IN THE UPPER TRIBUNAL	Case No.  CJSA/1158/2015
ADMINISTRATIVE APPEALS CHAMBER

Before:	M R Hemingway: Judge of the Upper Tribunal 

Decision:	The decision of the First‑tier Tribunal sitting at Lincoln on 28 October 2014 under reference SC040/14/00419 involved an error of law and is set aside.  

	In remaking the decision, I give the decision which the First‑tier Tribunal should have given which is that the appellant is not excluded from entitlement to income‑based jobseeker’s allowance by section 115 of the Immigration and Asylum Act 1999.  

	This decision is made under section 12(1), 12(2)(a) and 12(2)(ii) of the Tribunals, Courts and Enforcement Act 2007.  

REASONS FOR DECISION

1.	This is the appellant’s appeal to the Upper Tribunal against a decision of the First‑tier Tribunal (F‑tT) dated 28 October 2014.  My decision is that the F‑tT’s decision involved an error of law.  I allow the appeal to the Upper Tribunal and set aside the F‑tT’s decision.  I substitute my own decision to the effect that the appellant is not excluded from claiming jobseeker’s allowance by section 115 of the Immigration and Asylum Act 1999.  As a consequence of this decision it will now be necessary for the respondent to consider the various other conditions of entitlement with respect to the claim made by the appellant on 12 March 2014 and to make a new decision upon that claim.  

2.	The appellant was born on 21 February 1991.  As at the date of the decision under appeal he was aged 23 years.  He is a national of Turkey.  It appears that he first came to the UK as a dependant child of his father, also a national of Turkey, who had been granted limited leave to enter the UK under the European Community Association Agreement with Turkey (commonly known as the Ankara Agreement).  The appellant had then received various subsequent grants of limited leave to remain, the most recent being a grant of limited leave to remain which was not due to expire until 10 May 2016.  A stamp in his passport (also variously referred to in the papers before me as a “biometric residence permit” and a “visa”) indicates that it is a condition of the leave that he has “no recourse to public funds”.  

3.	The appellant made a new claim for income‑based jobseeker’s allowance on 12 March 2014.  He supplied a copy of his passport.  The respondent refused the application on 19 March 2014 on the basis that the passport stamp indicated that he could not have recourse to public funds.  The appellant disputed the decision (though not the content of the stamp) and the respondent undertook an informal reconsideration on 2 April 2014 but did not alter the decision in any way.  The appellant then contacted the Home Office and received, by way of response, a letter of 15 April 2014.  The salient part of that letter reads as follows:

	“I can confirm that the Biometric Residence Permits have been issued correctly.  You are correct in your interpretation of the guidance on public funds, in that Turkish nationals may access certain public funds, but do not automatically have unrestricted access to social assistance.”

4.	The Home Office suggested that the appellant, if he thought himself to be entitled to a particular public fund, should make enquiries of “the relevant department responsible for the administration of that fund”.  The appellant then wrote to the respondent, on 28 April 2014, sending a copy of the letter from the Home Office and referring the respondent to a particular part of the WWW.GOV.UK website which contained information about the entitlement of Turkish nationals to public funds.  The respondent treated that letter as a request for a mandatory reconsideration.  The respondent undertook such a reconsideration on 5 June 2014 but decided that the decision should stand because, whilst the Home Office had indicated in their letter to the appellant that Turkish nationals might be able to access certain public funds, the stamp in the appellant’s passport indicated that he could not.  

5.	The appellant then appealed to the F‑tT.  Attached to his grounds of appeal was a document he had printed out from a Home Office website which appeared to indicate that nationals of countries who had ratified the European Convention on Social and Medical Assistance (ECSMA) were entitled to access certain public funds one of which was income‑based jobseeker’s allowance.  

