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Slezak v Secretary of State

2017-09-05 16:15:17

LSA recently acted for the pursuer in a significant case at the Court of Session concerning access to benefits for EEA citizens. The case of Slezak v Secretary of State is a welcome development for children from EEA countries living in the UK without their parents and seeking access to support – support to which British children in otherwise matching circumstances would be entitled.

What was the case about?

This appeal was brought by LSA on behalf of a young woman who was originally from Poland. Moving to the UK at the age of 15 without her parents, the appellant attended secondary school here (first in Newcastle, then in Glasgow). Some months later her mother joined her in Scotland and began seeking work. Not managing to secure any employment, however, her mother subsequently returned to Poland.

The appellant then applied for Income Support; but her application was refused. She turned to the Tribunal to lodge an appeal. Two hearings later (one success at the First-Tier Tribunal, and one defeat at the Upper Tribunal) her case arrived at the Court of Session.

The Court noted that the rules governing who is entitled to Income Support are the Income Support (General) Regulations 1987. Under these rules, certain categories of people are deemed to be ‘Persons from Abroad’, and are excluded from the Income Support scheme. To work out whether or not the appellant was a ‘Person from Abroad’, it was necessary to consider the type of residence right she held in the UK.

Although it is often supposed that citizens of EEA countries such as Poland have an unlimited right to remain in the UK, there are in fact certain rules regulating their residence (which kick in once they have been in the UK for three months). The main ways in which a person from an EEA country can gain a UK residence right are through being a worker, a jobseeker, a student, or a self-sufficient person, or through being a family member of someone in one of these categories.

At the time of this appeal, these rules were set out in the Immigration (European Economic Area) Regulations 2006 (these regulations have since been replaced, but the relevant rules remain essentially the same). The Court had to decide which paragraph of these regulations the appellant’s right to reside in the UK arose under, and then ask: was it a type of residence right that made someone a ‘Person from Abroad’ under the Income Support rules?

What did the Court decide?

The Income Support rules said that someone would be a ‘Person from Abroad’ if their right to be in the UK was solely on the basis of being a jobseeker, or, crucially, on the basis of being a family member of a jobseeker. The Upper Tribunal had reasoned that the appellant’s right to reside arose on this basis, as she had lived in the UK with her mother while the latter sought work. (For anyone following along at home with the Regulations, this would have meant her right to reside arose under Regulation 14(2) of the 2006 Regulations.) She was, therefore, excluded from Income Support.

However, the appellant argued that this was wrong. She did not have a right to reside by being the family member of a jobseeker in the UK under Regulation 14(2), she argued, because her mother no longer was a jobseeker in the UK. Her right of residence came because she fell into the category of a ‘family member who has retained the right of residence’ – a type of residence the Income Support rules said nothing about excluding. (Again, for those interested in the specific regulations, people in this category are defined at Regulation 10 and granted a right of residence in Regulation 14(3).) As the child of someone had been a jobseeker in the UK but had left, the appellant argued she was better matched with this category.

The Court agreed, and decided that, when the appellant’s status was considered properly, the rules did not classify her as a ‘Person from Abroad’ and she was not excluded from Income Support.

The Court ultimately reached this decision simply by looking at the plain wording of the regulations. However, a number of policy-based arguments were made. The Government argued that reading the rules in this way meant that parents from EEA countries could gain increased rights by abandoning their children in the UK; this would be illogical, it said, and would encourage the break-up of families. The Court decided, however, that parents were unlikely to be inspired to follow this drastic course of action simply in order for their children to gain Income Support. Furthermore, children who are abandoned are the very ones who need Income Support, and favouring them is in fact perfectly logical. Finally, the Court agreed with the appellant that the requirement of EU law not to discriminate by nationality was relevant. Children in the appellant’s situation should, it held, be put in the same position as British children who are still at school but living without their parents.

Who might be affected by this decision?

The case clearly has implications for children from EEA countries who are living unaccompanied in the UK. Indeed, any EEA citizen who is still in education, and who is the family member of an EEA citizen who has left the UK, may find themselves eligible for Income Support.

The case is a great example of teamwork, with the original application and Tribunal representation being undertaken by a Welfare Rights Officer, Steven Craig of the Queen’s Cross Housing Association. Lesley Irvine, Advocate, was instructed by LSA at the Court of Session.