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Can the non-recourse to public funds spouse of a British citizen (who never exercised treaty rights) claim CA?
Can the non-recourse to public funds spouse of a British citizen (who never exercised treaty rights) claim CA?
Para 1 Part II of the Schedule Part II to Social Security (Immigration etc) Consequential Regs 2000.
“1.A member of a family of a national of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993[41].”
Would this include British citizens, and if it does, would they have had to exercise treaty rights at some point?
Vol 2, Social Security Legislation (pub. Sweet & Maxwell) at p 798 refer to CDLA/708/2007, which had held that the EEA national had to exercise treaty rights before their family members could benefit from that, and to a 2012 Northern Irish decision I could not find anywhere, which says there is no need to exercise treaty rights.
I think CDLA/708/2007 is wrongly decided.
JFP v DSD (DLA) [2012] NI Com 267 is a Northern Ireland Commissioner decision which declined to follow CDLA/708/2007.
I think precedent wise CDLA/708/2007 still takes precedence but presumably if a case went to the UT then permissions would be given.
HMRC guidance and DWP guidance does not mention the 2007 case and indicates that a family member of a UK citizen could come within that provision.
Finally, note that section 7(1) Immigration Act 1988 provides that people with EU rights don’t need leave to enter or remain- anyone who was family member of EEA national exercising treaty rights in the way suggested by CDLA/708/2007 would not be a person subject to immigration control under sec 115 of the Immigration and Asylum Act 1999 in any event.
See also the House of Lords decision in Szoma where the House of Lords considered the meaning of a different provision of the Schedule to the SS(I&A) (CA) Regs 2000 and noting that its plain meaning was wider than it needed to be given the international agreements to which it sought to give effect said the following:
29. Although these conclusions are sufficient to dispose of the appeal, I would add just this about the various benefits provided for by the 1999 Act to which, pursuant to paragraph 4 of the Schedule to the 2000 Regulations as I would construe it, temporarily admitted asylum seekers are entitled. For my part I accept that these benefits go further than is strictly required to meet the United Kingdom’s international obligations under ECSMA and CESC. For one thing those treaties make a distinction (not recognised in our law) between lawful presence and lawful residence, certain benefits having to be made available only to those lawfully resident in the state. For another thing the respondent may well be right in saying that the basic care and emergency needs of asylum seekers are catered for by other benefits than those described in section 115 of the 1999 Act so that the United Kingdom’s treaty of obligations would be met even if asylum seekers are excluded from the latter (although there are strong arguments to the contrary too). In my judgment, however, none of this is to the point: the court’s task is to construe the legislation as it stands, not as it might more stringently have been enacted.
my emboldening
In CDLA/708/2007 the claimant failed on two grounds. She wasn’t exercising treaty rights and her brother wasn’t classed as a family member for these purposes. I’ve not seen the NI decision. Has anyone got a link to it?
That seems a pretty comprehensive and reasoned decision. For me the clinching parts are
“Firstly, and as was noted above there is no requirement to adopt an interpretative approach based on purpose when the meaning of the legislative provisions is clear and unambiguous. Secondly, the Deputy Commissioner has adopted a very narrow and restrictive construction of the relevant exception based on rights arising in European Union law which, in my view, is not warranted” (para 45). That seems basic enough.
“It seems to me that if an interpretative approach based on purpose is required then the starting point should be the purpose of the legislative provisions themselves - matters of domestic United Kingdom law - rather than an approach based on rights arising in European Union law” (para 46). So far so good.
He then does on to say that the regs if read in conjunction with anything should be read in the context not of rights under EC Treaty law but within the context the development of “a more flexible and streamlined system of immigration control capable of providing an improved quality of service to British citizens and those who qualify to enter or remain in the United Kingdom, as well as strengthening the necessary controls on those who do not’ as outlined in the White Paper, Faster And Firmer – A Modern Approach To Immigration And Asylum.
And finally, he turns the commissioner’s argument back on him.
“As was noted above, I cannot agree that the provision is intended to give effect to the EEA Agreement. Nonetheless, I am also not sure of the weight attached to the conclusion that the plain interpretation of paragraph 1 is not permitted as it would have the effect of bestowing a right under the domestic law of the United Kingdom greater than that which could be claimed under EC law. The most significant European Union Directive on the free movement of rights – 2004/EC/38/EC – implements the rights of entry and residence of the citizens of the European Union. Article 37 of the Directive provides, however, that:
‘The provisions of this Directive shall not affect any laws, regulations or administrative provisions laid down by a Member State which would be more favourable to the persons covered by this Directive.’
Accordingly if rights of entry and residence are not to be construed restrictively, why should provisions relating to benefit entitlement be interpreted in terms of weight of favour accruing?
It seems to me that had the legislature intended that the definition of the excepted category of person should be construed in the restrictive manner suggested by the Deputy Commissioner then it would not have been difficult to draft the Regulations accordingly. The Immigration (European Economic Area) Regulations 2006, for example, which implement Directive 2004/38/EC contain a carefully drafted definition of ‘EEA national’ as a’… national of an EEA State’. In turn the definition of ‘EEA State’ excludes the United Kingdom” (paras 56, 57 and 58).