Social Security Case Law - Spring 2024

Headnote

Universal Credit case.  A third country national from Cambodia was granted entry clearance under the Appendix EU (Family Permit) route to join his partner in Northern Ireland.  The Commissioner had to decide if the Applicant could establish a right to reside for Universal Credit purposes.

Background

The Applicant is a Cambodian national who claimed Universal Credit from 2021.  The Applicant’s partner had previously been awarded Universal credit as a single claimant from 2020.  Following the Applicant’s claim he became part of a joint claim with his partner.  The Applicant’s partner who had previously lived with the Applicant in Cambodia for a year was a ‘person of Northern Ireland – a British, Irish, or dual British and Irish citizen who was born in Northern Ireland and who, at the time of their birth, had at least one parent who held British, Irish or dual citizenship.  The Applicant also made a discrimination claim.  The Applicant’s claim was disallowed on the basis that the Applicant did not satisfy the habitual residence test and was a person subject to immigration control.  The Applicant requested a mandatory reconsideration which was unsuccessful.  The Applicant then appealed the decision.

The Appeal Tribunal found that the Applicant: (1) had been granted entry clearance to join his partner in the UK in August 2021 under the Appendix EU (Family Permit) route (2) had a confirmation of his application to the Home Office under the EU Settlement Scheme dated in September 2021 (3) was in employment for 35 hours per week.  Further, the Tribunal found that the Applicant’s partner was not a ‘qualified person’ under EU law and so the Applicant could not derive a right to reside from her, and that the Applicant was to be treated as ‘not being in Northern Ireland’.  As the Applicant’s appeal was refused by the Tribunal, he sought leave to appeal from the Social Security Commissioners.

Legal Issue

The Commissioner had to determine if the Applicant was ‘in Northern Ireland’ at the date of his claim, and at the date of decision.

Relevant Legislation

Article 9 of the Welfare Reform (NI) Order 2015 (basic conditions for universal credit)

Regulation 9 of the Universal Credit Regulations (Northern Ireland) 2016 (persons treated as not being in Northern Ireland).

Decision

The Commissioner granted leave to appeal, but the appeal was disallowed.

The Commissioner indicated that a possible route for the Applicant to satisfy the habitual residence test is through the exceptions to the general requirement – Regulation 9(4) of the Universal Credit Regulations.  However, the Commissioner found that the exception did not assist the Applicant.

‘One exception that has possible relevance at first sight is where the person is a ‘family member’ of a relevant person of Northern Ireland, and has leave to enter the UK under Appendix EU of the Immigration Rules, where the person of Northern Ireland is a qualified person under regulation 6 of the Immigration (European Economic Area) Regulations 2016 (EEA Regulations) or would be, but for the fact of not being an EEA national.’ (para 26).

‘In this context, however, ‘family member’ has the meaning given in regulation 7(1) of the EEA Regulations.  This is restricted to A’s spouse or civil partner; A’s direct descendants, or the direct descendants of A’s spouse or civil partner who are either (1) aged under 21, or (2) dependants of A, or of A’s spouse or civil partner; and to dependent direct relatives in A’s ascending line, or in that of A’s spouse or civil partner.  The Applicant is not a ‘family member’ in this context but would be an ‘extended family member’ under the definition in regulation 8(5) of the EEA regulations as a partner in a durable relationship who is not a civil partner.  It appears to me that regulation 9(4) has no application therefore.’ (para 27)

The Commissioner further consideration whether Regulation 9 could assist the Applicant but found that it could not.  The Commissioner stated:

‘..in order to be habitually resident, the Applicant must satisfy the requirement under Regulation 9(2) that he has a right to reside in the UK, Channel Islands, Isle of Man or Republic of Ireland.  However, paragraph 9(3) further excludes certain categories of right to reside from the scope of paragraph 9(2).  By paragraph 3(d), this excludes a person having been granted limited leave to enter or remain in the UK under the Immigration Act 1971 by virtue of (1) Appendix EU to the immigration rules made under section 3(2) of that Act, (2) Zambrano rights – which do not arise here; or (3) having arrived in the UK with an entry clearance that was granted under Appendix EU (Family Permit) to the immigration rules under section 3(2) of that Act.  I understand that the Applicant was granted entry clearance under the Appendix EU (Family Permit) – or Regulation 9(3)(d)(iii) route and that he does not have a right to reside on that basis.  Because he was granted entry clearance under the Regulation 9(3)(d)(iii) route, as opposed to under the Regulation 9(3)(d)(i) route, the exceptions provided for in paragraph 9(3A) do not apply.  Therefore, I do not see any basis in law for the Applicant claiming to have a right to reside in the UK.’  (Para 28).

The Applicant’s discrimination claim was not upheld.