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	UK Social Security and Child Support Commissioners' Decisions
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[2001] UKSSCSC CIS_5707_1999 (26 September 2001)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CIS/5707/1999

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

SOCIAL SECURITY ACT 1998

APPEAL FROM A DECISION OF A SOCIAL SECURITY APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

COMMISSIONER: MR J MESHER

[ORAL HEARING]


 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The decision of the Edmonton social security appeal tribunal dated 2 March 1999 is erroneous in point of law, for the reasons given below, and I set it aside. But the claimant does not gain any practical advantage from that. It is expedient for me to substitute the decision on the claimant's appeal against the adjudication officer's decision issued on 29 March 1998 having made the necessary findings of fact (Social Security Act 1998, section 14(8)(a)(ii)). My decision is that the claimant is not entitled to income support for the period from 11 March 1998 to 30 March 2000 (in so far as that period has not already been adjudicated on following a subsequent claim for income support) because he is a person from abroad with an applicable amount of nil (Income Support (General) Regulations 1987, regulation 21 and Schedule 7, paragraph 17) and his entitlement is not precluded by that rule for the period from and including 31 March 2000 (in so far as that period has not already been adjudicated on following a subsequent claim for income support). In paragraph 18 below, I indicate the circumstances in which there may be an application for a further decision.
2. The claimant is a Turkish national. He arrived in the United Kingdom on 21 December 1994 and claimed asylum on 6 January 1995 (see the copy of the letter dated 16 January 1995 from the Immigration and Nationality Department of the Home Office: page 81). The evidence of the copy of his passport (page 85) is that he was given leave to enter for six months on 21 December 1994 subject to the condition that he did not take employment. I do not know whether the application for asylum received on 6 January 1995 also contained an application to extend or vary the claimant's leave. On 31 March 2000 he and his family were granted leave to remain in the United Kingdom for four years.
3. The claimant was awarded income support at the urgent cases rate from 3 March 1995, but that award ceased on 8 September 1995 on his starting full-time work. He made a further claim on 11 June 1996 on which income support was awarded. That award was reviewed and revised on 3 March 1997. He had satisfied the relevant regulations as they were before 5 February 1996, but not as they were amended from that date. From that date, only those who claimed asylum "on arrival" were eligible for the urgent cases rate of income support. The claimant did not come within the protection given by regulation 12(1) of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 ("the 1996 Regulations") as he was not entitled to income support at the urgent cases rate immediately before 5 February 1996. The review decision belatedly gave effect to that view of the law, which has now been confirmed by the Court of Appeal in R v Secretary of State for Social Security, ex parte Vijeikis and others (5 March 1998).
4. The claimant made another claim for income support on 11 March 1998. On 29 March 1998 this claim was disallowed on the basis that he was a person from abroad who did not satisfy the current conditions for entitlement to income support at the urgent cases rate. The claimant appealed against the decision on 21 April 1998. The adjudication officer's written submission to the appeal tribunal was that the claimant was a person from abroad within sub-paragraph (g) of the definition in regulation 21(3) of the Income Support (General) Regulations 1987 as a person who had not had his immigration status determined by the Secretary of State. The claimant, having opted for an oral hearing, attended the hearing on 3 March 1999 with his wife and an interpreter. He had expected his solicitors to appear, but apparently agreed to the hearing going ahead without them. A representative of the solicitors arrived after the decision had been made.
5. The appeal tribunal dismissed the claimant's appeal and confirmed the adjudication officer's decision. An application to set aside the decision, on the ground that a telephone message was passed to the tribunal office in Nottingham that the representative of the solicitors had been unavoidably delayed, was refused. The claimant now appeals against that decision with the leave of a Commissioner. In the submission dated 10 August 2000 on behalf of the Secretary of State the appeal was rather faintly supported on the ground that there had arguably been a breach of natural justice. But it was also submitted that there was insufficient information before the appeal tribunal for it to be determined whether or not the claimant was entitled to income support. All that the appeal tribunal had been told was that the claimant had entered the United Kingdom on 21 December 1994 and had claimed asylum on 10 March 1995 (as was recorded, it appears wrongly, on the SAL 4 letter). I agree that in the case of a Turkish national that was insufficient to work out whether and how the claimant came within the definition of "person from abroad" (see the discussion below). The appeal tribunal erred in law in failing to deal with relevant issues and its decision must be set aside. The question remains of what decision should be given on the claimant's appeal against the adjudication officer's decision of 29 March 1998. Although there are some uncertainties about the facts, there is no point in sending the case back to another appeal tribunal and I give the decision on the issue of legal principle.
6. Proceedings in the appeal were at one time mistakenly deferred pending the outcome of the decision of the Court of Appeal in Yildiz v Secretary of State for Social Security, which was handed down on 1 March 2001. I directed an oral hearing jointly with two other cases concerning Turkish nationals who were asylum-seekers. The claimant attended and was represented by Ms White of the National Association of Citizens Advice Bureaux Welfare Rights Unit. The Secretary of State was represented by Mr Maurici of counsel, accompanied by Mr Chang of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to all present for their assistance.
7. Ms White rightly agreed that the claimant was not entitled to rely on any transitional protection in relation to income support under regulation 12(1) of the 1996 Regulations. The first question is whether the claimant was a "person from abroad" on 11 March 1998. Such a person who was not covered by regulation 70 of the Income Support Regulations had an applicable amount of nil (paragraph 17 of Schedule 7 to the Income Support Regulations) and accordingly could not be entitled to income support. I need to set out the full relevant definition, as in force on 11 March 1998, from regulation 21(3):

