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Slezak v Secretary of State for Work and Pensions [2017] CSIH 4

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Slezak v Secretary of State for Work and Pensions [2017] CSIH 4

30 January 2017

The appellant was a national of Poland who was enrolled in secondary education in Glasgow. She was estranged from both of her parents. The appellant’s mother, also a national of Poland, had previously been a jobseeker in the United Kingdom and lived with the appellant in Glasgow before returning to Poland without her. On turning 16, the appellant applied for income support to assist with her living costs whilst attending school. The application was refused on the basis that she was a “person from abroad” for the purposes of regulation 21AA of the Income Support (General) Regulations 1987, which absolutely excludes the holders of certain rights of residence under the Immigration (European Economic Area) Regulations 2006 from being able to satisfy the ‘habitual residence’ test under regulation 21AA, which is imposed on all benefit claimants, irrespective of nationality. The appellant successfully appealed the refusal of income support to the First-tier Tribunal but the Secretary of State successfully appealed the First-tier Tribunal decision to the Upper Tribunal. The appellant thereafter sought and was granted leave to appeal to the Court of Session.

The basis for the appeal to the Inner House was that the right to reside conferred on the appellant by virtue of her mother’s former jobseeking status was not an excluded right for the purposes of regulation 21AA, the excluded right being predicated on physical presence of the primary right holder, not absence, on which basis the appellant would be entitled to income support if the habitual residence test was able to be satisfied. In support of her construction of regulation 21AA, the appellant relied on the fact that a British national child in the same position as her, of necessity living away from her parents, would have been entitled to income support notwithstanding persons in secondary education are ordinarily excluded, and thus the interpretation favoured by the Secretary of State would require the court to discriminate against the appellant, an EU national, on grounds of nationality. The respondent resisted the appeal in its entirety, doing so on the basis, inter alia, that the construction put forward by the appellant would give rise to an absurdity, namely favouring the children of former jobseekers, not in the United Kingdom, over those of current jobseekers, who were still here. Further, the Secretary of State sought to argue that the appellant’s construction would incentivise the break up of families by encouraging parents to leave their children behind in the United Kingdom in order to qualify them for state benefits.

The Inner House rejected the submissions of the respondent, describing the latter submission as “far fetched”, and allowed the appeal, agreeing with Counsel for the appellant that:

“… a distinction falls to be drawn between the right conferred by Regulation 14(2) of the EEA Regulations on the one hand, and the right conferred by Regulation 14(3) of those regulations on the other hand. Regulation 14(2) provides an extended right of residence to the family member of a primary right holder who is residing in the United Kingdom with continuing “qualified person” status. Regulation 14(3) is predicated on the primary right holder having left the United Kingdom. The definition of the phrase “qualified person” in Regulation 14 is to be found in Regulation 6; it is clear from that definition that a “qualified person” must be present in the United Kingdom. A person who is an EEA national who has entered the United Kingdom in order to seek employment is (subject to the conditions set out in Regulation 6) a qualified person. On the basis of the Upper Tribunal’s findings in fact the appellant’s mother was a jobseeker in the United Kingdom, and was a qualified person. However, when she returned to Poland she ceased to be a qualified person.

[24] After the appellant’s mother returned to Poland, the appellant remained in the United Kingdom. She was the daughter of a person who ceased to be a qualified person on ceasing to reside in the United Kingdom, and she was attending an educational course in the United Kingdom immediately before the qualified person ceased to be a qualified person, and continues to attend such a course. On this factual basis, she falls within the definition of a “family member who has retained the right of residence” provided by Regulation 10(1) and (3) of the EEA Regulations.

[25] It follows from the above that the appellant has the extended right of residence provided for by Regulation 14(3), and not the right of residence provided by Regulation 14(1) or (2). 

[26] Turning to Regulation 21AA of the IS Regulations, paragraph (3)(b) is concerned only with cases where the right to reside falls under Regulation 14(1) or (2).  Subparagraph (b)(i) is concerned with the situation in which the right to reside exists because the claimant is a jobseeker for the purpose of the definition of “qualified person” in Regulation 6(1) of the EEA Regulations – that is to say, someone who is present in the United Kingdom and seeking work.  Subparagraph (b)(ii) relates to a family member of such a jobseeker.  The appellant does not fall into either of these categories;  rather, she is a family member who has retained the right of residence in terms of Regulation 10}(3) of the EEA Regulations.  Her right to reside does not fall within paragraph (3) of Regulation 21AA.

[27] It does not appear from the reasoning of the Upper Tribunal that it has recognised the distinction to be drawn between Regulation 14(1) and (2) on the one hand, and Regulation 14(3) on the other. The Upper Tribunal has, we consider, fallen into error in holding that the appellant falls within the provisions of Regulation 21AA(3)(b)(ii), because the appellant’s mother is no longer a jobseeker. She ceased to be a jobseeker when she departed from the United Kingdom. Regulation 21AA(3)(b) is phrased in the present tense: “but only in a case where the right exists under that regulation because the claimant is a family member … of such a jobseeker” (emphasis added).  The error of the Upper Tribunal may be seen from its use of the past tense in the last sentence of paragraph 15 of its decision letter (quoted above), in which it holds that the appellant’s right to reside is one which she has as a “family member” of an EEA national who had been a “jobseeker” in the United Kingdom (emphasis again added). Properly construed, we do not consider that Regulation 21AA(3)(b) relates to such a person. It relates to a job seeker present within the United Kingdom, or a family member of a jobseeker present in the United Kingdom – it does not relate to a family member of someone who has ceased to be a jobseeker within the United Kingdom.”

The appeal was thus able to be decided on ordinary principles of statutory construction. The court also accepted, however, the argument of the appellant in support of the construction put forward, to the effect that it was required in order to give effect to the absolute prohibition in EU law of discrimination on grounds of nationality.

The case has now been remitted to the Upper Tribunal to allow certain outstanding findings of fact, including as to habitual residence, to be made.

Lesley Irvine of Axiom Advocates appeared for the appellant.