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Lounes and dual nationality

 

Paul_Treloar_AgeUK
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We have a Bulgarian couple living in UK with their dual nationality daughter, whose Pension Credit claim has been turned down as they cannot derive a right to reside as her family member due to the dual nationality.

CPAG Migrants Handbook says case of Lounes is awaiting a decision from the ECJ as to whether this approach oversteps the mark or not (p.171).

Anyone know if/when a decision is likely to be forthcoming, and/or have any ideas of ways we migth argue this? As it stands, it looks like there is nothing at all they can do. Daughter working 70 hours or so a week to support them all, father’s AA claim also hit problems as he receives Bulgarian pension it seems.

Any ideas gratefully received.

     
shawn
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ECJ site suggests that it was lodged on 13 May 2016, but just says ‘Case in progress’

     
Daphne
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ECJ has given opinion

Also in guardian

Accordingly, the Court holds that a non-EU national in Mr Lounes’ situation is eligible for a derived right of residence under Article 21(1) TFEU, on conditions which must not be stricter than those provided for by the directive for the grant of such a right to a thirdcountry national who is a family member of an EU citizen who has exercised his right of freedom of movement by settling in a Member State other than the Member State of which he is a national.

     
Paul_Treloar_AgeUK
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Arguably then, my Bulgarian couple could derive a right to reside from their daughter now do you think?

     
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Yes - I think Lounes has to be read as applying to cases other than ones involving third country nationals (even though that is what it was about).

     
Paul_Treloar_AgeUK
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Thanks mate, will try to dig out case and get back to adviser.

     
Paul_Treloar_AgeUK
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One more question, as I haven’t had a test case affecting client for a long time.

Presumably, the anti-test case rules mean that we’re only looking at a new PC claim here?

Or is there any merit in seeking a late MR of a refusal of the PC claim earlier this year? And appeal if/when that is refused?

Any thoughts gratefully received.

     
Stainsby
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Nothing to stop you going down the late MR/Appeal route

If they refuse the MR solely because it is late you can still appeal direct to HMCTS (See the 3JP’s decision in R(CJ) and SG v SSWP (ESA) [2017] UKUT 0324 (AAC))

I have a similar (albeit on time appeal) case that the FtT has stayed pending the ECJ judgement in Lounes

      [ Edited: 15 Nov 2017 at 07:04 pm by Stainsby ]
Elliot Kent
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Stainsby - 15 November 2017 07:01 PM

Nothing to stop you going down the late MR/Appeal route

If they refuse the MR solely because it is late you can still appeal direct to HMCTS (See the 3JP’s decision in R(CJ) and SG v SSWP (ESA) [2017] UKUT 0324 (AAC))

I have a similar (albeit on time appeal) case that the FtT has stayed pending the ECJ judgement in Lounes

I think Paul is anticipating the “anti-test case rule” from s27 Social Security Act 1998.

If Paul’s client puts in an MR now, then if the rule applies, the DM would be bound by s27 to ignore Lounes when making their decision - with the result that the claim would fail. The FtT would also be bound (per then-Commissioner Jacobs in CH/532/2006).

However, I don’t know that the anti-test case rule would apply in this case because Lounes was not an “appeal” arising out of a decision of an “adjudicating authority” as those terms are defined in the Social Security Act. It was a judicial review of an immigration decision. It probably isn’t a “relevant determination” on a strict reading of s27, which is perhaps what the provision calls for.

     
Paul_Treloar_AgeUK
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Exactly Elliot. I’d hate to think that they’ve lost the possibility of securing backdated PC but if the late MR/appeal route is bound to fail, then there’s no point trying this.

At the moment, I’ve advised the adviser to stick in a new claim asap, but I’m in two minds about whether it’s worth their time and effort on the late MR?

     
Martin Williams
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Paul- as Elliot said a claimant who wishes to rely on Lounes is not going to be caught by the anti-test case rules- it simply is not covered by these as it is not a social security decision. The only way it could be caught would be possibly if you were having to rely on “official error” (as a decision that is only shown to be wrong by this case would not be a decision made in consequence of official error).

But if, as seems to be the case, you actually have a decision refusing SPC within the last 13 months then you simply (1) seek a late MR and (2) appeal any refusal.

Tribunal is then bound to apply the law as declared by the CJEU in Lounes.

Also- here is a link to the actual judgment http://curia.europa.eu/juris/document/document.jsf?text=&docid=196641&pageIndex=0&doclang=en&mode=lst&dir;=&occ=first&part=1&cid=1483346 (that Guardian article seemed to have a link to the opinion and not the judgment initially- not sure if now fixed.

      [ Edited: 16 Nov 2017 at 10:51 am by Martin Williams ]
Paul_Treloar_AgeUK
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Brilliant, nice one Martin, thanks very much, I’ll let the adviser know asap.

     
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Ha! The irony…....

Have just picked up a case where the client lost at FtT on Wednesday - would have won if Lounes considered (judgement issued the day before!).