Martin Williams considers ‘right to reside’ cases currently pending before the courts and how to advise claimants.
The ‘right to reside test’ for means-tested benefits, child tax credit and child benefit was introduced on 1 May 2004. The test was modified two years later to take account of the coming into force of the European Community (EC) Citizenship Directive 2004/38/EC. It affects European Economic Area (EEA) nationals and their family members.
The initial legal challenges to the operation of the test were rejected by the UK courts.1 For example see Abdirahman and another v SSWP and another  EWCA Civ 657 (R(IS)8/07), and Zalewska v DSDNI  UKHL 67
More recently, there have been successful challenges relating to various aspects of the test.2 See Case C-480/08 Teixeira, Case C-162/09 Lassal and Pedro v SSWP  EWCA Civ 1358
Significantly, the European Court of Justice (ECJ) has thus far decided all challenges in favour of European Union (EU) migrants and their family members.
This article reviews right to reside cases pending in the higher courts and considers how best to advise claimants whose entitlement depends on their outcome. Note that there are also other cases pending judgment in the Upper Tribunal, which are not covered in this article.
SSWP v Elmi
This is the appeal of the Secretary of State for Work and Pensions (SSWP) from the three- judge panel of the Upper Tribunal in SSWP v FE  UKUT 287 (AAC). Ms Elmi is a lone parent who, having worked for a period and then become unemployed, was advised to claim income support (IS) by the Jobcentre. She had indicated that she was looking for work. The issue in her case is whether she retained her status as a worker and had a consequent ‘right to reside’ as someone in ‘duly recorded involuntary unemployment’ who had ‘registered as a jobseeker with the relevant employment office’, as required by Article 7(3)(b) or (c) of Directive 2004/38.
The Upper Tribunal decided, by majority, that Ms Elmi had retained her worker status as she had shown that she was seeking work, and, by stating this in writing to the Jobcentre, had fulfilled the requirement to have her name recorded as looking for work by ‘the relevant employment office’. This remains binding caselaw which claimants can rely on, unless and until it is overturned by the Court of Appeal. We understand, however, that the DWP is not acting in accordance with this decision at present. Advisers should seek specialist advice if this occurs and advise claimants to claim job- seeker’s allowance (JSA) if at all possible. The case is due to be heard by the Court of Appeal sometime between mid November 2010 and mid March 2012.
Tilianu v SFI & SSWP
Mr Tilianu is appealing against the decision of the High Court in R (on the application of Tilianu) v Social Fund Inspector and SSWP  EWHC 213 (Admin). The issue in his case is whether a person who has been and ceased to be self-employed can retain the status of ‘self-employed person’ under Article 7(3)(b) to (d) of the Directive, or whether these provisions only apply to ‘workers’. The High Court, agreeing with the Upper Tribunal in SSWP v RK  UKUT 209 (AAC), held that a self-employed person was not covered by Article 7(3)(b) to (d).
The case is particularly significant for A8 and A2 nationals who have worked on a self- employed basis and whose activity has ceased – eg, due to the recession. If they have not worked for 12 months or more under the worker registration or authorisation scheme, they will not have a right of residence as work-seekers, which often leaves the argument that they have a right to reside on the basis of their being self-employed people as their sole route to securing access to JSA and other benefits.
Advisers should always check whether a claimant has actually ceased to be self-employed. Those temporarily not working due to maternity3 CIS/1042/2008
are still self-employed, and a temporary cessation in activity may not mean that ‘self-employment’ has ended, if steps are being taken to secure further work and there is a reasonable prospect of this.4 SSWP v JS (IS)  UKUT 240 (AAC)
The case was heard by the Court of Appeal on 16 November 2010 and judgment is awaited.
Note that a different issue relating to the residence rights of self-employed people is whether a formerly self-employed person who is the primary carer of a child receiving education has a right of residence on this basis. This is being considered by the Upper Tribunal.5 File ref CIS/2357/2009 – decision awaited after hearing
Miskovic v SSWP
Mr Miskovic, a Czech national, was an asylum seeker with temporary admission and permission to work from the Home Office before the Czech Republic joined the EU. He worked in the same job before and after accession, and did not register it with the Home Office. In PM v SSWP  UKUT 236 (AAC), the Upper Tribunal decided that he was still an ‘accession state national requiring registration’, and therefore could not retain his worker status when he became ill and had no right to reside, as he had not been legally working in the UK for the 12 months in accordance with the accession regulations because he did not have leave to remain in the UK under the Immigration Act 1971.6 Reg 2(7) Accession (Immigration and Worker Registration) Regulations 2004 SI 2004 No.1219
The case raises the issue of whether asylum seekers working with permission were ‘legally working’ in the UK for the purposes of the Accession Treaties under which A8 countries joined the EU. If they were, then either the definition of ‘legally working’ in the Accession Regulations is partial or the UK regulations are unlawful. Mr Miskovic appealed to the Court of Appeal which part heard the case on 18 November 2010. A further hearing date is pending.
