Good morning,

Some lawmakers seem to believe that the five year residence period for RTR need not require the continuous exercise of Treaty rights. Here is a clip from para 23 of Kaczmarek v Secretary of State for Work and Pensions <2008> EWCA Civ 1310 (R(IS) 5/09) (13.16.2008), when discussing the Residence Directive:

‘…it provides for a right of permanent residence after five years’ lawful presence which is not conditional on the claimant being economically active or self-sufficient. To that extent it represents a further liberalisation of the European perspective on entitlement
to social security benefits.’

Here is a clip from para 3 of CIS/1028/2007 (20.4.2009), discussing the length of residence of the particular claimant:

‘…However, her period of presence under a right of residence still fell well short of the five years necessary to obtain a right of permanent residence, not subject to the condition of being a worker or self sufficient, under the Directive'.

The domestic regs seem to me to suggest that you must be a 'qualified person' etc for 5 years.

Does anyone have a view?

Steve

Thought I'd reply as nobody else seems to. I have had discussions with DWP on this and they tried to come back at me with the technicalities of the European legislative system.

An EU "Regulation" must be obeyed and directly transferred into National legislation.

An EU "Directive" must only be "implemented" into the current National legislation.

In this case the UK have implemented it but have placed the restricted concept of "qualifying" persons who are legally here, where the directive only states they have to be legally here.

Hi Nick,

Many thanks for this, although I am not sure where it leaves us! The UK only introduced conditions on migrant EU nationals (with RTR) in May 2004. Prior to that, you literally only had to be here, so far as I can see.

Is it allowable for the UK version of the rules to be so restrictive? In the Baumbast debates, the issue of proportionality has raised its head, with regard to the relationship subsidiary legislation and Article 18. Would you agree/could it be argued that the domestic regs are therefore disproportionate, with regard to the strings they have attached to the nature of the 5 years residence?

Thanks again,

Steve

You also have to consider the issue of "burden upon the state".

Dis-proportionality could be agrued if for the majority of 5 years time in the UK the individual was working and was likely to continue to work.

Or, if the individual had never worked but had been supported and was still being supported by his/her spouce.

If on the other hand the individual had never worked and was not likely to work in the future they would become a burden upon the state and would not have been a "qualified person" in the 5 years in the UK. The decision to refuse may not be dis - proportionate. ?

Baumbast was essentually overruled on the basis that kids everywhere usually change schools at some time in thier education and unless it is a critical time in education (16 and GSE's)

Thanks for these additional thoughts Nick.

Steve

Can anyone clarify the following with regard to permanent R2R?

1. There is a case before the ECJ ( Lassal ) - will this only apply to someone whose 5 year period ended before EU Directive 28/2004 came into force in April 2006? What exactly are the issues to be decided in Lassal? When is judgement expected?

2. Does time spent on income support count towards lawful residence? JSA?

3. Are gaps inbetween JSA claims and working fatal to adding up the periods for 5 years?

Many thanks!

Your questions to some extent overlap with the issues I raised at the start of this thread. My crystal ball says that when the dust settles on the case law, we will see that the criteria should be 5 years lawful residence, as the Residence Directive suggests. If a person can get IS 'lawfully' (through whichever route), then surely thats ok. The domestic regs are clearly out of line with the Directive. I know that this in itself is not fatal, but I think they are too far out of line for them to hold long term.

So far as gaps are concerned, other areas of RTR seem to tolerate gaps ok (for example, there can be a gap between leaving a job and signing on, whilst still retaining 'worker no longer working' status).

I say that a 'no gap' position would be 'disproportionate' |(theres a nice European concept).

Steve

"An EU "Regulation" must be obeyed and directly transferred into National legislation.

An EU "Directive" must only be "implemented" into the current National legislation. "

the legal position is:

a Regulation is of direct effect - that is to say, no domestic legislation is required to give effect to anyone's rights or responsibilities under a regulation.

a directive is not of direct effect, and does require domestic legislation to give effect to rights/responsibilities in domestic law.

and if the domestic legislation doesn't manage to import the directive correctly, action can be taken.

but it does depend on whethere there are individula rights that shoudl have been imported by the directive, and any action is only against the government;

the case that makes this point is Frankovich.

here's a precis of that:
http://www.emplaw.co.uk/researchfree-redirector.aspx?StartPage=data%2f03400802.htm

the most recent application of Frankovich i'm aware of in the UK is Byrne v MIB & Sec of State for Transport (about the MIB agreement and limitation of actions...)

and, PS, the Court of Appeal and the Tribunal are not lawmakers....

