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Secretary of State for Work and Pensions [2009] UKUT 146 (AAC) (31 July 2009)
Residence and presence conditions
right to reside

IN THE UPPER TRIBUNAL Appeal No. CIS/2054/2008

ADMINISTRATIVE APPEALS CHAMBER CIS/2946/2008

Before: UPPER TRIBUNAL JUDGE ROWLAND

Attendances:

For the Appellant: Ms Deok Joo Rhee of counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions

The Respondents neither appeared nor were represented.

Decisions:

In CIS/2054/2008, it is decided that the claimant did not have a right of residence merely by virtue of the residence permit issued to her on 7 or 15 February 2006 at any time material to the claim for income support she made on 12 April 2007, but consideration of other issues arising in the appeal is deferred and I give the following Directions –

(a) the claimant must submit, within one month of this decision being sent to her representative, a further written submission and any written evidence in support of her argument that she had a right of residence by virtue of being on vocational training at the material time and should in particular deal with the issue raised by the Secretary of State in Ms Arnold's letter dated 16 February 2009 as to whether the claimant was "involuntarily unemployed";

(b) the Secretary of State must submit a written submission in response within one month of being sent the claimant's further submission;

(c) both parties must state in their submissions whether they want an oral hearing on the issue whether the claimant had a right of residence by virtue of being on vocational training at the material time.

In CIS/2946/2008, the Secretary of State's appeal is allowed. The decision of the appeal tribunal dated 12 March 2008 is set aside and there is substituted a decision to the effect that the claimant is not entitled to income support on her claim made on 1 June 2007.

