GE v Secretary of State for Work and Pensions (ESA): [2017] UKUT 145 (AAC); [2017] AACR 34

Upper Tribunal Administrative Appeals Chamber decision by Judge Poynter on 28 March 2017.

Read the full decision in [2017] AACR 34ws.

Judicial Summary

Residence and presence conditions – right to reside – residence for the initial 3 months and as a jobseeker counts towards the subsequent acquisition of a permanent right of residence under domestic UK law.

Residence and presence conditions – right to reside – whether a claimant satisfies the right to reside test is assessed down to the date of the decision not as at the date of claim.

The claimant, a Spanish national, moved to the United Kingdom (UK) on 14 April 2010. Thereafter, her residence fell into three distinct periods: (1) from 14 April 2010 to 30 April 2010 she made no claim for any social security benefit; (2) from 1 May 2010 to 19 March 2015 she was paid jobseeker’s allowance (JSA) and also did some part time work and (3) from 20 March 2015 to 15 April 2015 she ceased to receive JSA and claimed employment and support allowance (ESA). Her claim for ESA was refused by the Secretary of State on the basis that she did not have a right to reside in the UK. The First-tier Tribunal (F-tT) rejected her appeal, holding that she had never been in effective and genuine work in the UK, and therefore could not establish retained worker status under regulation 6(2)(a) of the Immigration (European Economic Area) Regulations 2006, and that she had not been resident in the UK for five years at the date she claimed ESA. (It did not consider whether she had a permanent right of residence.) The claimant appealed to the Upper Tribunal and the two main issues before it were whether at the date of her claim the claimant was a former worker who had retained that status and whether she had acquired a right of permanent residence in the UK before the date of the Secretary of State’s decision.

Held, allowing the appeal, that:

  1. whether a claimant satisfied the right to reside test was assessed down to the date of the decision, so that if the claimant did not have a relevant right of residence at the date of claim but acquired one before the date of the decision, then the test was satisfied from the date the right was acquired (paragraphs 52 to 58);

  2. although a right of residence as a jobseeker - in the European Union sense of someone who was seeking work but was neither a worker, nor a person who had retained worker status - did not count towards the continuous five-year period of legal residence required to attain a permanent right of residence under EU law, it did count as residence “in accordance with” the Immigration (European Economic Area) Regulations 2006 and could therefore, as a matter of domestic UK law only, give rise to a permanent right of residence under regulation 15(1)(a) (paragraphs 61 to 74);

  3. as the words “in accordance with these Regulations” were to be given their natural meaning, even though the right of residence for an initial period of three months did not support an entitlement to benefit during those three months, it did count towards the subsequent acquisition of a permanent right of residence under regulation 15(1)(a) because it was “in accordance with” regulation 13 of the 2006 Regulations (paragraph 75).

The judge set aside the decision of the F-tT and remitted the appeal to a differently constituted tribunal to be re-decided in accordance with his directions.

Published 25 April 2017
Last updated 24 January 2018 + show all updates
  1. Decision selected for reporting as [2017] AACR 34
  2. First published.