Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
As the decision of the First-tier Tribunal (made on 28
November 2011 at Birmingham under reference SC024/11/10070) 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: Ms S is not entitled to income support on
her claim that was made on 13 June 2011 and refused in July 2011.
Reasons
for Decision
A.
Background
1.
Ms S is Gambian. She came to the United Kingdom in 2006 on a student
visa, which was renewed annually until it expired in November 2009. She
appealed against the decision not to renew her visa, but that appeal had not
been heard by the time with which this appeal is concerned. She has no
connection with any other EU State. She is estranged from her family in Gambia. Realistically, she can only live in the United Kingdom or Gambia.
2.
On 17 September 2009, she had a daughter by a British man, Mr B. They were
living together at the time. Mr B and their child are British. He asked Ms S
and their child to leave his home shortly after the birth and takes no part in his
daughter’s upbringing. He rarely sees her. He pays child support irregularly,
but there are no substantial arrears. Ms S’s relationship with her family has
broken down. She is the primary carer of her child and the only person who
could be.
3.
The tribunal found that Ms S had monthly income of £477, comprising:
·
£81.20 – child benefit
·
£239 – child tax credit
·
£157 – child support.
The child support figure assumed that the payments are made
on time. It was, of course, lower when payments were in arrears and higher when
arrears were cleared. She had to pay £250 a month rent, plus £55 council tax,
£25 water rates and £50 for gas and electricity. She relied on food banks and
short term loans. She had exhausted the source of those loans by the time of
the hearing, but it is not clear when that happened.
B.
Ms S’s claim for income support
4.
Ms S made a claim for income support on 13 June 2011. The Secretary of
State refused the claim in 12 July 2011. The decision-maker relied on section
115 of the Immigration and Asylum Act 1999, which provides:
115 Exclusion from benefits
(1) No person is entitled to …—
…
(e) income support, …
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;
(c) has
leave to enter or remain in the United Kingdom given as a result of a
maintenance undertaking; or
(d) has
leave to enter or remain in the United Kingdom only as a result of paragraph 17
of Schedule 4.
The reasoning was this. Ms S was Gambian and, as such, she
required leave to enter or remain in the United Kingdom. She was, therefore,
subject to immigration control and not entitled to income support.
5.
The First-tier Tribunal’s decision notice refers to regulation 21AA of
the Income Support (General) Regulations 1987. That was wrong, but the written
reasons correctly refer to section 115.
6.
As Ms S claims to have a right to reside under EU law, section 7(1) of
the Immigration Act 1988 is also relevant:
7 Persons exercising Community rights
and nationals of member States
(1) A person shall not under
the principal Act require leave to enter or remain in the United Kingdom in any
case in which he is entitled to do so by virtue of an enforceable EU right or
of any provision made under section 2(2) of the European Communities Act 1972.
C.
The First-tier Tribunal’s decision
7.
Ms S exercised her right of appeal to the First-tier Tribunal, which
allowed her appeal. The judge gave a detailed and carefully reasoned decision
that Ms S had a right to reside. The essence of her reasoning was this:
·
Ms S’s daughter has all the rights of an EU citizen.
·
She could not enjoy those rights anywhere in the EU other than
the United Kingdom.
·
In view of her age, she cannot enjoy that right without the
financial, practical and emotional support of her mother.
·
Without income support, Ms S’s continued presence in the United Kingdom was not viable.
·
Ultimately, she would have to leave the United Kingdom and take her daughter with her.
·
The Court of Justice of the European Union has decided that it is
assumed that refusing a right to reside to a parent would lead to the child
leaving the host State: Zambrano v Office national de l’emploi (ONEm) (Case
C-34/09).
8.
The judge gave the Secretary of State permission to appeal.
D.
Analysis
9.
There have been a number of developments in the caselaw, particularly of
the Court of Justice of the European Union, since this appeal was lodged. In
those circumstances, I have decided to deal with the law as it is currently
known to be without tracking the arguments and submissions that have been made
at different stages. In particular, I have applied the most recent decision of
the Court in O and S v Maahanmuuttovirasto (Cases C-356 and 357/11).
