Blog post by Desmond Rutledge of the Garden Court Chambers Welfare Benefits Team.
The claimant was a Pakistani national with leave to remain in the UK subject to a condition of no recourse to public funds. Her husband was a British citizen, as was their son. She claimed Carer's Allowance but this was refused in December 2017 on grounds that she failed to satisfy the residence and presence conditions as she was a person subject to immigration control under section 115(9) Immigration and Asylum Act 1999 (the 1999 Act). A First-tier Tribunal allowed her appeal, ruling that section 115 was disapplied by regulation 2 Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 (the 2000 Regulations) as she came under the exemption in paragraph 1,Part II of the Schedule to the 2000 Regulations, being “a member of a family of a national of a State contracting party to the Agreement on the European Economic Area at Oporto on 2nd May 1992”.
The First-tier Tribunal concluded: (i) the UK was a contracting party to the Oporto Agreement; (ii) the claimant was the spouse of a British citizen and mother of another; and (iii) the Schedule to the 2000 Regulations contained no requirement that the claimant’s spouse or child must have exercised Treaty rights in another Member State before she could rely on it. The Secretary of State appealed to the Upper Tribunal.
UT Judge Ward noted that there was conflicting case law on the issue. CDLA/708/2007 found the provision had to be interpreted to mean the family members of people who have exercised their right of freedom of movement under EU law. JFP v Department for Social Development (DLA)  NICom 267 reached a different view on materially identical Northern Ireland legislation. It held that the provision includes a family member of a British national as the United Kingdom is a contracting party to the EEA agreement. In MS v SSWP (DLA)  UKUT 42 (AAC) Judge Hemingway preferred the reasoning in CDLA/708/2007, but his comments are obiter.
Judge Ward held that as the 2000 regulations are 'consequential amendments' it was necessary to consider the earlier legal position. He drew attention to the following factors:
- The European Economic Area Act 1993 (which gave effect to the Oporto Agreement by extending existing domestic legislation implementing EU law to the EEA as a whole).
- The Immigration (European Economic Area) Order 1994 (the 1994 Order) which implemented the EC Council Directives. The 1994 Order defined an EEA national as “a national of a State which is a contracting party to the European Economic Area Agreement other than the United Kingdom”. Art.4 provided that nationals of EEA states were entitled to reside in the UK without leave to remain under the Immigration Act 1971 for so long as they remained a “qualified person”. A family member of an EEA national was similarly entitled for as long as they remained the family member of a qualified person. Once they ceased to be a “qualified person” or the family member of a qualified person, they were to be treated as a person requiring leave to enter or remain under the 1971 Act (art.20).
- Under section 7 of the Immigration Act 1988, EEA nationals did not require leave to enter or remain in the UK if they were entitled to do so by virtue of an enforceable Community law right.
- Prior to 5 February 1996, the residence and presence conditions to Carer’s Allowance did not contain any stipulation relating to a person’s right to reside or remain in Great Britain. That changed as a result of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996/30 (‘the 1996 Regulations’) when it became an additional requirement that a claimant’s right to reside or remain in Great Britain was not subject to any limitation or condition.
- The 1996 Regulations refer to a “national or a member of the family of a national” of a State party to the Oporto Agreement, whereas the 2000 Regulations refer only to “the family member” of such a national.
Judge Ward notes that it is a prerequisite to being caught by s.115(9) of the 1996 Act (and so a person “subject to immigration control”) that a person is not an EEA national. The 2000 Regulations did not need to exclude a category of persons who would not have been caught in the first place. However, the family members of EEA nationals might themselves not be EEA nationals, hence there was a continuing need for the limited provision in the 2000 Regulations for “a member of a family of an EEA national”.
In short, the pre-2000 legislative history indicates that what the UK intended to do was to comply with its obligations under the Oporto Agreement, but no more. For while there was a need for a provision in the 2000 Regulations to address the position of third country national family members to whom the immigration rules apply, it did not follow from this that the provision was intended to address the position of all such people, including the third country national family members of British nationals, irrespective of whether there had been any prior exercise of free movement rights.
In conclusion, Judge Ward held the law (in Great Britain) is as stated by the Deputy Commissioner in CDLA/708/2007, observing that if the law has not been adequately reflected in official guidance, “the consequences of that will have to be dealt with in cases where they arise.”
One of the consequences of Judge Ward’s ruling is that any award of Carer’s Allowance made under regulation 2 Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 will now be classified as an overpayment. The same reasoning applies to awards of Child Benefit made to third country national family members of British nationals. In the past, HM Revenue & Customs, who are responsible for administering Child Benefit, were, in practice, accepting claims from persons subject to immigration control where the child was a British citizen under this provision. Official Guidance issued by HMRC expressly stated that a claimant would be entitled to Child Benefit under this provision if their family member was ‘an EEA or Swiss national, or UK national’ (see ‘Claiming Child Benefit Without Breaching the Public Funds Condition’, March 2015, D. Rutledge). The reference to ‘UK national’ has since been deleted from HMRC’s guidance (Child Benefit Technical Manual: Residence and immigration: immigration - exceptions to the general exclusion. CBTM10000). For Child Benefit, the basic rule is that an overpayment is recoverable if it was caused by misrepresentation or failure to disclose a relevant fact (Social Security Administration Act 1992, s.71(1)). It is a question of fact whether payment would have been made in the absence of a misrepresentation or failure to disclose. Although official error is not referred to in section 71(1) of the 1992 Act, it is important to note that an overpayment that has been caused solely by an error on the part of HMRC will not be recoverable under this provision. For example, in MO v HMRC (CHB)  UKUT 199 (AAC) the claimant had correctly represented that she was a person subject to immigration control. However, she was nevertheless paid child benefit, until HMRC realised the error and then attempted to recover the overpayment. On the facts, there was no misrepresentation or failure to disclose and the overpayment had been caused by official error and was therefore not a recoverable overpayment.
The judgment is available here.