6.	Neither the appellant nor the respondent sought an oral hearing.  Accordingly, the F‑tT decided the appeal on the papers.  The papers before it included a written submission lodged by the respondent in which it was contended that the appellant was a person subject to “immigration control”, was not an EEA national and was, therefore, excluded from receiving income‑based jobseeker’s allowance by the operation of section 115 of the Immigration and Asylum Act 1999.  Further, the passport stamp indicated that he could not have recourse to public funds.  The Home Office letter had indicated that the biometric residence permit had been correctly issued and had confirmed that Turkish nationals do not have unrestricted access to social assistance.  Therefore, said the respondent, there was no such entitlement in this case. 

7.	The F‑tT dismissed the appellant’s appeal.  In its statement of reasons for decision (statement of reasons) it said this:

	“	3.	As stated in the Decision Notice, I accepted the submission prepared by the respondent.  

		4.	The appellant’s case was that there was documentary evidence that he is entitled to a number of benefits including income‑based jobseeker’s allowance (see page 10 of the bundle of papers).  

		5.	The respondent’s case was that the appellant’s visa indicates that he has no recourse to public funds (page 39) and is therefore not entitled to an award of income‑based jobseeker’s allowance.

		6.	I accepted the respondent’s reasons for refusing to award benefit (see pages 15‑16 where the reasons are set out).

		7.	The only thing I would add is that the documentation supplied by the appellant indicates that he ‘can claim’ various benefits.  The documentation gives no indication that an award will be made.  As stated on page 16, ‘Turkish nationals do not automatically have unrestricted access to social assistance.’ I was of the view that it was clear that it had been specified on the appellant’s visa that he has no recourse to public funds.  I therefore felt that the respondent’s decision was correct.”

8.	The document at page 10 of the papers was the printed webpage.  The document at page 39 was a photocopy of the passport stamp.  The document at pages 15 and 16 was the mandatory reconsideration notice.   

9.        The appellant applied for permission to appeal to the Upper Tribunal.  In his grounds of appeal he contended that the exclusion provisions contained within section 115 of the Immigration and Asylum Act 1999 did not apply to him as a consequence of the operation of regulation 2(1) and paragraph 4 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000.  A district tribunal judge (indeed the same judge who had dismissed the appeal) granted permission to appeal.  

10.	The Secretary of State has now filed a written response to the grant of permission.  The appeal is supported.  The respondent says that Turkey is a state which has ratified the ECSMA and that, as a consequence of the content of regulation 2(1) and Schedule 1, Part I of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, the exclusion contained within section 115 of the Immigration and Asylum Act 1999 does not apply.  The appellant has made no further comments.  

11.	It is appropriate, at this stage, to set out the relevant legislation.  I start with section 115 of the Immigration and Asylum Act 1999.  The relevant provisions read as follows:

	“Exclusion from benefits

	115	-	(1)	No person is entitled to universal credit under Part I of the Welfare Reform Act 2012, income‑based jobseeker’s allowance under the Jobseekers Act 1995 or to state pension credit under the State Pension Credit Act 2002 or to income‑related allowance under Part I of the Welfare Reform Act 2007 (employment and support allowance) or to Personal Independence Payment or to …under the Social Security Contributions and Benefits 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)	Regulations under subsection (3) may provide for a person to be treated for prescribed purposes only as not being a person to whom this section applies …

			(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; …

12.	The excluded words have no bearing on this appeal.  

13.   It is then necessary to look at the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000. Those Regulations are made under section 115 of the Immigration and Asylum Act 1999 and the salient parts, for the purposes of this appeal, read as follows:

	“Persons not excluded from specified benefits under section 115 of the Immigration and Asylum Act 1999.

	2.	-	(1)	For the purposes of entitlement to income‑based jobseeker’s allowance, income‑support, a social fund payment, housing benefit under the Contributions and Benefits Act, Income‑Related Employment and Support Allowance, or state pension credit under the State Pension Credit Act 2002, as the case may be, a person falling within a category or description of persons specified in Part I of the Schedule is a person to whom section 115 of the Act does not apply.