REASONS FOR DECISION

1. Although neither claimant was represented at the hearing before me, I have been greatly assisted by written submissions by Mr Malcolm Crawford, a welfare rights officer of Derby Advice (Derby City Council) who acknowledges the assistance of the Child Poverty Action Group, for the first claimant, and Mr Brian Hitchcock, a solicitor of Leicester Community Legal Action Centre, for the second claimant. I am grateful to them and to Ms Rhee, who has appeared for the Secretary of State, for the clarity of their submissions.
2. In CIS/185/2008, I held that a residence permit issued under regulation 15 of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326) by the Secretary of State for the Home Department was what it purported to be and conferred on the person to whom it had been issued a right of residence in the United Kingdom that was effective until the permit expired or was revoked. The present cases are concerned with the effect of such permits since the 2000 Regulations were replaced by the Immigration (European Economic Area) Regulations 2006 (S.I. 2006/1003) on 30 April 2006.
3. The Secretary of State has appealed against my decision in CIS/185/2008, with my leave. He asked that the hearing of the present appeals be postponed to await the Court of Appeal's decision but I refused the postponement because the Court of Appeal's decision will be determinative only if it allows the Secretary of State's appeal, which I do not regard as inevitable. The second claimant asked for a postponement in order to obtain funding from the Legal Services Commission. I refused that request too, because the application for funding had not been made and I was told that it would probably take the Legal Services Commission some months to determine it.
4. The first claimant is a Lithuanian national who came to the United Kingdom on six-month visas in 2001 and 2002 and again, permanently, in May 2003. On what basis she was admitted in 2003, I am not sure, but it has not been suggested that she had unconditional leave to enter. She was still in the United Kingdom when Lithuania acceded to the European Union on 30 April 2004. She obtained work and, having been employed in registered employment under the Accession (Immigration and Worker Registration) Regulations 2004 (S.I. 2004/1219) for more than a year, ceased to be an "Accession State worker requiring registration" and so acquired the same rights as most citizens of the European Union who are workers. On either 7 or 15 February 2006 – the permit itself says it was issued on 15 February but the covering letter sent to the claimant with the permit is dated 7 February – she was issued with a residence permit under regulation 15 of the 2000 Regulations, valid until 7 February 2011. At that time, she was still employed, although she may have been on maternity leave as her son was born two months later. Her employment ended on 27 July 2006. It appears that she separated from her partner in January 2007. On 12 April 2007, she claimed income support as a single parent. The claim was disallowed on 9 July 2007, on the ground that the claimant had no right of residence in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland and so was a "person from abroad" with an applicable amount of nil (see regulations 21 and 21AA of the Income Support (General) Regulations 1987 (S.I. 1987/1967)). The claimant appealed. In a carefully reasoned decision dated 20 November 2007, the tribunal allowed the appeal on the ground that, in the light of Baumbast and R v. Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091, the claimant had a right of residence in the United Kingdom while her daughter, then aged 9, remained in school here. In taking this approach, the tribunal followed the decision of Mr Recorder Hochhauser QC, sitting at Clerkenwell county court on 21 August 2007, in Ibrahim v London Borough of Harrow. The Secretary of State now appeals with the leave of a salaried tribunal chairman.
5. The second claimant is a Polish national who came to the United Kingdom on 3 March 2005. She obtained work from 20 March 2005. The precise date on which that employment ended in early 2006 has been the subject of dispute but the claimant obtained further employment from 7 March 2006 which ended on 4 November 2006 when the claimant claimed maternity allowance. On 3 October 2006, while she was still working, she was issued with a residence permit in the form in which such permits had been issued under the 2000 Regulations. Her daughter was born on 4 December 2006 and her maternity allowance expired on 11 May 2007. On 1 June 2007, she claimed income support as a single parent. On 19 June 2007, the claim was disallowed on the ground that the claimant was an Accession State worker requiring registration under the 2004 Regulations because she had not been in continuous employment for 12 months and that she therefore had no right of residence. Although gaps totalling up to 30 days between periods of employment are allowed, the Secretary of State took the view that there had been a gap of two months between the first and second periods of employment. The claimant appealed. The tribunal allowed the appeal on the ground that the claimant had ceased to be an Accession State worker requiring registration and that she had not lost her status as a worker at the time of her claim for income support and therefore had a right of residence as a worker under the 2006 Regulations. The Secretary of State now appeals with the leave of a salaried tribunal chairman.
6. As I have indicated, the common issue in these appeals is whether or not the residence permits issued to the claimants in these cases conferred rights of residence on the claimants at the material time. What distinguishes these cases from CIS/185/2008 is that here the question is what effect the residence permits had at dates after the 2006 Regulations had replaced the 2000 Regulations. Whereas regulation 15 of the 2000 Regulations made provision for the issuing of a residence permit, regulation 16 of the 2006 Regulations makes provision for the issuing of a registration certificate and paragraph 2(2) of Schedule 4 to the 2006 regulations has the effect that, with an immaterial exception, "a residence permit issued under the 2000 Regulations shall, after 29th April 2006, be treated as if it were a registration certificate issued under these Regulations". All the parties submit that the change of language makes no difference but, of course, the Secretary of State submits that CIS/185/2008 was wrongly decided in respect of the effect of a residence permit whereas the claimants submit that it was rightly decided.
