[2007] UKSSCSC CIS_419_2007 (16 October 2007)

CIS/419/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I dismiss the claimant’s appeal against the decision of the Sutton appeal tribunal dated 18 September 2006.

REASONS

2.	The claimant is a Polish national who came to the United Kingdom on 20 June 2003.  She had not worked here before she claimed income support but had been living with her Portuguese boyfriend who had been supporting her and their son who was born on 31 May 2004.  In 2005, she enrolled as a student on a degree course.  However, in February 2006, she fled from her home as a result of domestic violence and brought proceedings under the Child Abduction and Custody Act 1985 for the care of her son.  On 20 March 2006, the university agreed to suspend her studies with a view to her restarting her course in September 2006.  It appears that her son was duly placed in her care because, on 3 April 2006, she claimed income support as a single parent.  The claim was rejected on the same day, on the ground that the claimant had no right to reside in the United Kingdom and therefore could not be treated as habitually resident in the United Kingdom with the result that her applicable amount was nil (see regulation 21 of the Income Support (General) Regulations 1987 (S.I. 1987/1967) as then in force). 

3.	The claimant appealed to a tribunal on the ground that she was an EEA national who was in the United Kingdom as a student and was therefore a “qualified person” within the scope of regulation 5(1)(g) of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2329) who had a right of residence in the United Kingdom by virtue of regulation 14 of those Regulations.  Regulation 3(1)(g) provided that –

“‘student’ means a person who - 
    (i) 	is enrolled at a recognised educational establishment in the United Kingdom for the principal purpose of following a vocational training course;
    (ii) 	assures the Secretary of State by means of a declaration, or by such alternative means as he may choose that are at least equivalent, that he has sufficient resources to avoid him becoming a burden on the social assistance system of the United Kingdom; and
    (iii) 	is covered by sickness insurance in respect of all risks in the United Kingdom.”

The tribunal found that the claimant satisfied the first of those conditions, but not the second, and it therefore dismissed the claimant’s appeal.  It was not necessary for the tribunal to consider the third condition because all three conditions had to be satisfied for the claimant to be a “student” with a right of residence.  The claimant now appeals against the tribunal’s decision with my leave.

4.	Insofar as they related to students, the 2000 Regulations were intended to give effect to Directive 93/96/EEC.  In Grzelczyk v. Centre public d’aide sociale d’Ottignes-Louvain-la-Neuve (Case C-184/99) [2001] E.C.R. I-6193, the European Court of Justice considered the terms of that Directive –

“40.	As regards … the question of resources, Article 1 of Directive 93/96 does not require resources of any particular amount, nor that they be evidenced by specific documents.  The article refers merely to a declaration, or such alternative means as are at least equivalent, which enables the student to satisfy the national authority concerned that he has, for himself and, in relevant cases, for his spouse and dependent children, sufficient resources to avoid becoming a burden on the social assistance system of the host member state during their stay (see paragraph 44 of the judgment in Case C-424/98 Commission v. Italy [2000] E.C.R. I-4001).

41.	In requiring such a declaration, Directive 93/96 differs from Directives 90/364 and 90/365, which do indicate the minimum level of income that persons wishing to avail themselves of those directives must have.  That difference is explained by the special characteristics of student residence in comparison with that of persons to whom Directives 90/364 and 90/365 apply (see paragraph 45 of the judgment in Commission v. Italy, cited above).

42.	That interpretation does not, however, prevent a Member State from taking the view that a student who has recourse to social assistance no longer fulfils the conditions of his right of residence or from taking measures, within the limits imposed by Community law, either to withdraw his residence permit or not to renew it

43.	Nevertheless, in no case may such measures become the automatic consequence of a student who is a national of another Member State having recourse to the host Member State’s social assistance system.

44.	Whilst Article 4 of Directive 93/96 does indeed provide that the right of residence is to exist for as long as beneficiaries of that right fulfil the conditions laid down in article 1, the sixth recital in the directive’s preamble envisages that beneficiaries of the right of residence must not become an “unreasonable” burden on the public finances of the host member state.  Directive 93/96, like Directives 90/364 and 90/365, thus accepts a certain degree of financial solidarity between nationals of a host member state and nationals of other member states, particularly if the difficulties which a beneficiary of the right of residence encounters are temporary.

45.	Furthermore, a student’s financial position may change with the passage of time for reasons beyond his control.  The truthfulness of a student’s declaration is therefore to be assessed only as at the time it is made.

46.	It follows from the foregoing that Articles 6 and 8 of the Treaty preclude entitlement to a non-contributory social benefit, such as the minimex, from being made conditional, in the case of nationals of Member States other than the host state where they are legally resident, on their falling within the scope of Regulation 1612/68 when no such condition applies to nationals of the host Member State.”

5.	The claimant argues that the Secretary of State and the tribunal have done precisely what the Court said they were not entitled to do which is to decide that the claimant lost her right of residence simply because she had claimed income support.  The Secretary of State replies that the claimant is wrong to compare the British income support scheme with the Belgian minimex that was claimed in Grzelczyk.

