Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
As the decision of the First-tier Tribunal (made on at under
reference ) involved the making of an error in point of law, it is SET ASIDE
under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act
2007 and the decision is RE-MADE.
The decision is: on his claim for income support, made on 3
January 2007 and refused on 21 May 2007, the claimant was a person from abroad
whose applicable amount was nil. He was not entitled to income support.
Reasons
for Decision
1.
This case began as an appeal from the appeal tribunal to the Social
Security Commissioner. Since then, the social security jurisdictions of the
tribunal and the Commissioner have been transferred to the First-tier Tribunal
and the Upper Tribunal respectively. That has not affected the handling of the
case or the outcome. The progress of the case has been delayed in order to
await decisions of the senior courts and the Court of Justice of the European
Union.
A.
Mr S’s personal history
2.
Mr S is a citizen of the Slovak Republic. He came to the United Kingdom in 1996 as an asylum seeker. His claim was never decided; that is an
important fact in this case. In 1997, he was given permission to work. The
papers do not show his full work history. However, it is clear that he worked
as a self-employed builder from at least 2000 to May 2006. He was registered
with Her Majesty's Revenue and Customs. He then obtained work as an employee with
Best Connection Group Ltd. He registered this work under the Accession State
Worker Registration Scheme. The Registration Card was issued on 3 April 2007
and recorded that the work began on 29 September 2006. By the date of issue, Mr
S had become incapable of work. His P45 shows that he left the employment on 26
November 2006.
B.
The claim for income support and the Secretary of State’s decision
3.
Mr S claimed income support on 3 January 2007. The Secretary of State
refused his claim on 21 May 2007 on the ground that he was a person from abroad
whose applicable amount was nil. The effect was that he was not entitled to
income support.
C.
The appeal to the First-tier Tribunal
4.
Mr S exercised his right of appeal to the First-tier Tribunal, which
decided that he had a right to reside. The judge set out his reasoning on the
decision notice:
The appellant has a right to
reside in the UK by virtue of reg 6(1)(b) of the 2006 regulations, as he is a
‘worker’, and retains that status despite his incapacity for work by virtue of
reg 6(2)(a) of the same regulations. Despite being a national of the Czech
Republic, he is not an ‘accession state national requiring registration’ by
virtue of reg 2(4) of the 2004 regulations, since he had already worked legally
as a self employed person for over 12 months from May 2004. Therefore he has a
right to reside under reg 14(1) of the 2006 regulations.
The reference to the 2006 Regulations is to the Immigration
(European Economic Area) Regulations 2006 (SI No 1003). And the reference to
the 2004 Regulations is to the Accession (Immigration and Worker Registration)
Regulations 2004 (SI No 1219).
D.
The tribunal misunderstood the 2004 Regulations
5.
The judge decided that Mr S was a worker who had retained his status on
becoming temporarily unable to work. That would give Mr S a right to reside.
The judge realised that there was a potential problem, as Mr S had not worked
in registered employment for 12 months. He tried to overcome that difficulty by
deciding that the 2004 Regulations did not apply on the ground that Mr S had
been self-employed for 12 months since 1 May 2004, when his country acceded to
the EU. The judge cited no authority for that final proposition. That is not
surprising, because it has no legal basis whatsoever. His argument does not
work for the simple reason that the 2004 Regulations do not apply to the
self-employed. As a result, the tribunal’s decision was in error of law. The
question I now have to answer is: did the tribunal come to the right decision
for the wrong reason?
E.
Mr S did not retain any right to reside as a worker
6.
Mr S registered under the Accession State Worker Registration Scheme,
but only after his employment had ended. There is an issue whether registration
in those circumstances is effective. I will assume that it was. On that basis,
he was a worker when he became unable to work. Normally, he would be entitled
to retain that status by virtue of Article 7(3)(a) of Directive 2004/38/EC and
regulation 6(2)(a) of the 2006 Regulations. Regulation 21AA of the Income
Support (General) Regulations 1987 defines person from abroad by
reference to rights to reside under the Directive rather than under the 2006
Regulations. However, regulation 4 of the 2004 Regulations provides that those
Regulations derogate from the rights under the Directive so that Mr S is only
entitled to reside in the United Kingdom under the 2006 Regulations as modified
by regulation 5. And regulation 5(3) of the 2004 Regulations provides that
‘regulation 6(2) of the 2006 Regulations shall not apply to an accession State
worker requiring registration who ceases to work.’
7.
The result of these complex provisions is this. Assuming that Mr S was a
worker by virtue of his late registration, he could not retain that status when
he was unable to work. And as he could not retain his status, he could not have
the right to reside that goes with it.
F.
Mr S did not acquire a permanent right to reside as a result of his
self-employment
8.
Mr S worked as a self-employed person from 2000 to May 2006. From 1 May
2004, he had a right to reside as a self-employed person under Article 7(1)(a)
of the Directive. That right to reside ceased when he gave up his
self-employment in May 2006. Before 1 May 2004, he did not have a right to
reside in the United Kingdom. He was present here and was allowed to be here.
But that does not mean that he had a right to reside here. He was an
asylum seeker, whose claim had not been decided. As Elias LJ explained in Miskovic
and Blazej v Secretary of State for Work and Pensions [2011] EWCA Civ 16 at
[43], asylum seekers
are lawfully present but have no
right to reside; and they are subject to such restrictions on residence as may
be imposed; they are not free to come and go as they choose. The permission to
work may be withdrawn or limited at any time.
If Mr S had had a right to reside while working in
self-employment before 1 May 2004, it could have been into account for the
purposes of acquiring a permanent right to reside. See Ziolkowski v Land Berlin (Case C-424/10), a decision of the Court of Justice of the European Union.
However, the permanent right to reside only arises after a person has resided
in accordance with the Directive. Mr S did not so reside. The result is that he
only resided in accordance with the Directive as a self-employed person for
just over two year, not for the five years that is necessary.
G.
Conclusion
9.
The tribunal’s reasoning was erroneous in law. It should not have
allowed Mr S’s appeal. I have considered whether there was any other basis on
which, given the evidence, he had a right to reside. But for the reasons I have
explained, he did not have such a right. I have, therefore, re-made the
tribunal’s decision to confirm that the Secretary of State’s decision was
correct.
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Signed on original
on 14 June 2012
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Edward Jacobs
Upper Tribunal Judge
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