Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CPC/451/2013

ADMINISTRATIVE APPEALS CHAMBER

 

BEFORE UPPER TRIBUNAL JUDGE WARD

 

 

DECISION

 

The Secretary of State’s appeal is allowed.  The decision of the First-tier Tribunal sitting at Bradford on 17 October 2012 under reference SC240/12/03002 involved the making of an error of law and is set aside.  Acting under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I substitute the decision which the tribunal ought to have given as follows:

 

The claimant’s appeal against the Secretary of State’s decision dated 16 May 2012 refusing state pension credit on her telephone claim made on 23 March 2012 is dismissed. 

 

REASONS FOR DECISION

 

1. The claimant, who was born in 1947, is a Polish national.  The First‑tier Tribunal found that she “is 64 years old.  She has lived for most of her life with her brother … She has never married, went to a special school for mentally disabled children in Poland and has never worked.  She came to the hearing but took no part in the proceedings and appeared to my untrained eyes to have a degree of learning difficulties.  This was confirmed by her brother …  .”

 

2. Her brother has the right of permanent residence in the UK.  Before he came to the UK in 2004 he supported the claimant in Poland.  Thereafter she was looked after by her sister in Poland while her brother continued to send money to Poland to continue to support her financially.  She came to the UK in April 2012.  At the time of her claim for state pension credit she lived with her brother and sister-in-law in the UK and did not pay rent or other expenses.  She had no assets or income.  By section 1(2) of the State Pension Credit Act 2002 and regulation 2 of the State Pension Credit Regulations 2002//1792 her claim could not succeed unless she had a qualifying right to reside.

 

3. The First‑tier Tribunal found that the claimant was an “extended family member” of her brother within the meaning of regulation 8 of the Immigration (EEA) Regulations 2006/1003 (“the 2006 Regulations”) and, as it somewhat ambiguously went on, “she was dependent on [her brother] in Poland”.  On that basis the tribunal found in her favour but by the time the tribunal’s statement of reasons was written the judge recognised that he might have erred by overlooking the requirements of “regulation 7(4)” of the 2006 Regulations: regulation 7(3) appears to have been intended and I return to that provision below.  The Secretary of State was granted permission to appeal and the Upper Tribunal put the claimant in contact with a firm of solicitors through the Civil Legal Advice scheme.

 

4. The relevant EU law is to be found in Directive 2004/38/EEC.  Recital (6) provides a background which it is not necessary to set out here.  There is then a definition of family member in Article 2(2), which, however, does not extend to siblings.

 

5. Article 3 provides:

 

“1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

 

2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b) […]

 

The host Member State shall undertake an extensive examination of the   personal circumstances and shall justify any denial of entry or residence to these people.” 

 

6. Article 8 creates a mechanism of registration certificates.  In relation to family members Article 8(5) provides:

 

“For the registration certificate to be issued to family members of Union citizens, who are themselves Union citizens, Member States may require the following documents to be presented:

(a) a valid identity card or passport;

(b) a document attesting to the existence of a family relationship […];

(c) where appropriate, the registration certificate of the Union citizen whom they are accompanying or joining;

(d) […];

(e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictly require the personal care of the family member by the Union citizen;

(f) […]”

 

7. In the United Kingdom these provisions are given effect by the 2006 Regulations.  There is a definition of “family member” in regulation 7:

 

“(1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person—

(a) his spouse or his civil partner;

(b) direct descendants of his, his spouse or his civil partner who are—

(i) under 21; or

(ii) dependants of his, his spouse or his civil partner;

(c) dependent direct relatives in his ascending line or that of his spouse or his civil partner;

(d) a person who is to be treated as the family member of that other person under paragraph (3).

 

(2) […]

 

(3) Subject to paragraph (4), a person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as the family member of the relevant EEA national for as long as he continues to satisfy the conditions in regulation 8(2), (3), (4) or (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked.

 

(4) [Not material]”

 

8. There is a definition of “extended family member” in regulation 8 (as it stood at the material time):

 

“(1) In these Regulations “extended family member” means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).

 

(2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and—

(a) the person is residing in a country other than the United Kingdom in which the EEA national also resides and is dependent upon the EEA national or is a member of his household;

(b) the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or

(c) the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.