PART I
	1.	… 

	4.	A person who is a national of a State which has ratified the European Convention on Social and Medical Assistance (done in Paris on 11 December 1953) or a State which has ratified the Council of Europe Social Charter (signed in Turin on 18 October 1961) and who is lawfully present in the United Kingdom.

14.       Again, the excluded words have no bearing on this appeal.

15.	So, section 115 of the Immigration and Asylum Act 1999 does exclude certain persons from entitlement to certain public funds.  Amongst the funds or benefits a person may be excluded from claiming is income‑based jobseeker’s allowance. Excluded persons are those to whom section 115 applies. Section 115(9) contains a definition of “a person subject to immigration control”.  The appellant comes within that definition because he falls within 115 (9)(b) as his leave to remain is subject to a condition that he does not have recourse to public funds.  Section 115(3) says that at person who is subject to immigration control is one to whom section 115 applies (and therefore a person excluded from benefits which include income‑based jobseeker’s allowance) unless he satisfies such conditions as may be prescribed.  Section 115(4) makes it plain that regulations under subsection (3) may provide for a person to be treated, for prescribed purposes only, as not being a person to whom the section applies.  Regulations have been made under subsection (3) and these are the 2002 Regulations, the salient parts of which are set out above.  

16.	Turning to those Regulations, regulation 2(1) clearly has application in the context of income‑based jobseeker’s allowance as well as certain other benefits specified therein.  It says that section 115 does not apply to a claimant of such benefits if that claimant falls within a category set out in Part I of Schedule 1 to the Regulations.  Clearly, paragraph 4 of Part I to Schedule 1 states that a national of a State who has ratified the ECSMA and who is lawfully present in the United Kingdom falls within such a category.  The appellant, of course, is lawfully present because he has limited leave to remain.  Further, Turkey has ratified the ECSMA. 

17.	It inexorably follows, therefore, from all of the above, that the appellant is not a person excluded from entitlement to income‑based jobseeker’s allowance.  There is, I should add, no dispute about the fact that Turkey is one of a number of countries which has ratified the ECSMA.  That is readily apparent from a simple reading of the Convention itself.  

18.	The F‑tT erred in law because it did not turn its mind to the applicable legal provisions.  It was, of course, not assisted by the respondent who had produced a written submission to it which, whilst referring to the 1999 Act and the 2000 Regulations, did not identify the specifically relevant parts which I have highlighted above.  The F‑tT also erred in seeming to regard the wording of the passport stamp as being determinative.  It is clear, however, that even though a person does not have recourse to public funds, and who therefore falls within section 115(9)(b), that person can, nevertheless, qualify for certain benefits in certain circumstances as a consequence of the other provisions referred to above.  

19.	I would express some concern about the decision‑making process in this case.  It is not apparent, from the documentation before me, that the content of section 115 of the 1999 Act nor the 2000 Regulations were referred to and considered either at the initial decision stage or the informal reconsideration stage.  As to the mandatory reconsideration, they were referred to in so far as they were listed under the heading “Law used in this decision”, in the mandatory reconsideration notice sent to the appellant but the assessment of their content and potential relevance was perfunctory.  Even at the appeal stage the respondent’s submission did not identify regulation 2(1) or Part I to the Schedule as being of relevance when it is clear that they were highly relevant.

20.	Be that as it may, matters have now been put right.  The respondent will now have to go on to resolve the appellant’s claim for income‑based jobseeker’s allowance on the basis that he is not excluded from entitlement by section 115.  Given that the claim has now been outstanding since March 2014 and is a claim for an income‑related benefit, I would urge the respondent to deal with it as expeditiously as possible.  This will, of course, result in the issuing of a fresh decision.  Any such decision will carry its own fresh rights of appeal though, of course, if the decision is to allow the claim then that is not something which need concern the appellant further. 

21.	The appeal to the Upper Tribunal is allowed. 

			(Signed on the original)   

							M R Hemingway
							Judge of the Upper Tribunal 

			Dated:			            5 August 2015