Blazej v SSWP
Ms Blazej is another A8 national who came to the UK in 2001. She initially had leave as a student and then obtained permission to remain as the spouse of a British citizen until 2003, which she did not renew. She divorced him in 2008. She had worked, with one small gap, from 2002 until 2007 when she claimed JSA, and then claimed, and was refused, IS in April 2008. Her appeal was dismissed by the Upper Tribunal in BB v SSWP  UKUT 126 (AAC).
One issue here is similar to that in Miskovic – namely whether Ms Blazej was ‘legally working’, for the purposes of the Accession Treaty, in the period prior to accession (which in turn raises a UK law point about the legality of working prior to 1 May 2004 once leave to remain expired). Another issue is whether the EU spouse of a British citizen has a right to work under Article 23 of Directive 2004/38, and if so, whether, for an A8 spouse of a British citizen, this means the registration requirements do not have to be satisfied. This case was heard alongside Miskovic and is linked to it and so is also ‘part heard’ at present.
Aleksandroviciute v SSWP
This is the claimant’s appeal against the decision of the Upper Tribunal in SSWP v ZA  UKUT 294 (AAC). The issue is whether a registration certificate issued under the A8 worker registration scheme which is applied for after the first month of work can operate retrospectively.
The Court of Appeal will be asked to decide whether a proper interpretation of the Accession Regulations leads to the conclusion that such certificates do operate retrospectively, and also, if they do not, whether the requirement for registration within the first month is a proportionate way of allowing the UK to monitor flows of A8 workers within the labour market (although Zalewska decided the scheme overall was a proportionate way of achieving the aim, this specific point was not considered by the House of Lords).
If late registration can operate to retrospectively ‘legalise employment’, many A8 nationals who have not applied for certificates on time (often because they mistakenly think applications for second or subsequent jobs require payment of an extra fee) will be able to claim benefit.
Kirij v SSWP
Ms Kirij is a Lithuanian national. She came to the UK in January 2000 as an asylum seeker and was appealing against the refusal of that claim when Lithuania acceded to the EU. She did not work before or after accession, but claimed pension credit from January 2006, which was refused. The Commissioner in CPC/2134/2007 upheld that decision, which had been confirmed by an Appeal Tribunal.
The Court of Appeal has allowed her further appeal to the extent of setting aside the Commissioner’s ruling that EU residence law cannot apply to someone who had moved to a member state before the state of which they are a national had joined the EU.
The Court, however, remitted certain matters back to the First-tier Tribunal, which has found that the claimant has a right of residence on a different basis to that originally in issue, so the case will not now require further judgment by the Court of Appeal. Had this not happened, the issues remaining for resolution were:
•whether a person can rely on residence in the UK which was lawful prior to their country joining the EU to establish a permanent right of residence under Article 16 of the Directive on the basis of five years’ legal residence;
•whether an asylum seeker with temporary admission is ‘legally residing’ for the purposes of Article 16 (it is unclear whether the Court could decide this without a referral to the ECJ, given its decision in Yesiloz v LB Camden  Civ 415);
•whether Ms Kirij had a right of residence directly under the EU Treaty after accession. Given that further findings of fact are required, however, it is unclear whether the Court of Appeal will deal some or all with these issues. It is not known when this case will be decided.
JS v SSWP
This is the claimant’s appeal against the decision of the Upper Tribunal in SSWP v JS (IS)  UKUT 131 (AAC).
The issue is whether a woman who is a worker and who then claims IS in the late stages of pregnancy continues to retain her status as a worker at that time. Note that the claimant was not entitled to maternity leave (which would have meant she was still a worker) as she was working for an agency. CPAG is acting for the claimant in this appeal.
