- Ministry of Justice, HM Courts & Tribunals Service, and Upper Tribunal (Administrative Appeals Chamber)
- 20 December 2016
- Last updated:
- 15 February 2017, see all updates
- Decision date:
- 17 March 2016
- European Union law and Human rights law
- European Union law - other and Human rights law - article 14 (non-discrimination)
- Markus, K
Upper Tribunal Administrative Appeals Chamber decision by Judge Markus on 17 March 2016.
Read the full decision in  AACR 38ws.
European Union law – application of Article 28 of the Qualification Directive to past presence test for disability living allowance for refugees
Human rights – Article 14 – whether 104-week rule for past presence in Great Britain discriminatory
The appellants were both children of refuges and had substantial disabilities. They each claimed disability living allowance (DLA) but the Secretary of State refused both claims because neither child had been present in Great Britain for 104 weeks and so failed to satisfy the past presence test (PPT) in regulation 2(1)(a)(iii) of the Social Security (Disability Living Allowance) Regulations 1991. They appealed through their mothers to the First-tier Tribunal (F-tT) arguing that the PPT unlawfully discriminated against them, contrary to Article 28 of EU Directive 2004/83/EC (the Qualification Directive) and Article 14 of the European Convention on Human Rights (ECHR). The F-tT dismissed their appeals, finding that, although the PPT discriminated against refugees and their family members as compared to other UK nationals, such discrimination was justified. They appealed to the Upper Tribunal.
Held, allowing the appeal, that:
- Article 28 of the Qualification Directive has direct effect in its application to refugees and their family members and it is the responsibility of the national courts and tribunals to protect the rights conferred by it (paragraphs 23 to 26);
- DLA is “social assistance” within Article 28 as the term is intended to embrace a wide range of welfare benefits so as to ensure that refugees and their families are treated equally within the benefits systems of Member States. But even if it is directed to a narrower group of subsistence benefits, DLA for these purposes is included (paragraphs 40 to 55);
- the correct comparator with refugees for these purposes is UK nationals as a whole. There is no doubt that the PPT places refugees and their families at a particular disadvantage compared to UK nationals. Refugees and their families are intrinsically less likely to satisfy the test than UK nationals (paragraphs 59 to 67);
- the proportionality of the PPT in its application to refugees attracts close scrutiny rather than the test of whether it is “manifestly disproportionate” (paragraphs 79 to 89).
- although the aim of establishing a sufficiently close link with the UK is a legitimate one, the Government has not established that the application of the PPT to refugees is a proportionate means of achieving that aim. The rationale for the PPT does not apply to refugees in the way that it does to other migrants. Most refugees will have firmly established their genuine link with the UK by applying for and obtaining refugee status and severing their links with their home countries, and refugees are particularly vulnerable as a class. The respondent has not shown that it had considered the position of refugees in the context of the PPT, nor why refugees could not be exempt from the test or why other conditions could not have been formulated to provide an opportunity for refugees to satisfy the aim by other means, nor that making different provision for refugees would adversely affect the integrity of the benefits system (paragraphs 91 to 103);
- the application of the PPT to refugees is not justified in the context of Article 14. The PPT discriminates against refugees and their family members because they are disadvantaged by the application of apparently neutral criteria and because the test failed to recognise that refugees are in a materially different situation from others to whom it applies, and the discrimination is not justified (paragraphs 104 to 110);
- the F-tT’s decision is set aside and the decision re-made; in doing so, the offending provision in the regulations is disapplied with the consequence that at the relevant time the appellants satisfied the statutory residence and presence conditions for DLA; the Secretary of State must determine their claims accordingly.
Published: 20 December 2016
Updated: 15 February 2017
Decision date: 17 March 2016
- Decision selected for reporting as  AACR 38.
- First published.