The Right to Reside Test
1.
The “right to reside test” was introduced with effect from 1 May
2004 by the Social Security (Habitual Residence) Amendment
Regulations 2004 (“the 2004 regulations”). These amend the
regulations setting out the habitual residence test for income-related
benefits, by inserting the right to reside test.
2.
The right to reside test is set out in the following regulations:
a) Regulation 21(3G) of the Income Support (General) Regulations
1987;
b) Regulation 85(4B) of the Jobseeker’s Allowance Regulations
1996;
c) Regulation 7A(4B) of the Housing Benefit (General) Regulations
1987;
d) Regulation 4A(4B) of the Council Tax Benefit (General)
Regulations 1992;
e) Regulation 2(2) of the State Pension Credit Regulations 2002.
3.
Each of the above regulations is for practical purposes identical,
and provides that:
“no person shall be treated as habitually resident in the United
Kingdom, the Channel Islands, the Isle of Man or the Republic of
Ireland if he does not have a right to reside in the United Kingdom, the
Channel Islands, the Isle of Man or the Republic of Ireland.”
In this submission the above provision is referred to as the “right to
reside test”. Similar provisions have also been introduced for Child
Benefit and Child Tax Credit.
4.
This submission addresses three points in relation to the right to
reside test:
a) the meaning of the phrase “right to reside”;
b) whether the right to reside test is incompatible with EU
legislation, specifically the prohibition of discrimination on the
grounds of nationality provided for in Article 12 of the EC Treaty;
c) the meaning of the phrase “no person shall be treated as
habitually resident”.
The meaning of the phrase “right to reside”
5.
None of the regulations set out in paragraph 3 defines the term
“right to reside”. In the absence of any definition, we would submit
that the term “right to reside” should be given its ordinary, everyday
meaning.
6.
Both the City Council, in relation to housing/council tax benefit, and
the Secretary of State, in relation to income support, argue that
“right to reside” is to be interpreted in accordance with the
Immigration (European Economic Area) Regulations 2000 (“the
EEA Regulations”). Regulation 14 of the EEA Regulations provides
that EEA nationals are “entitled to reside” in the UK if they are a
“qualified person” or a family member of a “qualified person”.
“Qualified person” is defined in Regulation 5 of the EEA
Regulations. Regulation 5 is set out in the decision maker’s
submission, and broadly speaking includes those who are, or have
been, economically active in the UK, students and self-sufficient
persons.
7.
It is accepted that the appellants in these cases do not generally fall
within the definition of “qualified person”. Where it is submitted that
an appellant does fall within the definition of “qualified person” this
will be set out in the specific submission relating to that appellant.
8.
It is however submitted that the phrase “right to reside” in the
benefit regulations is not synonymous with the phrase “entitled to
reside” in the EEA Regulations.
9.
We would submit that if the “right to reside” for benefit purposes
was to be defined as being the “entitlement to reside” provided for
in the EEA Regulations then Parliament could easily have specified
this. We would also submit that the use of slightly different language
supports the proposition that “right to reside” is to be given its
ordinary, everyday meaning, and is not to be defined by reference
to the EEA Regulations.
10.
All EEA nationals have the right to enter the UK. Under Regulation
12 of the EEA Regulations:
12. - (1) Subject to regulation 21(1), an EEA national must be
admitted to the United Kingdom if he produces, on arrival, a
valid national identity card or passport issued by an EEA
State.
11.
Regulation 21(1) allows for entry to be refused only on grounds of
public policy, public security or public health. Regulation 23 sets out
that these grounds do not include “economic ends”. It is clear
therefore that an EEA national cannot be refused entry to the UK
solely on the grounds that they are likely to become a burden on
public funds.
12.
Regulation 21(3) allows for the removal of EEA nationals:
21. - (3) A person may be removed from the United Kingdom –
(a) if he is not, or has ceased to be –
(i) a qualified person; or
(ii) the family member of a qualified person;
(b) if he is a qualified person or the family member of
such a person, but the Secretary of State has decided
that his removal is justified on the grounds of public
policy, public security or public health.
13.
It is clearly for the Secretary of State for the Home Office or for an
immigration officer to make decisions under Regulation 21(3). We
would submit that since Regulation 21(3) provides that a person
“may” be removed, there is clearly discretion as to whether they
should actually be removed. In Grzelcyck (Case C-184/99) the ECJ
held that a residence permit cannot automatically be withdrawn
because of a reliance on social assistance, and we would submit
that on the same principle a person cannot be automatically
removed if they claim social assistance such as income support.
