The right to reside: interim payments pending the outcome of an appeal

Issue 222 (June 2011)

There are two near certainties in a disputed right to reside case. The first is that it will raise complex issues of EU law, domestic immigration law and social security law. The second is that it will take an age for the matter to be resolved. This article, by David Simmons, addresses the issue of whether, pending the ultimate outcome of an appeal, is there any provision or principle of EU law that potentially entitles EU nationals challenging negative decisions to be supported in the meantime.

For EU nationals and their family members a decision by the DWP that the right to reside test has not been satisfied can have catastrophic consequences. Not only is there no award of benefit but all too often there is no immediate prospect of there being any resolution to the matter. This can and does mean in reality that not only are EU nationals left without basic in come benefits but they are unable to pay their rent and are faced with the prospect of destitu tion and homelessness. As the UK courts have stated, the right to reside test places a not too subtle pressure on claimants who fail the test to return to their countries of origin.

Matters are made worse for EU nationals in that Schedule 3 to the Nationality Immigrationand Asylum Act 2002 purports to deny the ultimate safety net provisions contained in the National Assistance Act 1948, the Local Government Act 2000 and the Children Act 1989 to persons over the age of 18 unless not to provide assistance would breach EU law or ECHR rights. EU nationals approaching social services departments are routinely offered a oneway ticket back to their ‘home’ country as a way of disposing of this issue.

The answer to the problem outlined above in terms of benefits and tax credits law is arguably ‘yes’ there is something that can be done. EU law requires that a remedy for the breach of EU law must be effective. The principle of ‘effectiveness’ or ‘usefulness’ of a EU citizen’s rights can mean that a member state may have to disapply a national rule or administrative practice. The position in UK social security law is that pending the outcome of an appeal against a negative decision no benefit is paid in the interim – it is this practice than can be challenged.

For housing and council tax benefits and tax credits there appears to be no provisions at all addressed to the making of interim payments after a decision on a claim has been made, so it is a straightforward request that they be paid to comply with the claimants rights under EU law. For DWP administered benefits, the relevant provisions are the Social Security (Payments on Account etc) Regulations 1998 (hereafter the POA Regs). The POA Regs provide the Secretary of State with a power to make interim payments. But regulation 1A, introduced in the wake of the habitual residence test in 1996, seeks to specifically prevent the making of an interim payment pending an appeal. So for DWP benefits the argument is that the regulatory provision is incompatible with the claimants rights under EU law.

The legal argument: EU law and interim relief

Right to reside appeals by their very nature raise issues of EU law. In essence, a claimant appealing a right to reside decision is assert ing that the decision maker has incorrectly ap plied the EU law provisions of free movement and residence in her/his particular circum stances. In some cases the assertion may be that the UK provision is itself contrary to EU law. The question that arises is whether the state or the local authority can refuse to provide support pending the outcome of the ap peal. What must be borne in mind is that the claimant’s ability to continue to reside in the UK at all might well be extinguished before the appeal is heard. A successful outcome to an appeal will be a pyrrhic victory if the EU citizen has been pressurised into leaving the UK and abandoning her/his free movements rights.

The central tenet of the interim relief argument is that any domestic law measure which purports to prevent EU law and EU citizens’ rights having full force and useful effect is unlawful as a matter of EU law and must be set aside by the domestic courts. Authority for this proposition is to be found in the case of R v Factortame Ltd ex parte Secretary of State for Transport (No.2) [1991] 1 AC 603 (Case C213/89). In Factortame it was held that the full effectiveness of EU law would be impaired if a rule of national law or an administrative prac tice prevented the court dealing with a dispute governed by EU law from granting interim relief. In particular, at para 23 in Factortame, the ECJ held that:

‘… Community law must be interpreted as meaning that a national court which, in the case before it concerning Community law, considers that the sole obstacle which pre cludes it from granting interim relief is a rule of national law must set aside that rule.’

This proposition has been repeated by the ECJ on numerous occasions such as in Unibet (London) Ltd v Justitiekanslern (Case C432/05), where the court held that:

‘As a preliminary point, it must be pointed out that a court seised of a dispute governed by Community law must be in a position to grant interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law (see the Factortame case (para 21) and Siples Srl (in liq) v Ministero delle Finanze Case C226/99 [2001] ECR I277 (para 19)).’