"`person from abroad' means a person, who--

(a) has a limited leave as defined in section 33(1) of the Immigration Act 1971 (hereinafter referred to as `the 1971 Act') to enter or remain in the United Kingdom which was given in accordance with any provision of the immigration rules (as defined in that section) which refers to there being, or there needing to be no recourse to public funds or to there being no charge on public funds during that limited leave; but this sub-paragraph shall not apply to a person who is a national of a Member State, a state which is a signatory to the European Convention on Social and Medical Assistance (done in Paris on 11th December 1953) or a state which is a signatory to the Council of Europe Social Charter (signed in Turin on 18th October 1961), unless, in the case of a national of a state which is a signatory of that European Convention, he has made an application for the conditions of his leave to remain in the United Kingdom to be varied, and that application has not yet been determined or an appeal is pending under Part II of the 1971 Act (appeals); or

(b) having a limited leave (as defined in section 33(1) of the 1971 Act) to enter or remain in the United Kingdom, has remained without further leave under that Act beyond the time limited by the leave; or

(c) is the subject of a deportation order being an order under section 5(1) of the 1971 Act (deportation) requiring him to leave and prohibiting him from entering the United Kingdom; or

(d) is adjudged by the immigration authorities to be an illegal entrant (as defined in section 33(1) of the 1971 Act) who has not subsequently been given leave under that Act to enter or remain in the United Kingdom; or

(e) has been allowed temporary admission to the United Kingdom by virtue of paragraph 21 of Schedule 2 to the 1971 Act; or

(f) has been allowed temporary admission to the United Kingdom by the Secretary of State outside any provision of the 1971 Act; or

(g) has not had his immigration status determined by the Secretary of State; or

(h) is a national of a Member State and is required by the Secretary of State to leave the United Kingdom; or

(i) has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking given by another person in writing in pursuance of immigration rules within the meaning of the Immigration Act 1971, to be responsible for his maintenance and accommodation; and he has not been resident in the United Kingdom for a period of at least 5 years beginning with the date of entry or the date on which the undertaking was given in respect of him, whichever date is the later; or

(j) while he is a person to whom any of the definitions in sub-paragraphs (a) to (i) applies in his case, submits a claim to the Secretary of State, which is not finally determined, for asylum under the Convention;"

Turkey is a signatory to the Convention ("ECSMA").