We would submit that until a decision to remove has been made an
EEA national cannot be removed from the UK. Since EEA nationals
“must be admitted to the UK” and cannot be removed until a
decision has been taken that they should be removed, we would
submit that an EEA national has the right to live in the UK until the
Home Office decide to remove them.
14.
We would further submit that, if someone has the right to live in the
UK, then on the ordinary meaning of the word “reside”, they do
have the right to reside in the UK. Accordingly we would submit that
EEA nationals have the right to reside until the Home Office decide
to remove them. As no such decision has been taken in the cases
of these appellants we would submit that they do have the right to
reside in the UK, and are entitled to benefit subject to the normal
conditions.
Article 12 of the EC Treaty
15.
Article 12 of the EC Treaty provides that:
Within the scope of application of this Treaty, and without prejudice
to any special provisions contained therein, any discrimination on
grounds of nationality shall be prohibited.
16.
Even if it were not accepted that the appellants have the right to
reside, we would submit that they are lawfully present in the UK. As
indicated above, EU nationals cannot generally be refused entry,
and can only be removed following proper consideration by the
Home Office. We would submit that until the Home Office make a
decision to remove the person is lawfully resident in the UK under
domestic legislation, even if they do not have a right to reside under
EU law.
17.
There is support for the proposition that the appellants are lawfully
present in the UK in the Court of Appeal’s judgement in R v City of
Westminster ex p. Castelli (1996) 28 HLR 616 CA. The appellants
in that case had been “qualified persons” under Regulation 5 of the
EEA Regulations, but had ceased to be “qualified persons”. The
Court of Appeal held that people in such a situation could not be
regarded as “not lawfully here” unless the Secretary of State for the
Home Office had informed them that they were to be removed. In
the judgement the Court approved a passage from the judgement in
R v Hillingdon London B C ex p. Streeting [1980] WLR 1425 in
which it was held that “…he should be a person who is lawfully
here, that is to say, a person who does not require leave to
enter…”. It is clear from Reulation 12 of the EEA Regulations that
no leave to enter is required by EEA nationals. We would submit
that these appellants cannot be regarded as “not lawfully here” and
accordingly must be lawfully present in the UK.
18.
The right to reside test applies to all claimants, including British
citizens. In practice British citizens have the right to reside in the UK
and will always pass the test. Because the right to reside test
applies to the common travel area of the UK, the Republic of
Ireland, the Channel Islands and the Isle of Man, Irish citizens will
also always have the right to reside, by virtue of their right to reside
in the Republic of Ireland.
19.
The DWP guidance to decision-makers argues that the right to
reside test “does not discriminate on the grounds of nationality
because it applies to all persons claiming income related benefits”.
However, although the right to reside test may be applied to British
and Irish citizens, we would submit that it is in their case merely a
notional test, which cannot result in a refusal of benefit. We would
submit that this is indirect discrimination on the grounds of
nationality, in that British and Irish citizens are intrinsically more
likely to satisfy the right to reside test than nationals of other
Member States.
20.
In Commission v Belgium (Case C278/94) the ECJ held that “a
provision of national law must be regarded as indirectly
discriminatory if it is intrinsically liable to affect migrant workers
more than national workers and if there is a consequent risk that it
will place the former at a particular disadvantage. It is not necessary
to find that the provision in question does in practice affect a
substantially higher proportion of migrant workers. It is sufficient
that it is liable to have such an effect”. That case concerned the
rights of workers, but we would submit that the principle applies
equally to other groups.
21.
In Trojani (Case C-456/02) the ECJ held that “a citizen of the Union
who is not economically active may rely on Article 12 EC where he
has been lawfully resident for a certain time”. It further held that
“national legislation such as that at issue in the main proceedings,
in so far as it does not grant the social assistance benefit to citizens
of the European Union, non-nationals of the Member State, who
reside there lawfully even though they satisfy the conditions
required of nationals of that Member State, constitutes
discrimination on grounds of nationality prohibited by Article 12 EC.”
The Secretary of State refers to the fact that Mr Trojani held a
residence permit and says that, as these appellants do not hold
residence permits, Trojani cannot assist them. As the ECJ noted,
Mr Trojani’s residence permit simply “attested” to his lawful
residence, it did not confer lawful residence. We would submit that
these appellants are lawfully resident as argued above. As such
they can rely on Article 12 of the Treaty.
22.
In Martinez Sala (Case C-85/96) the ECJ considered a claim for
benefit from a Spanish national living in Germany, who had no right
to reside there under EU law, but who was lawfully resident under
German national law. The Court held that, because Ms Martinez
Sala was lawfully resident in Germany, she had a right under Article
12 to be treated equally with German nationals in relation to her
entitlement to social assistance. We would submit again that these
appellants are lawfully resident under UK law, and can rely on
Article 12 of the Treaty.
