions v RR [2013] AACR 20.  In that case, a German national had resided and worked in the UK between 1985 and 2002.  She gave birth to a daughter with British nationality in 2000, before returning to Germany for a period of four years.  She was refused income support on the basis that she had no right to reside.  She had claimed a right to reside on the basis of Article 12 of 1612/68.  Noting, for example, that the right of permanent residence can be lost by absence from a host Member State exceeding two years the three judge panel found that rights relating to the integration of a Union citizen who has exercised rights of free movement “do not last forever”.  However, the matter of whether rights had been lost had to be determined in the basis of whether the absence could be characterised as temporary, which in turn depended on all the circumstances of the case.

74.	In the present case the appellant was granted his EEA residence permit in December 2002 and his partner was granted leave to remain for a two year period.  The appellant was then an EEA national working in the UK as a civil servant until April 2004.  He left the UK with his partner to take up self-employment in France.  It is my understanding that he initially returned to the UK in August 2008 but returned to work in France during the holiday season in July and August 2009.  On his return he was self-sufficient for a period, living off savings, and then claimed JSA.  Evidence showed that the appellant’s two children commenced education in Northern Ireland from January 2009 and September 2009 respectively.

75.	Mr Cox has submitted that the appellant’s partner has the right to reside as the primary carer of the children in education of a worker for the purposes of Article 12 of Regulation 1612/68.  Mr O’Connor submits that the appellant’s partner has lost this right due to the break in continuity of residence in the UK.  He relies on SSWP v RR where the three judge panel said:

“79.   	In our view, rights relating to the process of integration of a Union citizen who has exercised rights of free movement do not last forever.  This much is clear in relation, for example, to the acquisition of the right of permanent residence under Articles 16 and 17 of the Citizenship Directive.  Under Article 16(4) the right of permanent residence can be lost “through absence from the host Member State for a continuous period of two years.”

80.      We have concluded that whether an absence from the host Member results in the loss of the ability to claim the integration rights in Article 12 will be a matter to be determined in the light of all the circumstances of each case.  Where a person has established an habitual residence in another Member State for a substantial period, we consider that the right to rely on a period of employment in an earlier period of residence in order to trigger the rights in Article 12 will be lost.  Where the absence can properly be characterised as temporary having regard to all the circumstances, the right will not be lost.  We observe that the test will always arise by considering what has happened in the past rather than what might happen in the future.

81.    The most relevant factors will be (a) the reasons why the person ceased to be resident in the host Member State in which the rights are being asserted; (b) the activities which the person undertook in the country to which he or she went, including economic activity in that country; (c) the roots which the person put down in the new country of residence; (d) the contact and its quality which the person retained with the host Member State; and (e) the length of absence from the host Member State.  The longer the absence, the more difficult it will be to rely on the earlier period in work”.

76.	I accept the submission of Mr Cox that the right of access to education under Article 12 of 1612/68 implies that the child of a migrant worker or former migrant worker has an independent right of residence when that child wishes to continue his or her education in the host Member State, and that the parent who is the child’s primary carer has a corresponding right of residence (see Case C-480/08 Teixeira [2010] ECR I-1107, paragraphs 36 and 53).  However, the present case has strong parallels with the case of SSWP v RR.  The question I must consider is whether the absence of the claimant for a period of five years in France precludes reliance on the earlier period of work in the UK in order to secure rights under Article 12.

77.	In Baumbast (at paragraph 50) it was said that “the aim of Regulation No 1612/68, namely freedom of movement for workers, requires, for such freedom to be guaranteed in compliance with the principles of liberty and dignity, the best possible conditions for the integration of the Community worker's family in the society of the host Member State”... In the present case the children have spent the early part of their lives in France, with a return to the UK only when school age has been reached.  It appears to me that the absence of the appellant and his family from the UK for the period of some five years does have the effect of causing integration rights to be lost.  In any event, I consider that, while not strictly speaking bound by it, I must follow the decision of the three-judge panel of the Upper Tribunal in SSWP v RR in the interests of comity.  It follows that I reject the third ground advanced by Mr Cox.

78.	In conclusion, I do not accept the submissions that the appellant’s partner had a right to reside under EU law at the relevant time.  I find that she was in fact granted leave to enter the UK under domestic immigration law, subject to a condition that she did not have recourse to public funds.  By section 115(9)(b) of the Immigration Act 1999, someone who has leave to enter or remain in the United Kingdom which is subject to the condition that he does not have recourse to public funds is excluded from benefits including income-based JSA.  For that reason, I conclude that the appellant was not entitled to a dependant’s increase in respect of his partner at the material time.

(signed)  O Stockman

Commissioner

14 September 2015