Hi Claire,

I of course appreciate that Directives are supposed to be interpreted into domestic law - that is made explicit in the Residence Directive (RD) itself. But if you are right about the RD having no direct application, why do the Persons From Abroad regs that gateway RTR rights into various means tested benefits, expressly use the RD definitions when deciding who has habitual residence (usually para 4 of each respective PFA reg)? If there was an appeal concerning alleged membership of these groups, the criteria would be the precise terms of the RD, would it not? That looks like direct applicability to me. In view of this, are you still sure you are right? I am of course happy to be corrected.

In your last post, you said that the Court of Appeal was not a lawmaker. I realise that the CoA does not draft regs (!) but I thought the Court of Appeal had a role in precedent. Thats what I meant - please forgive the clumsy phrasing.

For info, I never suggested (or intended to say) that Tribunals were lawmakers...

Have I offended thee?!

Steve

hardly... just lawyerly precision LOL

judges interpret statutes.

i'm fairly sure i'm right about direct and indirect effect, reinforced on that by frankovich which is of course a decision of the ECJ

sometimes the same words will be used in the domestic legislation as were used in the european directive...

beyond that i'm dredging my brain

i didn't say "direct application" i said "direct effect" which is different, IMHO (sorry, i AM a lawyer, and this is european stuff we're talking about)

at this point i wish we could do proper quoteys in this forum

and of course, the CA caps a tribunal or upper tribunal so what they say goes, until the supreme court or the ECJ say different....

Hi, i thought i would weigh in with my pennys worth

As claire has stated regulations are 'directly effective' (e.g. they are applicable in English Law as sone as they are passed by eroupe) and Directives are 'indirectly effective' as they need to be enacted (for want of a better word) by some further act by the member state with in a set time limit. In the UK this is by the passing of legislation.

It is my understanding when looking at EU law, as words mean differnet things in different cultures, that it is the purpose of the law rather than the meaning of the workds that is inportant. The enabling act therefore must reflect the purpose the Directive.

It has been long established that EU is higher than UK law and where it conflicts EU should prevail (Costa V ENEL, Van gen den loos (if i've spelt it right) and Factortame)

If the directive is not enacted or does its purpose is not reflected in the domestic legislation then the person to whom it applies (ie the calimant) can rely directly on the directive to obtain redress from the public body (Francovich).

As you are aware the directive allows someone who has been 'lawfully' resident in a member state for a 'continous' period of 5 years. It does not however tell us what a lawful period is.

The UK Government in implementing the directive have taken this to mean in accordance with Regulation 7 of the directive only (eg. a workseeker, self employed, etc). Therefore it would appear to be the British governments view that you can only obtain right of residence after 5 years if you had been residing in accordance with the other parts of the directive. Is this correct??

If the UK government's view is correct then this would cause issues such as gaps between employment where the EU national has not claimed JSA or where the EU national was claiming Income Support prior to the directive coming in to force or if the EU national has resided here under Article 18 of the Treaty of Rome rather than exercising workers rights under Article 39. All of these may be lawfully resident, but did the EU legislation makers intend these to be included in the 5 year period or was their reasoning narrower?

In my view such periods should be included given the purpose of the EU which is to bring together closer the peoples of Europe. It therefore appears to me illogical that EU would want such periods ignored. However there is also the issue of proportionality. Is it fair that someone who has lived in a member state and never contributed to it should be entitled to claim benefits from that state?

In Lassel i believe that the issue was to do with periods before 2004. It was the DWP's position that periods before 2004 could not count. They however appear to have accepted now that they can if the residence was lawful under a previous directive i(n this case the 2000 directive). My understanding was that part of the claimants period was 1998 to 2000. It was held by the commissioner that to should count and DWP appealed to the CoA. The Coa Appear to have been of teh opinion that it should count however the Directive was Acte Clair (not clear) they have therefore referred the question under an article 234 reference to the European Court for clarification.

It is also my understanding that other cases with similar issues have also been referred.