23.
In Grzelczyk (Case C-184/99) the ECJ held that “Articles 6 and 8 of
the Treaty preclude entitlement to a non-contributory social benefit,
such as the minimex, from being made conditional, in the case of
nationals of Member States other than the host State where they
are legally resident, on their falling within the scope of Regulation
No 1612/68 when no such condition applies to nationals of the host
Member State.” (Articles 6 (discrimination) and 8 (Citizenship of the
Union) are now renumbered as Articles 12 and 17 respectively). We
would submit that the right to reside test in effect requires nationals
of other member states to fall within Regulation 1612/68 since that
regulation applies to the same people who would be “qualified
persons” within the meaning of the EEA Regulations.
24.
The Secretary of State in his additional submission argues that the
right to reside test does not discriminate on nationality grounds. He
refers to the cases of Sarwar and Getachew and Collins in all of
which it was held that the habitual residence test was not
incompatible with EU law. However, we would submit that these
cases can be distinguished since in each case only the pre-1 May
2004 habitual residence test was considered and not the right to
reside test. The Secretary of State also refers to the case of D. That
case concerned a Latvian national. The Accession Treaty by which
Latvia joined the EU provides for derogations from certain
provisions of EU law. The Court in D held that the 2004 Regulations
were a permissible derogation. They did not have to consider
whether the 2004 Regulations would have been discriminatory had
the derogation not applied. We would therefore submit that the case
of D can also be distinguished, and did not deal with the point at
issue in these cases.
25.
We would submit that these appellants are lawfully resident in the
UK under national law, whether or not they have the right to reside
under EU law, and accordingly must be treated equally with British
and Irish citizens. Accordingly we would submit that the right to
reside test is incompatible with Article 12 of the EC Treaty, and
cannot be applied to refuse benefit to EU nationals. Accordingly we
would submit that these appellants are entitled to benefit subject to
the normal conditions of entitlement.
The meaning of the phrase “no person shall be treated as habitually
resident”
26.
The right to reside test provides that “no person shall be treated as
habitually resident” unless they have the right to reside. The phrase
“shall be treated as” appears throughout Social Security legislation.
The phrase generally refers to someone who is not in a specified
situation having their benefit entitlement determined as if they were
in that situation.
27.
For example, in the context of income support, Regulation 5(3)
provides that a person shall be treated as engaged in remunerative
work if they are not actually engaged in work because of a
customary holiday, and Regulation 5(4) similarly treats a person as
engaged in work for the first week that they are not so engaged by
virtue of being on strike. Regulation 6 sets out a wide variety of
situations in which someone who is engaged in remunerative work
shall be treated as not being so engaged. Regulation 42 provides
for treating a claimant as receiving income which he does not in fact
receive and Regulation 51 provides for treating a claimant as
possessing capital which he does not in reality possess. At several
points the Regulations also refer to claimants who are, or who are
treated as being, in a specified situation then being treated in a
particular way. For example Regulation 5(5) refers to a claimant
“who was, or was treated as being, engaged in remunerative work”
and Regulation 5(6) refers to a person who “is engaged or treated
as engaged in remunerative work”.
28.
In the context of housing benefit, Regulation 5(5) provides for a
claimant being treated as occupying two dwellings simultaneously
as his home even though in fact it is only possible to occupy one
dwelling. Regulation 5(6) similarly treats a person as occupying a
dwelling as his home for a period before he has in fact occupied it.
Regulation 7 sets out a wide variety of situations in which someone
who is liable to pay rent shall be treated as not being liable.
29.
The Secretary of State argues that there is no “technical meaning”
to the words “treated as” in this context. We do not see how the
Secretary of State can argue that the words ”treated as” have no
“technical meaning”, when he is clearly arguing that the words “right
to reside” in the same sentence do have a technical meaning, in
that he argues that they mean the same as a different form of words
in the EEA Regulations. However, we are not suggesting that
“treated as” should be given a “technical meaning”. We would argue
that the normal everyday meaning of the words is that someone
who is not in a specified situation shall be regarded as if they were
in that situation.
30.
We would therefore submit that the wording of Regulation 21(3G)
only means that someone who is not, in fact, habitually resident
shall not be treated as if they were unless they have a right to
reside. The appellants do not need to be treated as habitually
resident because they are habitually resident. Accordingly the right
to reside test does not apply to the appellants at all.