7. The Court of Appeal will tell us in due course whether CIS/185/2008 was rightly decided but Ms Rhee has not persuaded me to resile from what I said in that decision. She relied on a number of authorities but, in my judgement, only CIS/865/2008 supports her argument and I agree with Mr Crawford's submission that that decision is not a strong authority. In paragraph 16 of that decision, the relevant issue was dealt with very briefly because the Commissioner simply relied upon his analysis in CPC/3588/2006, which he had decided some months earlier. However, CPC/3588/2006, like AP and FP (India) v Secretary of State for the Home Department [2007] UKAIT 00048 and AK (Sri Lanka) v Secretary of State for the Home Department [2007] UKAIT 00074 upon which Ms Rhee also relied, was concerned with the inchoate right of an extended family member who had not been issued with a residence permit and, in my respectful view, it throws no light on the issue that arose in CIS/865/2008 and arises in the present cases where permits had been issued to people who had rights of residence as workers at the dates the permits were issued. Similarly, I agree with Mr Crawford that it does not follow from the fact that the European Court of Justice held in Royer (Case 48/75) [1976] ECR 497 and Sagulo (Case 8/77) [1977] E.C.R. 1495 that a residence permit was merely declaratory and that the lack of one did not affect a person's right of residence under the EEC Treaty that the possession of a residence permit does not confer a right of residence. It is not in doubt that the Secretary of State for the Home Department could revoke a residence permit when a claimant ceased to qualify for the issue of one. What is in issue is the effect of that not having been done. Diatta v Land Berlin (Case 267/83) [1985] ECR 567, the last decision upon which Ms Rhee relied, concerned a non-cohabiting spouse's right to the renewal of a residence permit that had expired. It may implicit in the Court's judgment that a former spouse who had been issued with a residence permit could be expelled from a Member State following divorce but there is nothing to suggest that it would not have been necessary to revoke the residence permit as part of that process.
8. I accept that the 2000 Regulations were made for the purpose of implementing directives then in force but the mere discretionary power to revoke a residence permit was entirely consistent with Directive 68/360/EEC which required a permit to be valid for five years subject to it being liable to withdrawal if the holder ceased to have a right of residence. Nothing in the Directive suggests to me that such a permit lapsed automatically upon the holder ceasing to qualify for the issue of such a permit.
9. Ms Rhee also submits that the 2006 Regulations do not create a domestic law right of residence and that that is material to these appeals. I am not convinced by this distinction between Community law rights and domestic law rights because it seems to me that the whole point of Community directives is that they require Member States to incorporate Community law rights into domestic law, but I accept that there may be a question as to the extent to which regulations made only under section 2(2) of the European Communities Act 1972 may create rights in addition to those required by Community law. However, the distinction is not important in these cases because regulation 21AA(2) of the 1987 Regulations applies to all claimants, whether citizens of the European Union or not, and therefore for the purposes of a claim for income support it does not matter whether a right of residence arises under Community law or purely under domestic law or both. In this context, the term "right to reside" must include not only the Community law concept of a right of residence but also the right of abode possessed by United Kingdom citizens by virtue of section 2 of the Immigration Act 1971 and leave to enter or remain granted under section 3 of that Act (although, of course, those with conditional leave to enter or remain may be excluded from entitlement to income support for reasons explained below). No question arises in these appeals as to whether the claimants had a right of residence under Article 16 of Directive 2004/38/EEC because, on any view, the claimants had not resided for five years in the United Kingdom. Only paragraphs 10 to 14 of CIS/185/2008 have any bearing on these appeals.
10. I shall therefore decide the present cases on the basis that, as I decided in those paragraphs, a residence permit issued by the Secretary of State for the Home Department under regulation 15 of the 2000 Regulations did confer a right of residence that was effective until the permit expired or was revoked. I indicated as much during the hearing and Ms Rhee therefore advanced an alternative submission to the effect that a registration certificate issued under regulation 16 of the 2006 Regulations could, contrary to her primary submission, be distinguished from a residence permit issued under regulation 15 of the 2000 Regulations.
11. The most obvious reason for suspecting there might be a distinction between a residence permit and a registration certificate is that, as a matter of ordinary language, the two phrases mean different things. The difference in language reflects a difference in the language of the Community Directives to which the Regulations give effect. Directive 68/360/EEC required that a residence permit (in French, une carte de séjour, which was a document that recognised far more than a mere right to be present in France) be issued in certain circumstances "as proof of the right of residence" (le droit de séjour est constaté …). That Directive was given effect in the United Kingdom by regulations 15 to 20 of the 2000 Regulations and the definition of "residence permit" in regulation 2(1). In contrast, Article 8 of Directive 2004/38/EC, which replaced those earlier directives from 30 April 2004, makes provision for a registration certificate (une attestation d'enregistrement). The 2006 Regulations were enacted to give effect to Directive 2004/38/EC and the language of regulation 16 undoubtedly reflects the language of Article 8. However, Article 8 did not actually require a provision akin to regulation 16 to be made.
12. Article 8 (1) and (2) provides –