RM v SSWP
In this case the Upper Tribunal decided that the appellant, a 17-year-old A8 national, did not have a right to reside in the UK. She was estranged from her father, also an A8 national, who was also held not to have a right of residence as, although he had worked and then become sick, he had not registered his employment under the worker registration scheme. He was a lone parent, having been widowed, who was also looking after younger children of school age. The claimant has applied for permission to appeal to the Court of Appeal against the decision of the Upper Tribunal. His main grounds for appeal are:
•the Upper Tribunal was wrong to hold that the claimant’s father did not have a right of residence as primary carer in accordance with Teixeira and JS v SSWP (IS)  UKUT 347 AAC (see legal section p16 – not to be confused with the JS v SSWP (IS)  UKUT 131 (AAC) discussed above);
that the House of Lords judgment in Zalewska, which held that the worker’s registration scheme for A8 nationals was proportionate to the legitimate aim it sought to pursue, should be re-examined in the light of recent judgments of the ECJ7 See for example Case C-135/08 Rottman
, on the basis that it should have had regard not just to whether the structure of the scheme as a whole was proportionate, but also to whether its application in the particular circumstances of each case was proportionate;
•that the correct approach to the application of the Directive is to ask in every case whether a refusal to recognise a right of residence would be proportionate, having regard to the Charter of Fundamental Rights of the European Union.
CPAG is representing the claimant in this case.
In Lekpo-Bozua v LB Hackney and Secretary of State for Communities and Local Government  EWCA Civ 809, a homelessness case, the Court of Appeal held that a French national, who had lived with her UK aunt from age nine to 16, but was not ‘self-sufficient’ during that period, did not have a right to reside. The case again raises the thorny issue of what quality of residence is necessary to count as ‘legally residing’ for the purposes of acquiring a permanent right of residence after five years. It is understood that Ms Lekpo-Bozua is seeking to pursue an appeal to the Supreme Court.
Ms Patmalniece’s case is now pending before the Supreme Court and was due to be heard on the 29 November 2010. Ms Patmalniece is covered by the EC co-ordination Regulation 1408/71 as she receives a small Latvian pension. She is arguing that the right to reside test, as a condition of entitlement to pension credit, constitutes unlawful discrimination under Article 3 of that Regulation.
Ms Patmalniece’s appeal was rejected by a Commissioner and the Court of Appeal. If she succeeds in the Supreme Court, the right to reside test will be fundamentally undermined because nearly all EU migrants will be covered by Regulation 1408/71, or its replacement EC Regulation 883/2004, which applies to all benefits affected by the right to reside test, apart from housing and council tax benefits.8 CH/1400/2006
In Dias, Case C-325/09, the ECJ has been asked to consider whether the period covered by a valid residence permit prior to the coming into force of Directive 2004/38 can count towards the five years’ legal residence needed to acquire a permanent right of residence, where there was no other basis for a right of residence. A Commissioner had decided that Ms Dias did have a right of residence solely on the basis of the unrevoked permit, but this was queried by the Court of Appeal.9 CIS/185/2008; Dias v SSWP  EWCA Civ 807
The issue is now a largely academic one in Ms Dias’s case, following the recent ECJ judgment in Lassal (see Bulletin 118). Furthermore, Ms Dias’s case may not address the related issues of:
whether the registration certificates and residence cards which replaced residence permits after 30 April 2006 have the same effect as the permits (the Upper Tribunal in EM and KN v SSWP10 EM and KN v SSWP  UKUT 44 (AAC)
held that certificates did not but the cards may do);
•whether a person with a valid residence document can rely on the non discrimination provision within Art 18 of the Treaty on the Functioning of the European Union.
The ECJ is due to hear this case on 16 December 2010.
In McCarthy, Case C-434/09, the ECJ has been asked to consider whether a dual British/Irish national who has always lived in the UK:
•is covered by Directive 2004/38; and
•if so, whether she can acquire a permanent right of residence on the basis of her residence in the UK, which was legal under UK law.
The opinion of the Advocate General was due to be issued on 25 November 2010.
Advising clients in similar circumstances
When advising a client whose entitlement to benefit depends on the outcome of one of the above cases, the case law which currently applies is normally the judgment of the Upper Tribunal, Commissioner or Court whose decision is being appealed. The only exception would be where there were other existing conflicting decisions at the same level.
It is always important to check whether clients have arguments other than those in issue in the above cases, which could be used to secure their entitlements – eg, that a claimant is still self-employed to get around the problem of whether s/he retains that status as per Tilianu.
If the caselaw under appeal is currently unfavourable to a client, s/he should appeal and ask for the appeal to be stayed, pending the final outcome of the appeal in the test case. If the caselaw under appeal is currently favourable to a client, s/he should request an award of benefit based on the caselaw. If the DWP suspends an award on the basis of the test case appeal, seek specialist advice.
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