22/05/2009

Straws in the wind

Yesiloz v London Borough of Southwark [2009] EWCA Civ 415 was concerned with whether a Turkish asylum seeker was entitled to housing benefit.

Ms Yesiloz arrived in the UK in the late 1990s and claimed asylum.  She moved into premises in Camden and claimed HB on 11 April 2006.  Her claim was rejected on the ground that she did not have a right to reside in the UK.  In January 2007 an Appeal Tribunal held that she was entitled to HB, but the Social Security Commissioner allowed the local authority’s appeal in June 2008.  Ms Yesiloz then appealed to the Court of Appeal.

In February 2008 she was granted exceptional leave to remain and was then succesful with a new claim for HB, so at issue was her entitlement from April 2006 to February 2008.

Legislation

The Immigration and Asylum Act 1999, s. 115 excludes entitlement to benefits, including HB, for persons subject to immigration control, “unless he falls within such category or description, or satisfies such conditions, as may be prescribed”: s. 115(3).

Regulation 2(1) of the Social Security (Immigration & Asylum) Consequential Amendments Regulations 2000 (SI 2000/636) states that s. 115 does not apply to people within four categories.  The fourth category includes people who are nationals of states that have ratified the European Convention on Social and Medical Assistance (ECSMA) and are lawfully present in the UK.  Turkey has ratified ECSMA.  Therefore Ms Yesiloz is saved by the Regulations from disentitlement under s. 115 of the 1999 Act.

However, that is not the end of her problems as it does not automatically qualify her for HB under s. 130 of the Social Security Contributions & Benefits Act 1992.  At the material time this was governed by Housing Benefit Regulations 2006 (SI 2006/213).  Regulation 10 of these Regulations provides that an individual who has no right to reside in the UK shall not be treated as habitually resident.  They are therefore a “person from abroad” for the purposes of Paragraph 1 of Regulation 10 and should not be treated as liable to make payments in respect of a dwelling.  It follows that they would not therefore be entitled to HB.

Paragraph 3B of Regulation 10 specifies a number of categories of people who should not be classified as “persons from abroad”.  Nationals of ECSMA countries are not included in this list.

So the central issue is whether Ms Yesiloz had a right to reside.

Right to Reside

It was accepted by Camden that Ms Yesiloz was lawfully present in the UK, but in Abdirahman v SSWP [2007] EWCA Civ 657 the distinction between a right to reside and a right to admission (or lawful presence) was drawn by Lloyd LJ, when considering a different set of regulations:

It seems to me plain that UK law makes a distinction between a right to reside … on the one hand, and any lesser status, in particular that of an EEA national who is in this country having entered lawfully, has committed no breach of immigration law, but is not a qualified person and therefore does not enjoy the benefit of … a “right to reside”.

On behalf of Ms Yesiloz it was argued that as people in the first three categories identified in the 2000 Regulations had a right to reside, then people in the fourth category should be treated the same way.  The exclusion of ECSMA nationals from the groups of people who should not be classified as persons from abroad was accidental and there was no public policy reason to exclude those in the fourth category from having the right to reside.  Pill LJ disagreed with this line of reasoning:

31.  Whether the appellant has a right to reside in the United Kingdom depends on the construction of the appropriate statute or statutory instrument, in this case regulation 10 of the 2006 Regulations. The appellant must establish that she has a right to reside. Otherwise she is a “person from abroad” and not entitled to housing benefit. Regulation 10(3B) specifies many categories of persons who are not “persons from abroad”. It was, and was intended to be, a comprehensive list. The need, in this context, for a clear and specific classification is obvious.

32.  The categories do not include nationals of states party to ECSMA. In those circumstances, such persons cannot be said to have a right to reside either because of their position in the schedule to the 2000 Regulations, or because the introduction of the concept of right to reside was primarily aimed at nationals of A8 states, or because there is no powerful reason in public policy for depriving them of the right to reside, or by reason of any combination of those factors. The inclusion of paragraph 4 in part 1 to the schedule to the 2000 Regulations, whatever its purpose, does not, in my view, carry for paragraph 4 persons the implication of entitlement to a right to reside.

33.  The points relied on are straws in the wind and, well though Mr Berry has attempted to make the most of them, they do not permit the words “right to reside” in regulation 10 of the 2006 Regulations to be construed so as to include the appellant.

Smith and Wall LLJ agreed with Pill LJ.  Appeal dismissed.

chief is a barrister in the big city. he specialises in public law, landlord & tenant, football and rock 'n' roll (the last two are only when his clerks aren't watching). he sometimes pops by here, but not as often as he'd like. he will occasionally eschew capital letters. the reasons for this odd affectation are lost in the mists of time.

2 Comments

  1. The.Dark.One

    Begs the question why it got so far and public money was wasted on it

    Reply
  2. S

    The whole concept of “right to reside” in European law is, contrary to what the Court of Appeal would lead us to believe, incredibly hard to define and there are valid arguments to be run challenging the rather restrictive approach held in Abdirahman.

    However, the facts of this case did not give rise to such arguments (imo anyway). The argument that Parliament couldn’t possibly have meant to exlude ECSMA nationals from the regulations, and had only omitted them as an accident, was put before the Court of Appeal in Abdirahman and was given pretty short shrift.

    It was never going to succeed.

    Reply

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