"(1) Without prejudice to Article 5(5), for periods of residence longer than three months, the host Member State may require Union citizens to register with the relevant authorities.

(2) The deadline for registration may not be less than three months from the date of arrival. A registration certificate shall be issued immediately, stating the name and address of the person registering and the date of the registration. Failure to comply with the registration requirement may render the person concerned liable to proportionate and non-discriminatory sanctions."

Paragraphs (3) to (5) provide that, for a registration certificate to be issued, the Member State may only require certain evidence sufficient to show that the applicant is a Union citizen who has a right of residence under Article 7(1).

13. The most important distinction between Article 8 of Directive 2004/38/EC and Directive 68/360/EEC, which was among the Directives that it replaced, is that, under the new Directive, there is no requirement to have a registration scheme and there is no requirement placed on a Member State to issue registration certificates if there is no scheme. Nor is anything said in Directive 2004/38/EC as to the effect of a registration certificate or as to the period for which it is valid. However, it may be inferred from paragraph (2) of Article 8 that the certificate operates, firstly, as evidence that the holder has complied with a requirement to register imposed by a Member State in conformity with paragraph (1) and is therefore not liable to the sanctions permitted under paragraph (2) and, secondly, as evidence that, at the date of issue, the applicant was a citizen of the European Union with a right of residence under Article 7(1). On that basis, there is no reason to limit the period of a registration certificate's validity. The passing of time cannot logically affect its value as evidence of the position at the date of issue. Thus, there is nothing to suggest that a registration certificate has the same effect as a residence permit which, it could be inferred from the earlier Directives, had continuing effect until it expired or was withdrawn because otherwise it would not perform the designated function of proving a right of residence.
14. However, Mr Crawford and Mr Hitchcock both submit that the effect of the new Directive cannot be less favourable than that of the Directives that it replaced and for that reason a registration certificate must be treated as having the same effect as a residence permit. I find it difficult to see how the new Directive can be said to require a registration certificate to have the same effect as a residence permit under the previous Directives when there is no obligation under Article 8 on a Member State to have a registration scheme at all and therefore no obligation to issue registration certificates. Nevertheless, they refer to Metock v Minister of Justice, Equality and Law Reform (Case C-127/08), where the European Court of Justice said at paragraph 59 –

"As is apparent from recital 3 in the preamble to Directive 2004/38, it aims in particular to 'strengthen the right of free movement and residence of all Union citizens', so that Union citizens cannot derive less rights from that directive than from the instruments of secondary legislation which it amends or repeals."

Ms Rhee submitted that that principle only holds good where there is no countervailing policy reason for introducing a restriction on rights. It is unnecessary for me to consider the issue in such broad terms because I am satisfied that Metock can be distinguished on the ground that the right that is in issue in the present case is essentially procedural, whereas in Metock the Court was concerned with substantive rights. All that I decided in paragraphs 10 to 14 of CIS/185/2008 was that a person who had been issued with a residence permit but who had ceased to qualify for such a permit retained a right of residence until the permit was revoked. However, such a person had no right to expect that the permit would not be revoked by the Secretary of State for the Home Department upon the person ceasing to qualify for a permit. Thus, no substantive right is removed if a right of residence now comes to an end automatically upon a person ceasing to qualify under what is now Article 7(1). Article 8 enables Member States to reduce bureaucracy.

15. It is for the same reason that I do not accept the submission of Mr Crawford and Mr Hitchcock that, if a registration certificate does not have the same effect as a residence permit, paragraph 2(2) of Schedule 4 to the 2006 Regulations (which is the provision that converts a residence permit into a registration certificate) breaches the presumption against retrospectivity or is incompatible with Community law. That transitional provision operates only prospectively and the change it effects is essentially procedural.
16. Nor is there anything strange in the Directive requiring, under Articles 9 to 11, a residence card – a more literal translation of "une carte de séjour" than "residence permit" and a document that appears to have the same effect as a residence permit so that, if CIS/185/2008 is rightly decided, it is effective until it expires or is revoked – to be issued to family members who are not nationals of a Member State, whereas, at best, a European Union citizen may be entitled to a registration certificate. The reason for that is that a European Union citizen may prove a right of entry (or presence, as opposed to residence) under Article 5 through the production of a valid identity card or passport and cannot be required to obtain a visa (see Article 5(1)). A person who is not a national of a Member State needs evidence of a right of residence as a family member in order to be able to show a right of entry without a visa under Community law, and such evidence is provided through the medium of a residence card (see Article 5(2)).
17. For all those reasons, I am satisfied that Community law does not require a registration certificate to have the same effect as a residence permit. However, Mr Crawford and Mr Hitchcock also contend that the 2006 Regulations give a registration certificate the same effect as a residence permit, even if that is not required by Community law. If Ms Rhee is right as to the effect of a registration certificate, there are certainly some very odd features in the 2006 Regulations.
18. It is not even obvious to me why, if Ms Rhee is right, the Secretary of State for the Home Department has thought it necessary to make provision for registration certificates at all. The United Kingdom appears not to have taken advantage of Article 8(1) of Directive 2004/38/EC since the 2006 Regulations do not make provision for a compulsory system of registration of European Union citizens residing for more than three months in accordance with Community rights and, indeed, unless the term "registration certificate" is taken to imply registration by those who apply for a certificate, they make no provision for a system of registration of any sort. Despite this, regulation 16 incorporates Article 8(2) to (5) into domestic law. The only effect of doing so, as far as I can see, is to enable an applicant to obtain "proof of the holder's right of residence in the United Kingdom as at the date of issue", which is what the definition of "registration certificate" in regulation 2(1) says the effect is. Such proof is of virtually no practical value to the holder in relation to a social security claim because it begs the question whether the grounds upon which the registration certificate was issued still subsist at the date material to the claim for benefit. Whether it has any value in other fields I do not know but I would have thought the same problem would generally arise.
19. If the effect of a registration certificate is so limited, it is very odd that regulation 20(1) and (2) make provision for the Secretary of State to revoke a registration certificate on the grounds of public policy, public security or public health or if the holder of the certificate has ceased to have a right to reside under the Regulations. Regulation 26 even provides for a right of appeal against a decision to revoke a registration certificate (see the definition of "EEA decision" in regulation 2(1)). It is easy to see why those provisions apply to residence cards but it is very difficult to see why they should be applied to a registration certificate if all such a certificate does is prove that the holder had a right of residence when it was issued. Otherwise, the implication is that the draftsman considered that a registration certificate conferred, or was evidence of, a current right of residence. As Mr Hitchcock has pointed out, that appears to be the understanding of the UK Border Agency, whose website says –

