[2004] UKSSCSC CIS_1972_2003 (24 May 2004)

CIS 1972 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER 

1	I dismiss the appeal. For the reasons below, the decision of the tribunal is not wrong in law.

2	The claimant and appellant (Mrs H) is appealing with permission of a chairman against the decision of the Leicester appeal tribunal on 18 February 2003 under reference U 42 038 2003 00131. 

3	I held an oral hearing in London on 11 May 2004. Mrs H was represented by Mr Reiza Khan of Hitslink Advice Centre. The Secretary of state was represented by Mr Daniel Kolinsky of counsel, instructed by Mr Kevin McClure of the Adjudication and Constitutional Issues Branch of the Department for Work and Pensions. I am grateful to them for their thorough submissions. I comment particularly that Mr Khan, who is not a lawyer, felt it necessary to put forward strong accusations during the course of this case but he did so, if I may say so, in an entirely professional way.    

REASONS FOR THIS DECISION 

The decision under appeal 

4	Mrs H arrived in Britain on 16 June 2002 with 5 dependent children to settle down here.  Previously she had been living in another state with her husband. He remained in that state. She has the nationality of that state, as does he. She had a sister in that state and no relatives in the UK, although she had friends here. She brought £2,000 with her. She had no right of residence in the UK and was neither a refugee nor someone with exceptional leave to remain. She had never previously been to the United Kingdom, but she had learnt English as a girl. No findings of fact were made directly about the children save that they had been found schools here. 

5	On 24 June 2002 Mrs H claimed income support for her family. On 8 or 9 August 2002 (the decision bears both dates), the Secretary of State decided that Mrs H was not habitually resident in the UK.  The reason given was:
	“Although customer has shown an intention to remain in the UK she has not yet spent an appreciable period of time here and is therefore not considered to be habitually resident in the UK.”

6	Mrs H appealed promptly. Her representative drew attention to the steps taken by Mrs H to sever her links with her previous state, and to the need to take account of both Mrs H’s rights under the Human Rights Act and also to the United Nations Convention on the Rights of the Child. The decision was reconsidered at the local office. It was confirmed, with express reference to the decision of the House of Lords in Nessa v Chief Adjudication Officer [1999] 1 WLR 137.

7	The appeal came before the appeal tribunal on the basis that Mrs H had shown a settled intention to remain here.  It found the facts I have summarised above
It allowed the appeal, concluding, “in all the circumstances that the appellant had satisfied the habitual residence test by 16 July 2002 being approximately one month after her entry to the UK.” But a chairman granted permission to appeal.

Issues in the appeal 

8	 When the case came to the Commissioners I first asked the parties to satisfy me that Mrs H and her children had no specific rights under European Union and related legislation and agreements. I am satisfied that this is so.

9	Mr Khan raised questions whether this decision was one taken by the local office in breach of the terms, or at least the spirit, of the Race Relations Acts. Because of the nature of that allegation and its importance, I felt it right both to direct the disclosure of full details of the allegation and to direct a full reply to the allegation on behalf of the Secretary of State once the details had been provided.  Full details were provided by both parties about the allegations and about the Race Equality Scheme of the relevant part of the Department for Work and Pensions. It became clear during the course of the exchanges that the allegations did not directly relate to this appeal. This is because I am looking at a decision of a tribunal that declined to confirm the decision of the Secretary of State (or local office). At the oral hearing the representative full accepted, and I record, that there was no allegation that the appeal tribunal itself was in any way subject to the criticisms he was making and also that those criticisms were not relevant to this appeal. I record this without comment about the wider criticisms, of which the Secretary of State is fully aware. But I make the point that a claimant’s nationality and ethnic origins are totally irrelevant to the operation of these rules unless they indicate some express positive legal entitlement or are specifically and neutrally relevant to a full determination of the factual position. That is why I have not indicated the state from which Mrs H came. Its identity is irrelevant. 

The claimant’s case 

10	Before me Mr Khan accepted that the law was laid down in the Nessa decision. The essence of his case was that Mrs H could not have done, nor been advised to do, anything more to show that she and the children were habitually resident here than she had done at the date of claim. In his view not only was the Secretary of State wrong in setting too long a period before allowing support to start, so also was the tribunal. He sought guidance on what else his client could have done to reduce the period. He also stressed the importance of her claim. It linked with entitlement to both housing benefit and council tax benefit. Finally, he emphasised that Mrs H was not only claiming for herself. She was also claiming for her children and they had rights also. He put strong reliance on the United Nations Convention on the Rights of the Child in assisting his case.

The Secretary of State’s case
 
11	For the Secretary of State, Mr Kolinsky took me to the decision in Nessa and to decisions of commissioners. The Nessa case looked at precisely the question that arises in this case. In his opinion on behalf of their lordships, Lord Slynn stated:

	“… whilst of course realising that some people seeking to come here may need immediate financial assistance, it is not necessary to the working of this particular legislation that the ordinary meanings of the word should be set aside
in order that there is no gap between habitual residence in one state and habitual residence in another state.
	If Parliament had intended that a person seeking to enter the United Kingdom or such a person declaring his intention to settle here is to have income support on arrival, it could have said so. It seems to me impossible to accept the argument at one time advanced that a person who has never been here before who says on landing “I intend to settle in the United Kingdom” and who is fully believed is automatically a person who is habitually resident here. Nor is it enough to say “I am going to live at X or with Y”. He must show residence in fact for a period which shows that the residence has become “habitual” and, as I see it, will or is likely to continue to be habitual.”

