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Neutral Citation Number:
Reported Number: R(IS)6/00
File Number: CIS 3559 1997
Appellant:
Respondent:
Judge/Commissioner: Judge J. Mesher
Date Of Decision: 10/11/1999
Date Added: 21/06/2002
Main Category: Residence and presence conditions
Main Subcategory: habitual residence
Secondary Category: European Union law
Secondary Subcategory: other
Notes: Person from broad - habitual residence - European Union nationals - self employed person - when a right to reside pursuant to Council Directive 73/148/EEC arises The claimant, a French national, came to the United Kingdom in 1982 to get married. After her marriage broke down in 1988, she went to Cyprus in 1992 with a new partner to escape her husband who had been charged with robbery and other offences of violence. Her fear diminished eventually and she returned to the United Kingdom on 2 December 1996 in order to have her baby. Her new partner, who was running a restaurant, remained in Cyprus. She claimed income support on 17 December 1996. On 14 February 1997, she placed an advertisement in the local press offering French tuition. The adjudication officer decided that she was not habitually resident in the United Kingdom. The claimant appealed. Firstly, she argued that as her stay in Cyprus had been temporary, she never lost her habitual residence in the United Kingdom. Alternatively, she had acquired habitual residence immediately on arrival or shortly thereafter upon re-establishing her home. Lastly, as a person who wished to establish herself in the United Kingdom to pursue activities as a self-employed person or to provide services here under Article 1(1)(a) of the Directive, she should be deemed to be habitually resident as a person with a right to reside in the United Kingdom pursuant to Council Directive 73/148/EEC. The tribunal rejected the arguments but decided that the claimant was habitually resident from 5 March 1997 i.e. the date of hearing. Her baby had been born about five weeks earlier. The claimant appealed to the Commissioner. The adjudication officer submitted that following the European Court of Justice’s ruling in Swaddling v. Adjudication Officer (case C-90/97) [R(IS) 6/99], the tribunal had erred by not considering Article 10a(1) of Council Regulation (EEC) 1408/71. He also submitted that the Commissioner could substitute a decision that the claimant was resident in the United Kingdom from 17 December 1996 for the purposes of Article 10a and was not precluded from entitlement by the habitual residence rule. Held, allowing the appeal, that: 1. the claimant fell within the personal scope of Council Regulation (EEC) 1408/71 by virtue of her previous work and social security contributions in the United Kingdom and her French nationality. The effect of the principles laid down by the European Court of Justice in Swaddling was that the claimant was potentially entitled to the protection of Article 10a(1) of the Regulation prior to 5 March 1997. Even though the point was not argued before the tribunal, it was an error of law to have failed to deal with it. The tribunal’s decision had to be set aside although the Commissioner was unable to give a final decision on Article 10a(1) on the basis of the evidence before him, in particular because of the lack of evidence about the state of the claimant’s relationship with her partner and their intentions (paras. 10 to 16); 2. the tribunal did not err in law in their application of the actual habitual residence test. The argument that an appreciable period of residence was unnecessary in the light of Swaddling and the Court of Appeal’s decision in Nessa [1998] 2 All ER 728 was wrong. As the habitual residence rule was not introduced to implement any European Community obligation, it could not be interpreted generally by reference to Community legislation. Swaddling did not decide the meaning of the English habitual residence test, it decided the meaning of “residence” in the context of Article 10a, which could affect the circumstances in which a claimant in the United Kingdom could be denied income support on the basis of the habitual residence test. The Court of Appeal and the House of Lords had endorsed the general meaning of habitual residence in English law incorporating the requirement of an appreciable period of residence. It was doubted that Lord Slynn’s obiter remarks (at [1999] 1 WLR 1943) about a person “resuming a habitual residence previously had” were intended to apply whenever the person in question had previously been habitually resident here (paras. 17 to 22); 3. the tribunal erred in its interpretation of Council Directive 73/148/EEC. A person has the right of residence when taking steps towards offering services to the public (or otherwise setting up as self employed). It is not necessary to reach the stage of actually providing services. A mere intention to become established was not sufficient. Exactly what steps will be sufficient will depend on the circumstances of individual cases (paras. 31 to 33). C10/95 (IS), a Northern Ireland decision, was considered at paragraph 27. The Commissioner remitted the appeal to a new tribunal for a complete rehearing of the issues.
Decision(s) to Download: IS6_00.doc IS6_00.doc