"A registration certificate is a document issued to EEA nationals that confirms that person's right of residence under European law."

(http://www.ukba.homeoffice.gov.uk/eucitizens/applyingundereuropeanlaw/ (accessed today))

20. Another oddity is that the definition of "EEA decision" in regulation 2(1) refers to entitlement to have a registration certificate "renewed", as does regulation 20(1) but not regulation 20(2). Given that the validity of a registration certificate, unlike the validity of a residence card, is not limited to five years or some other period, I have some difficulty in seeing how the question of renewal can arise.
21. In any event, the very existence of regulation 16 and the references to registration certificates in regulation 20 might be thought to suggest that the draftsman of the 2006 Regulations intended a registration certificate to be proof of a right of residence until such time as it was revoked. However, I do not see how one can imply from those provisions an intention that the right of residence recognised by a registration certificate should continue until the certificate is revoked when that is not only not the natural effect of the language of regulation 16 but, more importantly, it would also flatly contradict the definition of "registration certificate" in regulation 2(1). Moreover, the 2006 Regulations are made for the purpose of implementing Community law and use the language of the Directive and, for the reasons I have given, Community law does not require a registration certificate to have the effect for which the claimants contend. The desirability of making sense of regulation 20 must give way to the need to give effect to the clear and obviously deliberate words of the definition.
22. Mr Crawford finally makes reference to section 7 of the Immigration Act 1988 which provides that a citizen of the Union does not require leave to enter or remain under the Immigration Act 1971 if "entitled to do so by virtue of an enforceable Community right or [the 2006 Regulations]" and paragraph 1 of Schedule 2 to the 2006 Regulations which provides –

"(1) In accordance with section 7 of the Immigration Act 1988, a person who is admitted to or acquires a right to reside in the United Kingdom under these Regulations shall not require leave to remain in the United Kingdom under the 1971 Act during any period in which he has a right to reside under these Regulations but such a person shall require leave to remain under the 1971 Act during any period in which he does not have such a right.

(2) Where a person has leave to enter or remain under the 1971 Act which is subject to conditions and that person also has a right to reside under these Regulations, those conditions shall not have effect for as long as the person has that right to reside."

He is correct in saying that any citizen of the Union who does not require leave to remain must have a right of residence but that does not assist his client because he has not shown that, as a matter of law, she did not require leave to remain. The plain effect of paragraph 1(1) of Schedule 2 is that one looks first to see whether or not the person has a right of residence under the Regulations and, if not, he or she requires leave to remain.