12	Mr Kolinsky argued that Mr Khan had fallen into the trap of running the two separate tests of intention to reside and actual residence together. Mrs H’s intention was not in dispute. But an appreciable period of actual residence must also be shown. That was a question of fact, but he noted the period of one month to which Lord Slynn referred in Nessa by reference to the statement of Butler Sloss LJ
in RE AF [1992] 1 FCR 269 that “ a month can be … an appreciable period of time.” He suggested that a month was the minimum period. 

13	He referred me to decisions of Commissioners. In CIS 4354 2000 Commissioner Henty declined to interfere with the decision of a tribunal that that claimant had not established that she was habitually resident in the UK after four months (the facts show that she did establish it a month later). In CIS 4389 1999 Commissioner Angus gave a decision on the facts that a claimant who had arrived in the United Kingdom on 20 October 1998, as a returning citizen with 2 children, was not habitually resident on 10 November 1998. In CIS 2643 2002 Commissioner Turnbull found as fact that a period of about 6 weeks was not a sufficient period to enable it to be said that the residence of the claimant in that case in the UK was habitual. In CIS 4474 2003 Commissioner Jacobs decided that the claimant in that case was habitually resident on the day she arrived in the UK. Commissioner Jacobs refers to the decision of Commissioner Howell QC, reported as R(IS) 6/96, in which Commissioner Howell observed that Commissioners deciding cases for themselves tend to accept periods between one month and three months. Commissioner Jacobs confirmed that this was his impression and that in the “general run of cases” the period was between one and three months. 

14	I was referred in written submissions to further Commissioners’ decisions noted in the Welfare Rights Bulletin April 2000, p. 155, and no doubt others also could be added. I comment only that I have seen tribunals decide on shorter periods than a month and longer periods than three months without being appealed, or appealed successfully. Too much should not be read into the facts of individual decisions or, I suggest, trends in the small number of – usually difficult – cases that Commissioners come to decide on the facts.  It does not help when Commissioners’ decisions are used to play a forensic game (for it is no more than that) of finding the longest, or the shortest, period endorsed by a Commissioner and then claiming some general rule from it. Parliament could have set a specific time limit. It did not. Advisors cannot seek certainty where it does not exist.  

Rights of the children 

15	This case was not only a claim for Mrs H. It was a claim for her five dependent children. Mr Khan based his case on their rights in addition to those of their mother. He pointed out that the United Kingdom is a party to the Convention on the Rights of the Child adopted by the United Nations General Assembly and in force from 2 September 1990. The following initial articles of the Convention are in point:

Article 2

1	States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or status.

2	States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.

Article 3

1	In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

…

Article 4

States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the present Convention. With regard to economic, social and cultural rights, States parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation.

16	The Convention then sets out a series of children’s rights echoing (as is made clear in the preamble) the Universal Declaration of Human Rights and the United Nations Covenants on Civil and Political Rights, and on Economic, Social and Cultural Rights. As part of these rights, it provides:  

Article 26

1	States Parties shall recognise for every child the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realisation of this right in accordance with their national law.

2	The benefits should, where appropriate, be granted, taking into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child, as well as other considerations relevant to an application for benefits made by or on behalf of the child. 

This article echoes an economic and social right rather than a civil and political right, and Article 4 applies. 

17	Mr Kolinsky argued that the United Kingdom had acceded to the Convention but had not enacted it. It therefore did not form part of the internal law of the United Kingdom. I reminded him that courts and tribunals always have the international obligations of the United Kingdom in mind when applying unclear provisions, but he argued that there was no ambiguity here so that did not apply. I agree with him on that point and that, in a direct sense, this Convention is not part of the statute law of the United Kingdom – unlike for example the European Convention on Human Rights.  But it remains part of the context of the judicial exercise of a discretion, and the word “appreciable” inevitably gives a margin of discretion to the appreciator. 

18	I agree with Mr Khan’s wider point, though not necessarily his conclusions from it. The claim for the children is relevant to the overall assessment of Mrs H’s claim. That could raise several factual issues, though none were explored here. In terms of compliance with the Convention, attention should be paid to the award of child benefit and other benefits.  More broadly, the other rights of the children, and the rights and obligations of the father, may be relevant in assessing whether the move of the mother and children to the United Kingdom is permanent. For example, does it take place in accordance with all relevant child protection laws? That may be a reason for hesitation in an individual case.  In any event, the settlement of the children must be part of the total story. But I do not think that references to the Convention take the matter any further than that. 

Did the tribunal err in law?

19	I turn back to the tribunal decision with those considerations in mind. It was aware of and applied the correct test. Intention was not in dispute and it looked at the full case before it to reach its own decision on the facts. It did not apply a “rule” that there is a minimum of a month. There is no such rule. It did exactly what it was there to do. It applied the test of actual residence to a full appreciation of all the circumstances independently of the views of the Secretary of State, reaching its own conclusion.  Its statement shows that it had the children in mind. There is no basis in law for calling its judgment into question.  I dismiss the appeal. 

								David Williams
								Commissioner
								24 May 2004
[Signed on the original on the date shown]