6.	The Secretary of State’s submission raises as many questions as it answers.  The Court did not say that Mr Grzelczyk was entitled to the minimex; only that a student could not be held to have no right of residence only because he or she had made a claim for social assistance without regard to any other of the circumstances at all.  The Secretary of State has not explained why that approach should not apply in the \united kingdom to the same extent that it did in Belgium.  There plainly were differences between the minimex and income support but I am not persuaded that they have any bearing on what was said in paragraph 43 of the Court’s judgment.

7.	However, I do not accept the claimant’s submission that she should be awarded income support in the light of Grzelczyk.  Even if Mr Grzelczyk had been awarded the minimex, this case is immediately distinguishable from his, first because here the claimant’s studies had been suspended and so she did not need to be present in the United Kingdom for the purpose of her studies at the date of her claim for income support, secondly because in Grzelczyk it appears that the claimant’s studies in his fourth year precluded him from working as he had in earlier years (see paragraph 11 of the judgment and paragraph 95 of the Advocate General’s opinion) and thirdly because the claimant in the present case was not in the middle of her studies but had been required to start her course from the beginning again (although it is just possible that she had completed one or more modules in which case those particular modules did not need to be retaken).  In any event, Grzelczyk merely requires that any loss of a right of residence resulting in exclusion from a social assistance scheme should be proportionate given the respective aims of Directive 93/96/EEC and the social assistance scheme in issue.  Plainly the Court was anxious that students should not be prevented from completing their studies by entirely unforeseen financial crises.  Nonetheless, students are generally expected to arrange for their own support and regard may be had to other sources of finance a claimant might reasonably have such as earnings from work and, presumably, credit facilities.  The relevance of earning capacity is apparent from Commission of the European Communities v. Italian Republic (Case 1998/424) [2000] E.C.R. I-4001, to which reference was made in Grzelczyk.  In paragraph 45 of the judgment in the Italy case, the Court adopted submissions of the Commission recorded in paragraph 40 of the judgment –

“As for the reasons capable of justifying this difference between Directive 93/96 and Directives 90/364 and 90/365, the Commission cites first the fact that the student's stay - in his capacity as student - will be temporary, since it is limited to the duration of his studies. The risk of his becoming a burden on social assistance is therefore less than in the case of beneficiaries of the other two directives. In addition, the Community legislature has limited the validity of the residence permit to one year, renewable annually, thereby allowing the national authorities to intervene more rapidly where a student has become a burden on social assistance. Finally, the Commission maintains that it is far more easy for a student than for the beneficiaries of the other two directives to supplement resources by income from work, which might be part-time or periodic, since, as a national of a Member State, he has the right to respond to any offer of employment. It would, however, be difficult to produce proof in advance that a student will supplement his resources with income from such work.”

8.	I accept that the claimant in this case had suddenly and unexpectedly lost her means of financial support, although presumably an application for child support maintenance could have been made.  However, the fact that the claimant’s studies had been suspended seems to me to be extremely important, even assuming that the tribunal was correct to find that the claimant remained within the scope of regulation 3(1)(g)(i) of the 2000 Regulations and therefore the equivalent provision in the Directive.  An able-bodied student whose studies have been suspended is prima facie able to seek work and is in much the same position as a former worker who is involuntarily unemployed.  Ordinarily, a student who was seeking work would have a right of residence by virtue of Article 39 of the EC Treaty and regulation (EEC) No. 1612/68 and would not need to rely on Directive 93/96/EEC.  It seems to me that it would place an able-bodied student whose studies had been suspended in an unreasonably advantageous position by comparison with other nationals of Member States other than the United Kingdom to award them income support without any condition that they be available for, and actively seek, employment.  It would also be inconsistent with the provision in Directive 93/96/EEC requiring a student to make a declaration as to the adequacy of his or her resources, which implies an obligation on the student to be as self-sufficient as possible even in the face of unforeseen events.  Although the claimant in the present case would no doubt have been entitled to restrict her availability for work to some extent because of her child care responsibilities, she could reasonably have been expected to make arrangements for some alternative childcare to enable her to work until her course recommenced, by which time she hoped to have made other arrangements to finance her studies.

9.	In my judgment, as the claimant was not looking for work at the time of her claim and the decision made on it, the tribunal did not err in law in finding that she had no right of residence by virtue of Directive 93/96/EEC or otherwise.

10.	If the claimant had been looking for work, it would have been necessary for me to consider the implications of regulation 4 of the Accession (Immigration and Worker Registration) Regulations 2004 (S.I. 2004/1219) which would have precluded her from relying on Regulation (EEC) No. 1612/68.  The question would have arisen whether she could have derived a right of residence from Directive 93/96/EEC while looking for work, notwithstanding her lack of resources.  As one of the options open to people with no right of residence and no resources is to return to the states of which they are nationals, it would also have been necessary to consider the relevance of any undertaking given by the claimant to the High Court not to remove her child from England and Wales.  (Such an undertaking was recorded in the order of 24 February 2006 in the papers before me but it had lapsed before the claim for income support was made.)  However, neither of those matters could justify finding that an able-bodied student whose studies have been suspended and who is not looking for work has a right of residence when his or her resources are such that recourse must be had to social assistance.

	(signed on the original)	MARK ROWLAND
		Commissioner
		16 October 2007