8. It seemed at the oral hearing that almost every one of those sub-paragraphs was suggested as applicable to the claimant at some stage in his history. There are indeed difficulties in working out the meaning of all the sub-paragraphs and the position at all stages. On the granting of leave to enter on 12 December 1994 none of those sub-paragraphs would seem to have applied. The claimant had limited leave as defined in section 33(1) of the Immigration Act 1971, ie leave "limited as to duration". The provision of the immigration rules dealing with the conditions for granting leave to enter as a visitor (paragraph 41) refers to a requirement that the person will maintain himself without recourse to public funds. So far the claimant would seem to have fallen within sub-paragraph (a), but he was taken outside that sub-paragraph because of his Turkish nationality, Turkey being an ECSMA signatory. Thus, sub-paragraph (j) could not be applied to him without thought when he claimed asylum on 6 January 1995, before the expiry of his limited leave, because immediately before that claim none of sub-paragraphs (a) to (i) applied to him.
9. A representative of the Secretary of State wrote to the Immigration and Nationality Directorate on 2 August 2000 with a series of questions about the claimant's immigration status. A brief reply was received in the letter dated 11 April 2001 (page 68). This said that the claimant had entered the United Kingdom illegally as a visitor on 21 December 1994. This seems to reflect the Home Office's view that a person who applies for asylum shortly after entry as a visitor must have obtained entry by deception and so is an illegal entrant. I do not need to grapple with that issue and whether or not he had been "adjudged" to be an illegal entrant under sub-paragraph (d). The letter of 11 April 2001 said that the claim for asylum was made on 10 March 1995 (which is now known to be wrong) and determined on 31 March 2000. It also said that he had made no other applications. This must mean that he made no application for variation of his limited leave and, I think, reflect a view that the claim for asylum did not include an implied application for variation.
10. Where does that leave the claimant as at 11 March 1998, the date of the relevant claim for income support? In my judgment, sub-paragraph (b) applied to him, or, if not, sub-paragraph (j). He had had limited leave and he remained beyond the six month limit without further leave. In sub-paragraph (b) there is no exception for nationals of ECSMA signatory states and no limitation to persons who were previously within sub-paragraph (a). On that basis it does not matter whether or not the claimant also came within sub-paragraph (d) or (g) as a person whose immigration status had not been determined. If the claim for asylum should have been treated as an implied application for variation of limited leave then at that exact point the claimant would have fallen within sub-paragraph (a) as the exclusion of nationals of ECSMA signatory states does not apply where an application for variation has been made and is outstanding. On that basis, one of sub-paragraphs (a) to (i) applied to him at the moment when he made his claim for asylum and from that date onwards he came within sub-paragraph (j). The claimant was therefore "a person from abroad" and not entitled to income support under the Income Support Regulations. I do not then need to consider the various other sub-paragraphs of the definition which were debated at the oral hearing.
11. Since the oral hearing I have had drawn to my attention the decision of the Tribunal of Commissioners in R(SB) 24/84. There the claimant's limited leave under section 3 of the Immigration Act 1971 had expired when he made a claim for asylum. The Tribunal held that the claimant had been granted further leave, outside the immigration rules and on a extra-statutory basis, because he had the permission of the Home Office to remain pending the determination of his asylum claim (paragraph 17). An incautious reading of that decision might lead to the conclusion that it held that the mere acceptance for consideration of a claim for asylum amounted to permission to remain in the country. But Mr Commissioner Hallett, who had been a member of the Tribunal, explained clearly in paragraphs 13 to 17 of decision R(SB) 25/85 that R(SB) 24/84 turned on the fact that following the claim for asylum the Home Office had sent the claimant a letter saying that permission to stay was extended. Thus it was a case where leave to remain had expressly been given. R(SB) 24/84 does not affect a case, like the present, where the Home Office has said nothing beyond recording the claim for asylum. There is nothing in R(SB) 24/84 to contradict the conclusion I have reached in the previous paragraph.
12. Does any provision of European Community law require a different result? The potentially relevant provision is Decision No 3/80 of the Association Council under the Association Agreement between the European Economic Community and Turkey. Under Article 2 the persons to whom the Decisions applies include "workers who are, or have been, subject to the legislation of one or more Member States and who are Turkish nationals". This covers the claimant in the present case, by virtue of his employment in the United Kingdom in 1995 and 1996. Article 3(1) of Decision No 3/80 provides:

"1. Subject to the special provisions of this Decision, persons resident in the territory of one of the Member States to whom this Decision applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member States as the nationals of that State."

It was held by the European Court of Justice ("ECJ") in Sürül v Bundesanstalt für Arbeit (Case C-262/96) [1999] ECR I-2685 that Article 3(1) has direct effect and can therefore be relied on by individuals before national courts. Because the claimant's appeal to the appeal tribunal was made before the date of the judgment in Sürül (4 May 1999) he can rely on Article 3(1) free of the temporal limitation imposed in the judgment. However, the crucial question is whether income support is within the material scope of Decision No 3/80 as set out in Article 4.

13. Article 4(1) provides that the Decision is to apply to:

"all legislation concerning the following branches of social security:

(a) sickness and maternity benefits;

(b) invalidity benefits, including those intended for the maintenance or improvement of earning capacity;

(c) old-age benefits;

(d) survivors' benefits;

(e) benefits in respect of accidents at work and occupational diseases;

(f) death grants;

(g) unemployment benefits;

(h) family benefits."

That is the same definition as appears in Article 4(1) of Regulation 1408/71.