23. It can certainly be said that the rights that citizens of the European Union have by virtue of Community law have been very untidily bolted onto the domestic immigration scheme. In the ordinary domestic scheme created by the 1971 Act, the distinction between leave to enter and leave to remain turns on where the person is when the decision is made and it has little, if any, other significance. More importantly, unconditional leave to enter or remain confers the same advantages that in other countries might flow from a right of residence: a right to join the labour market and a right to take advantage of social assistance schemes. The term "right of residence" is not used in the 1971 Act but the distinction that may exist elsewhere between a mere right of presence and a right of residence effectively exists because section 3(1)(c) permits the imposition of conditions on leave to enter or remain so as to restrict employment or to require a person "to maintain and accommodate himself, and any dependents of his, without recourse to public funds". A person who is not entitled to have recourse to public funds by virtue of such a condition is excluded from entitlement to certain non-contributory social security benefits and social assistance benefits, including income support, by virtue of section 115 of the Immigration and Asylum Act 1999. The 2006 Regulations, however, use the terminology of Community law. Under the 2006 Regulations, a citizen of the Union has a right to be admitted to the United Kingdom under regulation 11 (giving effect to Article 5 of Directive 2004/38/EC) and has an initial right of residence for three months under regulation 13 (giving effect to Article 6). Thereafter, a person has a right of residence under regulation 14 only while a qualified person, until he or she acquires a right of permanent residence under regulation 15. In the light of paragraph 1 of Schedule 2, it is clear is that, between the initial three months and obtaining a right of permanent residence, a person requires leave to remain under the 1971 Act whenever he or she is not a qualified person under the 2006 Regulations.
24. As far as I am aware, the immigration authorities make no attempt to enforce that provision. Indeed, I suspect they would be horrified if every citizen of the European Union present in the United Kingdom without a right of residence applied for leave to remain. Nor has any attempt been made to assimilate the Community rights with the domestic rights so that a person a person seeking leave to remain after a right of residence comes to an end might be treated as seeking a variation of limited leave to remain and be treated as having such leave until the application is determined provided the application is made before the right of residence expires (see section 3C of the 1971 Act). These points give rise to some unsatisfactory results.
25. There have long been large numbers of European Union citizens in the United Kingdom liable to be removed but not in fact removed. At one time, they were potentially entitled to benefits such as income support and their precise immigration status was unimportant (see Chief Adjudication Officer v Wolke [1997] 1 WLR 1640 (also reported sub nom. Remilien v Secretary of State for Social Security as R(IS) 13/98)). However, since 1 May 2004, a person's right to income support has been dependent upon him or her having a right of residence in the United Kingdom (or the Channel Islands, the Isle of Man or the Republic of Ireland) and so immigration status has become important. The problem is that, as I have already pointed out in R(IS) 6/08, the immigration authorities are primarily concerned with whether a person is lawfully present in the United Kingdom rather than whether or not he or she has a right of residence. For this reason, it appears that a person is not only unlikely to be granted leave to enter under the 1971 Act when he or she has a right to be admitted with an initial right of residence under the 2006 Regulations but also a person is unlikely to be granted leave to remain if already present in the United Kingdom with a right of residence under the 2006 Regulations, because such leave is not required. A registration certificate is likely to be issued instead. However, if he or she ceases to have a right of residence and then wishes to claim income support, the question whether he or she may have unconditional leave to remain becomes immediately important because the registration certificate does not prove a current right of residence. Obtaining an immediate decision on an application for leave to remain is not possible, but it is obvious that there must be many citizens of the European Union who could expect to obtain unconditional leave to remain because their circumstances are the same as those of citizens of states outside the European Economic Area and Switzerland who would be given such leave. Citizens of states outside the European Economic Area and Switzerland automatically have the question whether they should be granted leave to enter or remain, and, if so, whether a condition of not having recourse to public funds should be attached to the leave, determined when they arrive or apply for a variation of limited leave. There is a risk that some citizens of the European Union who are admitted under regulation 11 of the 2006 Regulations and who subsequently lose their rights of residence are placed at a relative disadvantage when it comes to claiming benefits because leave to remain granted after a claim for benefits has been made will not be backdated.
26. However, I do not consider that any of these matters assists the claimants in their arguments as to the effect of a registration certificate. First, I doubt that either of them could have expected unconditional leave to remain. More importantly, it does not follow from the fact that a person with a right of residence does not require leave to remain that an immigration officer is prohibited from considering an application for leave to remain if one is made by a person with a right of residence. The difficulties to which I have drawn attention substantially arise from the way the legislation is operated rather than from the legislation itself, although the legislation could, in my view, be improved. For the reasons I have given above, I am satisfied that a registration certificate issued under the 2006 Regulations does not have the same effect as a residence permit issued under the 2000 Regulations.
