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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2006] UKSSCSC CPC_2920_2005 (12 May 2006) URL: http://www.bailii.org/uk/cases/UKSSCSC/2006/CPC_2920_2005.html Cite as: [2006] UKSSCSC CPC_2920_2005 |
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[2006] UKSSCSC CPC_2920_2005 (12 May 2006)
DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS
Representation:
Mr Stephen Knafler of Counsel for the claimant
Mr Jason Coppel of Counsel for the Secretary of State
"[The claimant] is not entitled to Pension Credit. That is because he does not have the right to reside in the United Kingdom and is consequently not habitually resident in the UK. He fails to meet all the conditions of entitlement to make a valid claim to Pension Credit".
"[The claimant] was originally from Somalia. He is now a citizen of Norway, having lived there since 15/12/94. He and his 2 children arrived as refugees. His first wife had died in Somalia, having been shot in the course of the civil war in 1991.
He was given Norwegian citizenship in March 2002.
He is aged 69, his date of birth being 5/12/36.
"[He] has in Norway a wife whom he married in 1994 who joined him in Norway in 1999, and 4 young children, one born since he left.
He has not worked in Norway. He supported his family on benefit.
His daughter, [A], was born on 4.1.88. She was born in Somalia and she had lived with him in Norway. She had not wished to stay in Norway. She chose to leave Norway to go to the UK. Neither he nor she are UK nationals. Neither had visited the UK before they came. [The claimant] arrived on 20.4.04. His daughter had arrived earlier, possibly only a few days earlier.
He does not speak English.
He does not wish his daughter to live alone in a foreign country. He came intending to find and persuade her to return. He did not plan to stay and made no advance preparation to move her.
He quickly found her within a week and she would not return.
He then decided that he would stay with her to protect her.
His wife indicated that she would not join him – she did not dissent from him leaving, but she would not join him. She is bringing up their 4 young children alone. He has described himself as having many family problems in Norway.
His oldest son also remains in Norway. He is an adult and independent.
[The claimant] has stayed now for over a year.
English medical cards were issued on 16.7.04. He has been awarded child benefit from 10.5.04.
His daughter speaks a little English. She started an English course in July 2004.
They were living at the date of claim and in July 2004 at the home of Jamal Mohomud who is the tenant at the address from which the claim was made. Mr Mohomud is the son of an old friend of [the claimant]. Mr Mohomud is the only person [the claimant] knew in the UK on arrival.
He claimed pension credit by a form signed on 14.6.04 and hand endorsed received 21.6.04.
He came without resources and without possessions. He has stayed with and been supported by members of the Somali community, without having a settled home throughout the period since his arrival, and without having been a member of the same household as his daughter throughout. Those who helped him did not have the space to accommodate both. He was living at the time of his statement on page 135 with Ms [N… H…], whose father he had known in Somalia.
He has looked for work here unsuccessfully, since the decision on income support was not seeking work at that time.
[The reference to "income support" is presumably a reference to Pension Credit]
His daughter [A] started studying at the City of Bristol College in Health and Care on 6.9.04. She had earlier studied English. She had a part-time post as a voluntary youth worker from November 2004 to February 2005. That was unpaid work but small sums were provided for travel expense and subsistence.
He has no means of self-support.
He did not come to depend on his daughter.
She undertook a college course to help her learn English and wishes to continue her studies.
She has supported him in the general sense and she has shared what she has got from her voluntary work.
They have been supported by members of their own community."
"(1) Subject to paragraph (2) a person is to be treated as not in Great Britain if he is not habitually resident in the United Kingdom … but for this purpose, no person is to be treated as not habitually resident in the United Kingdom who is –
[The regulation continues by setting out circumstances which do not apply to the instant case.]