14. Ms White rightly agreed that income support did not come into any of those branches of social security, as it does not provide cover against any of the specific risks listed, but is a general benefit based on income being less than needs (see the Court of Appeal in Perry v Chief Adjudication Officer (15 October 1998) reported as R(IS) 4/99, the appeal from CIS/863/1994, and paragraph 19 of the judgment of the ECJ in Swaddling v Adjudication Officer (Case C-90/97) [1999] ECR I-1075, also reported as R(IS) 6/99). Her submission relied on the series of cases in the ECJ concerning the Algerian and the Moroccan Cooperation Agreements with the EEC culminating in Babahenini v Belgian State (Case C-113/97) [1998] ECR I-183. In that case it was suggested in paragraph 27 of the judgment that Article 39(1) of the Agreement with Algeria (which confers the right for workers of Algerian nationality to enjoy, in the field of social security, treatment free of discrimination based on nationality in relation to nationals of the Member State in which they are employed) covers benefits brought in by the amendment of Regulation 1408/71 in 1992 to include special non-contributory benefits under Article 4(2A) and Annex IIA. Earlier cases had decided that the term "social security" in Article 39(1) of the Agreement had to bear the same meaning as the identical term in Regulation 1408/71. Ms White submitted that the same extension should be applied to Article 4(1) of Decision No 3/80. The significance is that income support is a special non-contributory benefit, listed in Annex IIA to Regulation 1408/71 (see Swaddling).
15. I reject that submission. In the Algerian and Moroccan Cooperation Agreements there is no more precise definition of the material scope of the prohibition of discrimination on the ground of nationality than the phrase "in the field of social security". Thus, once it had been decided that there "social security" should have the same meaning as in Regulation 1408/71, there was nothing in the terms of the Agreements to prevent the meaning being the same as in Regulation 1408/71 as amended in 1992. However, Article 4(1) of Decision No 3/80 provides its own express definition of the material scope of the Decision, rather than use the broad term "the field of social security". Article 4(1) must be given its own proper meaning and cannot be treated as if it had been amended in the same way as Regulation 1408/71 in 1992 when it has not been amended. It cannot make any difference to that result that Decision No 3/80 mirrored the scope of Regulation 1408/71 when it was adopted. The passages cited by Ms White from Sürül in which it is said that Article 3(1) of Decision No 3/80 is the concrete expression in the field of social security of the principle of non-discrimination on the ground of nationality do not help the claimant. Those statements were made in the context of the question whether Article 3(1) was directly effective. The ECJ made it plain at other points that its decision was limited to the field covered by Decision No 3/80 (see paragraphs 75 and 97 of the judgment). It may be unfortunate if Turkish nationals are given a less extensive protection than Algerian and Moroccan nationals, but that is the result of the terms of Decision No 3/80 themselves.
16. The conclusion is that income support is outside the scope of Decision No 3/80, so that the claimant cannot rely on the prohibition of discrimination on the ground of nationality in Article 3(1). Ms White did not argue that the claimant could derive any directly enforceable rights from ECSMA itself, which again is right.
17. The result is that there is nothing to prevent the operation of the British legislation. The substantive decision reached by the appeal tribunal was therefore right. Since the appeal against the adjudication officer's decision was made before 21 May 1998 I should in principle deal with the whole period from 11 March 1998 down to today. I do not know whether the claimant has made any subsequent claims for income support (the decisions on which will not be affected by my decision). However, I can deal with the principles in the light of the determination of the asylum claim on 31 March 2000. For the period from 11 March 1998 to 30 March 2000 (so far as not already adjudicated on following a subsequent claim) the claimant is not entitled to income support because he is a person from abroad with an applicable amount of nil. For the period from 31 March 2000 onwards (again so far as not already adjudicated on following a subsequent claim), the claimant ceased to be a person from abroad either by virtue of regulation 21ZA(1) of the Income Support Regulations or by virtue of no longer coming within the definition in regulation 21(3) (being a Turkish national with limited leave), so that his entitlement to income support is not precluded by the special provisions in paragraph 17 of Schedule 7. I do not attempt to deal with the situation following the amendments to the relevant legislation on 5 April 2000.
18. If my decision in paragraph 17 above is not sufficient to enable the claimant's entitlement to income support to be worked out for whatever period remains in issue on the appeal against the adjudication officer's decision of 29 March 1998, either party may make application to me, or to another Commissioner, for a further and more detailed decision.

(Signed) J Mesher

Commissioner

Date: 26 September 2001