27. The first claimant's residence permit was originally valid as such but it had become a registration certificate through the operation of paragraph 2(2) of Schedule 4 to the 2006 Regulations by the time she claimed income support. The UK Border Agency's website, which may reflect Ms Rhee's primary submission that there is no practical difference between a residence permit and a registration certificate, may explain how the second claimant came to be issued with a residence permit after the 2006 Regulations had replaced the 2000 Regulations. However, there was no power to issue such a permit once the 2000 Regulations were revoked and I do not consider it can have effect as a residence permit, particularly having regard to paragraph 2(2) of Schedule 4 to the 2006 Regulations and the fact that the Secretary of State presumably ought to have issued a registration certificate. It did cross my mind to treat the residence permit as a grant of indefinite leave to remain under the 1971 Act but there is no evidence that the document was issued by an immigration officer rather than the Secretary of State and an immigration officer would probably have been wrong to grant such leave given the claimant's circumstances. Moreover, as Ms Rhee pointed out, doc 15 appears to be the covering letter that accompanied the document and it describes the document as a registration certificate. (The discrepancy as to dates is the same as in the first claimant's case and the letter appears more likely to have been referring to the purported residence permit than to the Accession State Worker Registration Scheme registration certificate that had been issued six months earlier.) It also seems probable that nothing was inserted as the date of expiry not because indefinite leave was being granted but because the person issuing the document knew that a registration certificate under the 2006 Regulations was valid indefinitely and so did not expire. In those circumstances, the second claimant's residence permit must be treated as the registration certificate it should have been. That places her in the same position as the first claimant.
28. I am therefore satisfied that neither claimant had a right of residence at the material time as a result of a residence permit having been issued and not revoked. In each case, the residence permit was, at the material time, a mere registration certificate showing only that the claimant had had a right of residence when it was issued. I turn, then, to the other issues arising on these appeals.
29. In the first claimant's case, the Secretary of State's ground of appeal is that the tribunal erred in finding the claimant to have a right of residence under the rulings in Baumbast, because her daughter was in school. The parties are agreed that the determination of that issue should be deferred until the European Court of Justice has answered questions referred by the Court of Appeal in London Borough of Harrow v Ibrahim [2008] EWCA Civ 386 (on appeal from the county court decision followed by the tribunal) and in Teixeira v London Borough of Lambeth [2008] EWCA Civ 1088. However, the parties have also expressed their agreement that I should meanwhile remit to the First-tier Tribunal the question whether the claimant had a right of residence at the material time on the basis of having been on vocational training (see regulation 6(2)(c) or, I would add, (d) of the 2006 Regulations). The difficulty with that suggestion is that I have no power to remit the case to the First-tier Tribunal unless I first set aside the decision of the last tribunal which, in the absence of an error of law on the part of the tribunal, I cannot do. The tribunal can hardly be said to have erred in not considering the vocational training point if it was unnecessary for it to do so because the claimant had a right of residence on other grounds. However, I am quite prepared to hear further submissions on the vocational training point myself and, if necessary, hold another oral hearing, because if this point were to be decided in the claimant's favour, the Secretary of State's appeal could be withdrawn or dismissed without it being necessary to wait for the European Court of Justice's decisions in the Ibrahim and Teixeira. Accordingly, I give the Directions set out above.
30. In the second claimant's case, the Secretary of State has challenged both the tribunal's finding that the claimant was not an Accession State worker requiring registration and its finding that she remained a worker at the date of her claim for income support. I have some doubt about the first of those challenges but Mr Hitchcock concedes that the Secretary of State's second ground of appeal must succeed. I agree. The tribunal found that the claimant was still a worker essentially because it accepted that she was only temporarily absent from the labour market. In this context, such a temporary absence, other than on the ground of temporary incapacity due to illness or accident or of involuntary unemployment, was sufficient to cause her to cease, albeit temporarily, to be a worker with a right of residence. The tribunal's decision must be set aside. It is unnecessary for me to determine whether the claimant had ceased to be an Accession State worker requiring registration because, even if she had, I have not been persuaded that she retained a right of residence at the time of her claim for income support merely by virtue of holding a residence permit that must be treated as a registration certificate. There is no other ground upon which she can claim to have had a right of residence. I therefore substitute for the tribunal's decision a decision to the effect that the claimant was not entitled to income support because she was a "person from abroad" with an applicable amount of nil.

MARK ROWLAND

27 February 2009