A claimant’s appeal to the First-tier Tribunal on a right to reside decision directly raises a dispute concerning rights granted under UK law specifically enacted to bring into force EU law requirements, namely the Immigration (EEA) Regulations 2006 and the various ‘person from abroad’ tests within the benefits and tax credit system. The subject matter of the dispute is therefore not one which could arise in appeals brought by UK or Irish nationals who both automatically satisfy the right to reside test. The issue of entitlement to social assistance is often the key to the effective exercise the claimant’s continued ability to reside in the UK at all. The refusal of social assistance quite clearly impedes and undermines a EU national or family member’s ability to exercise free movement rights. Though the UK as a matter of course takes no steps to remove EU nationals, the refusal of social assistance places a claimant under pressure to remove him or herself.

In short, in a right to reside appeal the decision maker is of the opinion that EU and do mestic law does not require the grant of social assistance. The claimant is arguing the opposite. It is arguable that the decision maker is under a duty to actively consider the merits of the claimant’s challenge to the decision (in cluding her/his individual circumstances) denying her/his access to social assistance pending the resolution of the appeal. Put in dry legal terms, the argument is that the state can not decline a request for interim payments/in terim relief pending the appeal as a matter of jurisdiction. Rather due and diligent consideration must be given to the merits of the appeal and the contested EU law rights claimed.

It is arguable that the issue of giving ‘useful effect’ to a claimants rights under EU law and the need to grant interim relief in a right to re side appeal is of even greater persuasiveness than in the protracted Factortame litigation. Factortame was at heart a dispute that arose in a commercial context; it concerned the right of Spanish fishing vessels to register in the UK. In a right to reside case, issues of citizenship of the EU and the Charter of Fundamental Human Rights of the EU are in play. This was not the case in Factortame. A right to reside appeal is the quintessential example of the individual EU citizen or family member versus the State.

The practicalities of mounting an interim relief challenge

The First-tier Tribunal and the Upper Tribunal have no powers to order the making of interim payments. Rather than seek to test out the lawfulness of this prohibition, claimants must use the remedy of judicial review.

In practical terms, an appeal against the right to reside decision must be made. Then after the appeal has been submitted a letter be fore action should be sent to the decision maker and the relevant legal department. The letter before action should be sent in accordance with the judicial review preaction protocol. The letter needs to do five things at the same time:

  • it must ask for an urgent reconsideration of the decision;
  • it must categorically state that if the decision cannot be positively revised in the claimant’s favour, the claimant is requesting interim payments pending the outcome of the appeal;
  • it must describe the particular circumstances of the claimant and why payments are needed as a matter of urgency;
  • it should state what action is being taken by the representative to expedite the appeal and any barriers to its disposal – eg, delays with tribunals being heard or awaiting a de cision in a lead case at the Upper Tribunal;
  • finally, it must describe in detail why the right to reside decision is wrong as a matter of EU and or domestic law.

The letter before action should demand a response within a specified time frame. Assuming (and this is a fairly safe assumption) that the request is refused the next step is to seek a judicial review of the refusal to provide interim payments. For this, the claimant will need to be re ferred to a law centre or solicitor for assistance.

The point of the judicial review is to ask the Administrative Court is to use its inherent powers to grant interim relief. In the judicial review is a declaration that an interim payment should be considered pending the outcome of the appeal and/or that the Administrative Court has jurisdiction to direct that an interim pay ment should be made and in the circumstances is required by EU law so use its inherent jurisdiction.

If interim relief is secured then in effect the Administrative Court will have accepted that the claimant either has a right to reside or a right to receive social assistance. Any such decision is at the very least of persuasive au thority before the First-tier Tribunal.

Making of Interim payments

2.(1) Subject to paragraph (1A), the Department may, in its discretion, make an interim payment, that is to say a payment on account of any benefit to which it appears to the Department that a person is or may be entitled or, where subparagraph (a) applies, entitled apart from satisfying the condition of making a claim, in the following circumstances–

(a) a claim for that benefit has not been made in accordance with the Claims and Payments Regulations and it is impracticable for such a claim to be made immedi ately, including where it is impracticable to satisfy immediately the national insur ance number requirements in section 1(1A) and (1B) of the Administration Act;

(b) a claim for that benefit has been so made, but it is impracticable for it or an applica tion or appeal which relates to it to be determined immediately; or

(c) an award of that benefit has been made but it is impracticable for the beneficiary to be paid immediately, except by means of an interim payment.

(1A) Paragraph (1) shall not apply pending the determination of an appeal.

(2) Subject to paragraph (3), on or before the making of an interim payment the recipient shall be given notice in writing of his liability under this Part to have it brought into account and to repay any overpayment.

 


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