10. Realistically,
if Ms S cannot remain in the United Kingdom, she will have to return to Gambia and take her child with her. It is unlikely on the evidence that the child’s father
would allow her to live with him and unrealistic to expect Ms S to leave her
with him.
11. The
effect of O and S is that Ms S may have a right to reside under EU law
if that is necessary to ensure that her child is not denied the genuine
enjoyment of the child’s rights as an EU citizen. The tribunal did not have the
benefit of later caselaw following Zambrano, but it broadly directed
itself correctly on the law as it is now understood.
12. The
tribunal misdirected itself on Zambrano. I do not criticise the tribunal
for that, as I interpreted that case in the same way myself. It is, though, now
know that assumptions have no role to play. However, having read the tribunal’s
decision, I am not sure that it would have decided differently if it had
directed itself correctly on the law.
13. The
tribunal had to decide the appeal on the circumstances obtaining at the time of
the decision under appeal. That is the effect of section 12(8)(b) of the Social
Security Act 1998. There are different dates given for the decision in
different documents, but they are all in early-mid July 2011. Later events are
relevant, but only in so far as they are relevant to show the circumstances
obtaining at the time of the decision.
14. The
tribunal made findings of fact to show that Ms S’s ‘continued presence in the UK or anywhere else in the European Union was not viable.’ The essential mistake that the
tribunal made was to speculate about the future rather than concentrate, as
section 12(8)(b) required, on the time of the decision under appeal. It is true
that that is what the tribunal purported to do. However, its findings of fact
are not consistent with doing so. It appears that the tribunal was,
understandably, more concerned about what might happen in the future
than with what was happening at the time of the decision.
15. In
June and July 2011, Ms S was surviving. She had benefit income, which was
supplemented by child support, which (although not in substantial arrears) was
unreliable. She had further supplemented her income with short-term loans. And
she had to rely on food banks. Her circumstances were no doubt precarious. She
must have been desperately worried for herself and her child. But she was
surviving. She had not left the United Kingdom, nor was her departure imminent.
Indeed, she still had an immigration appeal outstanding. She had not sought
permission to work, although she was well qualified for work that might cover
her living costs and the costs of child care. At the time of the decision under
appeal, her daughter had not been prevented from enjoying the genuine enjoyment
of her right as an EU citizen. Quite the opposite, she was continuing to
exercise them.
16. The
tribunal was entitled to take account of subsequent events as evidence
of how precarious Ms S’s presence in this country had been in early-mid July
2011. The tribunal heard the appeal four and a half months later. It could not
avoid knowing that Ms S was still present and surviving. Her continued presence
was significant evidence that the tribunal’s findings of fact did not support
its conclusion that Ms S’s presence here was not viable. This shows up what
seems to me a flaw in the tribunal’s reasoning. It proceeded on the basis that
entitlement to income support was essential if Ms S was to remain in the United Kingdom. Subsequent events have shown that that was not correct, either later or at
the time of the decision.
E.
Disposal
17. The
tribunal made an error of law, because its findings of fact did not support its
ultimate decision. That is why I have set the decision aside. On the evidence
that was before the tribunal and on subsequent evidence that sheds light on the
circumstances obtaining at the time of the decision under appeal, there is only
one decision that the tribunal could properly have given. That is that Ms S did
not have a right to reside in June and July 2011. I have re-made the decision
to that effect. The result is to confirm the Secretary of State’s decision that
Ms S was not entitled to income support.
F.
The oral hearing request
18. The
Secretary of State has asked for an oral hearing of this appeal on the ground
that it raises issues that will be relevant to other cases. I accept that
issues may arise in other cases, but this case depends ultimately on the
findings of fact made by the First-tier Tribunal and how they apply in the
light of the EU caselaw, especially the recent decision in O and S. It
would not be right to delay this appeal further and put the burden on Ms S and
her representatives in order to resolve issues that do not arise. That is why I
have dealt with the appeal on the papers. The Upper Tribunal has a large number
of cases involving right to reside and the Secretary of State may ask for an
oral hearing in any of those cases that raise issues of general significance.
|
Signed on original
on 7 January 2013
|
Edward Jacobs
Upper Tribunal Judge
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