 

(3) – (5) [not material]

 

(6) In these Regulations “relevant EEA national” means, in relation to an extended family member, the EEA national who is or whose spouse or civil partner is the relative of the extended family member for the purpose of paragraph (2), (3) or (4) or the EEA national who is the partner of the extended family member for the purpose of paragraph (5).”

 

9. The issue of a registration certificate is dealt with in paragraphs (5)-(8) of regulation 16 which, so far as relevant, provide (again, as they stood at the material time):

 

“(5) The Secretary of State may issue a registration certificate to an extended family member not falling within regulation 7(3) who is an EEA national on application if—

(a) the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under regulation 15; and

(b) in all the circumstances it appears to the Secretary of State appropriate to issue the registration certificate.

 

(6) Where the Secretary of State receives an application under paragraph (5) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security.

 

(7) A registration certificate issued under this regulation shall state the name and address of the person registering and the date of registration and shall be issued free of charge.

 

(8) But this regulation is subject to regulations 7A(6) and 20(1).”

 

The provisos in paragraph (8) are not material.

 

10. EEA family permits and residence cards were not material to the circumstances of this case.  However, a registration certificate potentially was and the claimant did not have one.  The effect of regulation 7(3) as a matter of domestic law is that the lack of a registration certificate would prevent the claimant as “an extended family member” from being treated as the “family member” of her brother.  That would mean that she did not have a right to reside on that basis.  The question is whether there is anything in EU Law which modified this position.

 

11. In C-83/11 Secretary of State for the Home Department v Rahman and Others the Court held at (26):  

“In the light of the foregoing, the answer to the first and the second question referred is that, on a proper construction of Article 3(2) of Directive 2004/38:

– the Member States are not required to grant every application for entry or residence submitted by family members of a Union citizen who do not fall under the definition in Article 2(2) of that directive, even if they show, in accordance with Article 10(2) thereof, that they are dependants of that citizen;

– it is, however, incumbent upon the Member States to ensure that their legislation contains criteria which enable those persons to obtain a decision on their application for entry and residence that is founded on an extensive examination of their personal circumstances and, in the event of refusal, is justified by reasons;

– the Member States have a wide discretion when selecting those criteria, but the criteria must be consistent with the normal meaning of the term ‘facilitate’ and of the words relating to dependence used in Article 3(2) and must not deprive that provision of its effectiveness; and

– every applicant is entitled to a judicial review of whether the national legislation and its application satisfy those conditions.”

 

12. Whilst it is true that in Rahman the family members, unlike the present claimant, were not themselves Union Citizens, nothing in the relevant provisions appears to make this a distinction of any substance (a view shared by Advocate General Bot at [76] of the opinion in Rahman.)  At first sight, the provisions of regulations 7(3), 8 and 16(5) to (7) appear in conformity with the Directive.

 

13. The claimant’s representatives were given an opportunity to make submissions, which they did.  Their gist was that Article 3(2) requires national legislation to make provision in domestic law to facilitate the admission of extended family members but that national legislation in the UK imposes an unreasonable burden on EEA nationals who are seeking the status of “extended family members”.  They submit that there is a distinction between applying the requirements of regulation 7(3) to those who are non‑EEA nationals and those who are.  They suggest that non‑EEA nationals would need to apply for a family permit to demonstrate their rights to be in the United Kingdom, without which they would not be legally present in the United Kingdom.  Asylum seekers would need a registration card to confirm their identify and allow access to financial support.  So, it is said, in both these situations the requirement under regulation 7(3) is in line with what such individuals would need to do anyway in order to demonstrate that they had a status allowing them to be in the United Kingdom.

 

14. They argue that by contrast, for an EEA national a registration certificate does not have the material benefits which a registration card or family permit has in the two situations previously discussed.  It is said that a EEA national is not required to have a registration certificate to enter the United Kingdom, or to confirm their entitlement to be present or resident in the United Kingdom; it does not facilitate access to any resources by being in possession of one and the only real benefit would be to confirm the person’s status in the United Kingdom by way of making it easier to demonstrate that they have a right to reside. 

