Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
As the decision of the appeal tribunal (made on 10 July 2008
at Hull under reference 950/08/00503) involved the making of an error in point
of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals,
Courts and Enforcement Act 2007 and the decision is RE-MADE.
The decision is: on her claim for a state pension credit
(made on 30 August 2007 and refused on 26 September 2007) the claimant had a
right to reside in the United Kingdom and was not to be treated as not in Great Britain. The Secretary of State will now investigate and decide on her entitlement
under that claim.
Reasons
for Decision
1.
This appeal is, at last, ready for decision. Mr Commissioner Rowland
gave the claimant permission to appeal in October 2008, shortly before the
Commissioner’s social security jurisdiction was transferred to the Upper
Tribunal. This transfer has not affected the progress or outcome of the appeal.
The case has had to await the answer by the European Court of Justice to the
questions referred to it in McCarthy v Secretary of State for the Home
Department (Case C-434/09). The parties have now made their submissions in
the light of that case.
A.
the issue and how it arises
2.
The facts of this case are no longer in dispute. The claimant is Polish.
She entered the United Kingdom on 16 August 2006. On 30 August 2007, she
applied for a state pension credit with effect from 30 August 2006. The
Secretary of State refused her claim on 26 September 2007 on the ground that
she was treated as not in Great Britain. In simple terms, the Secretary of
State decided that she did not have a right to reside.
3.
The Secretary of State accepts that the claimant is dependent on her
daughter, Mrs D, who lives in England with her British husband. She has been
here since about 2001, during which time she had worked as an interpreter on
both an employed and self-employed basis. Mrs D has both British and Polish
nationality, a fact that was not known to the appeal tribunal in 2008.
4.
On those facts, the issue is whether Mrs D has a right to reside. If she
does, so does her dependent mother. In my direction of 7 July 2001, I canvassed
three possible ways in which Mrs D might have a right to reside.
B.
directive 2004/38/EC
5.
Mrs D has both worked and been self-employed in this country. If she did
not have British nationality, she would be a worker or a self-employed person
under EU law and, as such, would have a right to reside. However, as she has
dual nationality, she cannot rely on the Directive. The reason lies in the rule
that a citizen of a State has an absolute right to reside in that State. It
follows, as the European Court of Justice explained in McCarthy, that
the Directive cannot affect that right:
34. Since, as stated in
paragraph 29 of this judgment, the residence of a person residing in the Member
State of which he is a national cannot be made subject to conditions, Directive
2004/38, concerning the conditions governing the exercise of the right to move
and reside freely within the territory of the Member States, cannot apply to a
Union citizen who enjoys an unconditional right of residence due to the fact
that he resides in the Member State of which he is a national.
…
37. Furthermore, the rights
of residence referred to in Directive 2004/38, namely both the right of
residence under Articles 6 and 7 and the permanent right of residence under
Article 16, refer to the residence of a Union citizen either in ‘another Member
State’ or in ‘the host Member State’ and therefore govern the legal situation
of a Union citizen in a Member State of which he is not a national.
6.
So, Mrs D is prevented from establishing a right to reside under the
Directive.
C.
article 21 tfeu
7.
The European Court of Justice considered the scope of this Article Its
discussion appears to leave open the question whether someone with dual
nationality may nonetheless have rights in EU law. However, I do not need to
consider this further, as Mrs D does have a right to reside under domestic
legislation.
D.
Immigration (European Economic Area) Regulations 2006
8.
I accept the argument of Julia Smyth of DWP Legal Services that Mrs D
and, therefore, the claimant each has a right to reside under this legislation.
9.
The claimant is a family member of Mrs D under regulation 7(1)(c) as a
dependent direct relative in her ascending line. As such, she has a right to
reside under regulation 14(2) if Mrs D has a permanent right to reside. Mrs D
has resided for the requisite period of five years to acquire that right under
regulation 15(1)(a), provided two conditions are satisfied. One is that she is
‘an EEA national’. She satisfies that condition by virtue of the definitions in
regulation 2(1), under which an EEA national is a national of an EEA State other than the United Kingdom. Mrs D, as I have said, is Polish. The other condition
is that she has resided in the United Kingdom in accordance with the 2006
Regulations. She would do so if she has resided as a worker. Under regulation
4(1)(a) a worker means ‘a worker within the meaning of Article 39 of the
Treaty’. The Secretary of State accepts that the evidence shows that Mrs D was
a worker within the caselaw of the European Court of Justice. Article 39 is a
Treaty provision and so free of the limitations on the scope of Directive
2004/38. There is, therefore, no impediment to Mrs D relying on that status for
the purposes of the 2006 Regulations.
10.
This coincides with the conclusion of Upper Tribunal Judge Rowland in Secretary
of State for Work and Pensions v AA [2009] UKUT 249 (AAC), although he
relied in part on the decision of the Court of Appeal in McCarthy, which
must now of course be read subject to the ruling of the European Court of
Justice in that case.
E.
conclusion
11.
Accordingly, as Mrs D satisfies the conditions for permanent residence,
her mother also has a right to reside as her dependent relative. She was
potentially entitled to a state pension credit and the Secretary of State must
now investigate and decide what entitlement, if any, she may have.
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Signed on original
on 15 September 2011
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Edward Jacobs
Upper Tribunal Judge
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