I guess we will therefore not get an answer on what is lawful until the European court look at the matter and clarify what 'lawfully' means in this context and waht the purpose of th regulation was. (whenever that may be)

The ECJ will sooner or later decide what lawful residence means, and will hopefully cast aside the troublesome domestic definition. Claire may well have a point about the academic relevance of the RD (subject to my point regarding the PFA regs), but in the end, the role of the RD is to express the intention of the guiding EC Article or Articles of the Treaty. I am pretty sure they have direct applicability, when necessary. No one wants to want to waste time seeking compensation from the government, which appears to be the alternative remedy.

Claire, I am sorry for mixing up "direct application" for "direct effect". In return, I forgive you for suggesting that I said that Tribunals are lawmakers!. These little slips are easily made, as I am sure you will agree, irrespective of whether one is a lawyer!

Steve

One thing however that is certain is that domestic regulations can enhance the rights of the RD but may not reduce them. This is an area where there is a direct conflict of wording between the domestic regulations which say that the residence must have been "in accordance with these regulations" while as we know the Directive simply talks about lawful residence.

On the other hand the domestic regs do create enhanced rights for certain family members which are not in so many words in the Directive.

another example that will help understand "direct effect" is Byrne v MIB & Secretary of state
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2008/574.html&query=title+%28+byrne+%29&method=boolean

That is an RTA case, claim on the MIB Untraced drivers agreement for an infant. the MIB untraced drivers agreement didn't give infants (or others under an incapacity) the same rights as they would have at common law, or even under the MIB Uninsured Driver's agreement. therefore the Sec of STate was brought in and a claim made agains the Sec of State under Frankovich principles.

The court decided that the MIB Untraced drivers agreement did not give direct effect to the relevant directive (on harmonisation of laws on getting compensation in such circs!) and the Sec of State was therefore liable. the MIB Untraced Driver's agreement being the method by which the government tried to ensure that poeple go the compen they shoudl have had had the driver been traced.

The domestic regulations go astray in several respects. One being discussed here concerns the definition of lawful residence. Another is the treatment of self-employed people who become unemployed (the RD says some then have 'status of worker', the domestic regs deny them this status for RTR purposes). Clearly, seeking compensation from the government is a practical non-starter for many clients.

Claire, in order to avoid that dead end, what do think about invoking the Treaty Articles directly in these cases, as suggested in my earlier post? Would you agree with me that the Articles begat the RD, and the RD begat the domestic regs?

Steve

"Would you agree with me that the Articles begat the RD, and the RD begat the domestic regs?"

probably ...

beyond that, i think it's a subject for a specialist.

this is, of course, one of the many ways in which not allowing people more than legal help for their benefits matters falls down .. how the ordinary person is expected to deal with all of this is beyond me.

it needs a test case, argued by someone who has immersed him/herself in benefits law, domestic immigration law and european law...

I have a right to reside case going on at the moment. In early 2010 my client will have been here for 5 years.

In - Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen (1984) the ECJ, at paragraph 26, said:

“however , the member states' obligation arising from a directive to achieve the result envisaged by the directive and their duty under article 5 of the treaty to take all appropriate measures , whether general or particular , to ensure the fulfillment of that obligation , is binding on all the authorities of member states including , for matters within their jurisdiction , the courts . it follows that, in applying the national law and in particular the provisions of a national law specifically introduced in order to implement directive no 76/207, national courts are required to interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of article 189”.

Although this case is, of course, distinguished, does anyone agree that this would aid an argument that a tribunal should decide that the directive should take precedence over the more restrictive Immigration regulations and/or that the regulations can and should be read in such a way as to implement the aims of the directive, if indeed, the aims of the directive are simply 5 years lawful residence is sufficient to found a right to reside?

I think that in arguing on the basis of the Directive rather than the regulations before Tribunal you are likely to be knocking at an open door.

"does anyone agree that this would aid an argument that a tribunal should decide that the directive should take precedence"

Nevip I agree. The simple answer is yes.

It has been long established that where there is conflict that EU law should be prefered. This has been the case since before the UK itself was an accession state in 1972.

In NV Algemene Transporten Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Administration <1963> ECR 1<1> (frequently just referred to as Van Gend en Loos)(found the right spelling) which was to do with the application of charges by the Dutch goverment on imports. In this case the ECJ said

"The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields and the subjects of which comprise not only member states but also their nationals. Independently of the legislation of member states, community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the treaty, but also by reason of obligations which the treaty imposes in a clearly defined way upon individuals as well as upon the member states and upon the institutions of the community".

