Gingi v Secretary Of State For Work & Pensions

Community law does not require a national provision to receive a Community-law construction when it is applied to a case wholly outside the Community legal order. The protection required for persons exercising Community rights does not spill over to persons with no Community connection.

Accordingly, Income Support (General) Regulations 1987 may operate under the Community approach to habitual residence where Community rights arise, while retaining its domestic application under [1999] 1 WLR 1937 in a wholly domestic case. A Community concept is carried into domestic-only cases only where national legislation deliberately adopts the Community solution for both situations.

The appellant was a British citizen who had previously lived in Cyprus and first entered the United Kingdom on 16 September 1998. She claimed income support on 5 October 1998. The claim was refused because, by 12 October, she had not become habitually resident in the United Kingdom for the purposes of regulation 21(3) of the Income Support (General) Regulations 1987.

A tribunal found that she was not habitually resident. Mr Commissioner Jacobs held that the tribunal had made no error of law in applying [1999] 1 WLR 1937. The appellant appealed on a point of law. She accepted that she had neither exercised free movement within the Community nor established that she was a worker within the relevant Community scheme.

The central issue was whether the Community-law approach to habitual residence under article 10a of Council Regulation (EEC) No 1408/71 altered the meaning of regulation 21(3) for every claimant, including a claimant whose case was wholly domestic.

1. Appeal dismissed. Buxton LJ gave the leading judgment. Arden LJ and Schiemann LJ agreed that the appellant could not invoke Community law. Her case had no Community element and fell outside the Community legal order.

2. Community law required a domestic court to secure the Community-law result only when deciding a case within that legal order. It imposed no duty to interpret or disapply national legislation in a wholly non-Community case. The Court applied the reasoning in [1998] ECR I-4695 and held that there was no domestic-law spillover from the Community position.

3. For a Community claimant, [1999] ECR I-1075 prevented an appreciable period of residence from being an automatic condition of habitual residence under article 10a. That did not undermine [1999] 1 WLR 1937, which bound the Court in relation to the wholly domestic operation of regulation 21(3). In that setting, a claimant must have lived in the United Kingdom for a period showing that residence has become habitual.

4. Buxton LJ, with reasoning materially supported by Schiemann LJ, treated habitual residence as an evaluative application of statutory criteria to the factual situation rather than a single verbal meaning that must determine every case. Arden LJ considered that Swaddling did interpret the Community concept, but agreed that Community rights could require a different application of the same national words without changing their domestic operation.

5. The Court also rejected reliance on the Leur-Bloem line of authority. That jurisdiction depends on deliberate national adoption of a Community concept to regulate comparable internal situations. Regulation 21(3) showed no such harmonising purpose, particularly because it made express provision for certain migrant workers and Council Regulation (EEC) No 1408/71 was a coordinating, not harmonising, measure.

6. The order was that the appeal be dismissed with costs, subject to detailed assessment. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): dismissed the appellant's appeal on a point of law from the Social Security Commissioner.
• Social Security Commissioner: Mr Commissioner Jacobs held that the tribunal had made no error of law in finding that the appellant was not habitually resident in the United Kingdom.
• Tribunal: found that the appellant had not become habitually resident by the date of the refusal of income support.