| Social Security — Entitlement to benefits — Persons from abroad — Whether lawful presence to be equated with “ right to reside” — Income Support (General) Regulations 1987 (SI1987/1967), reg 21(3G), as inserted by Social Security (Habitual Residence) Amendment Regulations 2004 (SI 2004/1232), regs 2-5
Abdirahman v Secretary of State for Work and Pensions: Abdirahman v Leicester City Council and another: Ullusow v Secretary of State for Work and Pensions
CA(Sir Andrew Morritt, C, Lloyd and Moses LJJ): 5 July 2007
When considering applications made by EU and EEA nationals living in the United Kingdom for social security benefits who were neither economically active nor self-sufficient, lawful presence in the United Kingdom was not to be equated with a “right to reside” within the meaning of reg 21(3G) of the Income Support (General) Regulations 1987 for the purposes of entitlement to social security benefits.
The Court of Appeal so held in dismissing the appeals of the claimants, Nadifa Dalmar Abdirahman and Ali Addow Ullusow from the decision of a special panel of three Social Security Commissioners that the first claimant’s claim to income support, housing benefit and council tax benefit and the second claimant’s claim to pension credit failed because neither claimant had a right to reside in the United Kingdom for the purposes of the Income Support (General) Regulations 1987.
The claimants were born in Somalia and were nationals of Sweden and Norway respectively and had entered the United Kingdom lawfully as EEA nationals. Neither claimant was at the relevant time a worker or economically self-sufficient.
LLOYD LJ said that UK law made a distinction between a right to reside and any lesser status, in particular that of an EEA national who was in this country having entered lawfully and had committed no breach of immigration law, but who was not a qualified person and therefore did not enjoy the benefit of reg 14 of the Immigration (European Economic Area) Regulations 2000 (SI 2000/2326) which conferred a “right to reside”. The claimants, although lawfully present, did not have a right to reside, under UK law, at the time relevant to the appeals, because they were not qualified persons. The claimants said that would result in the UK being in breach of its international treaty obligations under the European Convention on Social and Medical Assistance 1953 (ECSMA), and that if a statutory provision was capable of more than one meaning, a meaning which was consistent with treaty obligations should be preferred. The Secretary of State said that the Convention distinguished between lawful presence, and residence, or lawful residence (see art 11). His Lordship said that the provisions of the EU Treaty were of more direct relevance (see art 18); the preamble to Directive 90/364/EEC provided “Whereas beneficiaries of the right of residence must not become an unreasonable burden on the public finances of the host Member State”. Art 18 did not create a right of residence for an EU citizen in another member state in a case where the limitations imposed under the Directive were not satisfied, and that those limitations were proportionate to the legitimate objective in protecting the public finances of the host member state. It was difficult to suppose that the terms of ECSMA could properly be read as imposing on its contracting parties obligations more onerous than those imposed directly on EU member states by art 18 as regards rights of residence. In any event the relevance of an international treaty to the interpretation of domestic legislation was limited. The present case was not one in which the legislation to be construed was enacted in order to give effect to the treaty obligations in question. Since the right claimed was not within the scope of the Treaty, the need to justify discrimination on the grounds of nationality which was involved in the use of the right to reside test did not arise.
MOSES LJ delivered a concurring judgment. SIR ANDREW MORRITT, C, agreed.
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