The case is authority for the proposition that articles of the EC treaty are directly effective (as distinct from directly applicable) in their application against the state.

In Costa V ENEL (1964) a case about an Italian National who objected the the nationalisation of a power company in which he had shares and refused to pay his electricity bill the ECJ stated.

"It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question"

In Simmenthal II <1978> ECR 629, there was a duty to set aside provisions of national law which are incompatible with Community law.

In Marleasing <1991> ECR I-7321, National law must be interpreted and applied, insofar as possible, so as to avoid a conflict with a Community rule

In Factortame I <1990> ECR I-2433, There is a duty on national courts to secure the full effectiveness of Community law, even where it is necessary to create a national remedy where none had previously existed. The House of Lords accepted supremacy of EU law in this case. This is important in context of British Parliamentary Sovereignty. Lord Bridge held this based on the grounds the UK knew of EC supremacy before they passed the EC Act 1972.

As you will be aware decisions of the higher court are binding on lower courts (although DWP guidence would have you believe otherwise, but thats another issue) therefore a Tribunal should prefer the EU law over the domestic law if there is a conflict. Not to do so would be an error in law in my opinion.

On the matter of what is Directly Applicable only Regulations can be. Directives can not, they can only ever be directly effective. Regulations can be both. Direct applicability is now taken to mean that regulations require no domestic implementation.

In Grad v Finanzamt Traunstein, a case involving VAT, the ECJ ruled that a directive could be directly effective, as they imposed an obligation to achieve a required result. As the ECJ held in Becker, another case involving VAT, "wherever the provisions of a directive appear...to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or insofar as the provisions define rights which individuals are able to assert against the State."

Directives are directly effective only if the prescribed date, by which the Member State should have implemented it, had passed (Pubblico Ministero v. Ratti). Additionally, in instances where the Member State has introduced the required legislation, but has done so defectively, the directive may still be directly effective, as in the Verbond van Nederlandse Ondernemingen (VNO) case

The question regarding the 5 year rule is has the UK government implemented it in a defective manner. If so then the claimant can rely directly on the provisions of the Directive rather than the Regulations.

I hope this make some sort of sense.

PS apologies for the error in my previous reply I said regulation whereas I should have said Article. Sorry I was tired.

all of which goes to show we all have to know everything...

I'm not sure how to take that last comment Claire

Thanks for confirming that guys.

"I'm not sure how to take that last comment Claire"

just that people advising on benefits have to know all sorts of other areas of law as well, is all! which is true, and as I've said before, makes it even more ridiculous that people can only get a couple of hours advice on a legal help if they're lucky and no representation at tribunals...

can you imagine some poor claimant in person dealing with those arguments? they're hard enough for us to wrap our heads round!

I remember the complexities of the Supplementary Benefit days and I sometimes think that they pale into insignificance by today's standards.

"I remember the complexities of the Supplementary Benefit days and I sometimes think that they pale into insignificance by today's standards"

yup.

The case for the direct applicability of the RD builds. My earlier point was that even if some still dispute this, the RD is the spokesperson for the relevant Treaty Article(s), which do have undisputed applicability.

I would not agree that you need to be a particular specialist to progress these kind of cases. Knowledge of relevant case law, and the ability to express a view clearly, is surely all that is needed. Some of the best case law has started from the imagination of very humble advocates. The attempted restrictions imposed by LSC contracting are of course relevant, but long cases could I think be catered for under the 'complex cases' provision, I think (or whatever its called).

Supplementary Benefit? What about Housing Benefit Supplement! That really shows my age.

Steve

Treaty Articles are of course Driectly Applicable and can be relied on directly if they confer a right on a individual i believe. Which begs the question can someone exercising a right under Art 18 treaty EC satisy the 5 year lawful residence condition under Art 16 directive 2004/38/EC?

I agree with you Steve i don't think you need to be a specialist to argue the application of EU law in benefit cases, but you do need to understand how it applies (e.g how its delevoped, the case law, etc) to put forward a decent arguement.

My understnading for Legal Help is that we can provide assistance beyond the inital two hours if sufficient benefit can be shown. Am i wrong?

Having read my reply from last night does it sound like a bad essay from a 1st year law student and if so would I have got a passing mark?

Matthew

"Having read my reply from last night does it sound like a bad essay from a 1st year law student and if so would I have got a passing mark?"

it explained the position and pointed us all at the relevant cases!