 

15. I do not accept this submission.  It is true that an EEA national must be admitted on production of a valid national identity card or passport.  But there is a difference between the UK’s obligation to admit an EEA national and an entitlement (or right) to reside:  see Abdirahman v Secretary of State for Work and Pensions [2007] EWCA Civ 657; R(IS) 8/07 at [19].  For present purposes, it is the latter with which we need to be concerned.  In such a case, the issue of the registration certificate demonstrates that the process has been gone through of conducting the “extensive examination of the personal circumstances of the applicant”, required by Article 3(2)(b) of the Directive and regulation 16(6) of the 2006 Regulations, and that the Secretary of State has exercised the discretion which regulation 15(5)(b) confers and concluded that it is “appropriate to issue the registration certificate”.  In the light of Rahman there can in my view be no objection to this structure in principle:  an extended family member does not have a right to have their application granted, as that case makes clear.  Therefore, it is not a case of merely demonstrating the right to reside, it is a question of the process which has to be gone through in order for it to be conferred. 

 

16. The submission that it “is merely an administrative hurdle to aid in restricting the facilitation of extended family members to enter and remain in the United Kingdom” is accordingly not made out.

 

17. It is then submitted that the requirement for an EEA national to have a registration certificate – for which, it is said, the applicant needs to pay a fee – is inconsistent with the intention of Article 3(2) and that the discretion given by the Directive does not extend to imposing terms whereby an EEA national needs to pay to confirm that they have a right to reside.  The submission appears misconceived in relation to the present case, in that regulation 16(7) as it stood both at the date of the claimant’s entry to the UK and at the date of the DWP’s decision in this case provided that “a registration certificate … shall be issued free of charge.”  While I appreciate that the words “free of charge” have been removed with effect from 1 July 2013 by SI 2013/1391, that change is subsequent to the events with which we are concerned and will have to be considered in a case where it arises. 

 

18. I therefore conclude that the domestic legislation has not extended beyond what was intended by the Directive, as interpreted by the CJEU in Rahman, whether on the grounds submitted on behalf of the claimant or at all.  I respectfully agree with the conclusions reached by Judge Jacobs in SS v Secretary of State for Work and Pensions (ESA) [2011] UKUT 8 (AAC), a case which predated the CJEU’s decision in Rahman but is in my  view consistent with it.

 

19. I consider that the law is clear and that it is not necessary to make the further reference under Article 267 TFEU which the claimant’s solicitors seek.

 

20. It follows that the decision of the First‑tier Tribunal was in material error of law and must be set aside. 

 

21. The claimant, having failed to obtain the necessary registration certificate, does not have rights as an extended family member.

 

22. If it is thought harsh that people in a somewhat vulnerable position such as the present claimant should lose out as a result of having failed to go through a procedure in which on suitable evidence they might have succeeded (I am not to be taken as expressing a view as to the prospects of success on a matter which is outside my jurisdiction), the practical remedy when the procedure is, as has been held, lawful, is to be found in the promotion of awareness among such individuals and those who support them of the need to go through the registration certificate or related procedures.

 

23. Though not part of the submission put to me, I did consider in the alternative whether the claimant might have rights on the ground of self‑sufficiency within Article 7(3)(b) of the Directive.  I am mindful that under C-408/03 Commission v Belgium [2006] ECR I-2647 contributions from others such as contributions in cash or kind (e.g. accommodation) from friends or family members are to be taken into account.  It appears that the claimant is significantly supported by members of her family, albeit not without difficulty on their part.  However, even if she were to be able to establish this, a process which would involve further consideration and fact‑finding in relation both to the support provided to her by her family and as to the problematic question of “comprehensive sickness insurance” for this purpose, I do not consider it would help her.  She could not on the facts have been self‑sufficient for long enough to have acquired a right of permanent residence.  If she had been self‑sufficient for a while leading up to her claim, it is possible that following the decision in C-140/12 Brey an individual consideration of her circumstances would have been required.  However the indications are that with the intention of remaining in the UK indefinitely, at the age of 64, with a degree of learning difficulty and not having worked, her reliance on pension credit would be both indefinite and substantial and certainly not a response to any temporary difficulty.  I am far from persuaded that it would be necessary to conduct a Brey type examination in this case but if it was, I would conclude that the claim would amount to an unreasonable burden on the social assistance system of the UK. 

 

23. It follows that the decision that must be substituted for that of the First‑tier Tribunal is that the Secretary of State’s decision of 16 May 2012 must be upheld.

 

 

(Signed on the Original)

 

 

 

C G Ward

Judge of the Upper Tribunal

 

26 March 2014