(2) For the purposes of treating a person as not in Great Britain in paragraph (1) no person shall be treated as habitually resident in the United Kingdom…if he does not have a right to reside in the United Kingdom…"
"Mr King, [the claimant's] representative conceded that the claimant 'could not be treated as' habitually resident. No argument was presented on the rights of residence of a work seeker or that [the claimant] was a work seeker. The tribunal was not asked to consider (a) or (e) of regulation 2(1) on the evidence that concession was properly made. Mr King suggested that [the claimant] might be protected as a dependant of his daughter on the basis that she qualified in person but plainly he did not arrive or remain on that basis. Nor was she self-sufficient and able to support him at any stage with which the tribunal is concerned. The evidence does not show that she was a qualified person."
It would appear from the tribunal's reasoning that the issue before it was as follows:
"The issue arising is whether 'shall be treated as habitually resident' refers to anyone whether habitually resident or not, or whether it refers to only those whom paragraph (1) requires to be 'treated as' habitually resident."
"1. Member States shall grant the right of residence to nationals of Member States who do not enjoy this right under other provisions of Community Law….provided that they themselves….are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence."
"REAFFIRMING the high priority attached to the privileged relationship between the European Community its Member States and the EFTA States which is based on proximity, long-standing common values and European identity;
DETERMINED to contribute on the basis of market economy to world-wide trade liberalisation and cooperation in particular in accordance with the provisions of the General Agreement on Tariffs and Trade and the Convention on the organisation for Economic Cooperation and Development.
CONSIDERING the objective of establishing a dynamic and homogenous European economic area based on common rules and equal conditions of competition and providing for the adequate means of enforcement including at the judicial level and achieved on the basis of equality and reciprocity and of an overall balance of benefits, rights and obligations for the Contracting Parties;
DETERMINED to provide for the fullest possible realisation of the free movement of goods, persons, services and capital within the whole European Economic Area, as well as for strengthened and broadened cooperation in flanking and horizontal policies; …
WHEREAS in full deference to the independence of the courts the objective of the Contracting Parties is to arrive at, and maintain, a uniform interpretation and application of this Agreement and those provisions of Community Legislation which are substantially reproduced in this Agreement and derive at an equal treatment of individuals and economic operators as regards the four freedoms and the conditions of competition;
Part III Chapter 1 Article 28 provides:
"1. Freedom of movement for workers shall be secured among EC Member States EFTA States.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of EC Member States and EFTA States as regards employment remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of EC Member States and EFTA States for this purpose;
(c) to stay in the territory of an EC Member State or an EFTA State for the purposes of employment in accordance with the provisions governing the employment of nationals of that state laid down by law regulation or administrative actions."
Chapter 2 of that Part concerns the right of establishment and Article 31 provides:
"1. Within the framework of the provisions of this Agreement there shall be no restrictions on the freedom of establishment of nationals of an EC Member State or an EFTA State in the territory of any other of these states. This shall also apply to the setting up of agencies, branches or subsidiaries by nationals of any EC Member State or EFTA State established in the territory of any of these states.
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of Article 34 second paragraph, under the conditions laid down for its own nationals by the law of the country where such establishment is affected, subject to the provisions of chapter 4.
2. Annexes VIII to XI contain specific provisions on the right of establishment."
"SECTORAL ADAPTATIONS
For the purposes of this Annex and notwithstanding the provisions of Protocol 1, the term "Member State(s)" contained in the Acts referred to shall be understood to include in addition to its meaning in the relevant EC Acts Austria, Finland, Iceland, Liechtenstein, Norway, Sweden and Switzerland."
The Acts referred to include the Directive of 90/364 "on the right of residence" and provides that:
"The provisions of the Directive shall, for the purposes of the Agreement, be read with the following adaptation:
In the first sub-paragraph of Article 2(1), the words "Residence permit for a national of a Member State of the EEC" shall be replaced by the words "Residence permit".
"Annex V contains specific provisions on the free movement of workers."
Article 31, paragraph 32 provides:
"Articles VIII to XI contain specific provisions on the right of establishment."
(Signed)
D J MAY QC
Commissioner
(Signed)
J M HENTY
Commissioner
(Signed)
HIS HONOUR JUDGE MARTIN
Chief Commissioner, Northern Ireland
Sitting as a Deputy Commissioner in Great Britain
Date: 12 May 2006