Jeleniewicz v Secretary of State for Work and Pensions

A claimant relying on a derivative right of residence for income support must establish the underlying student’s and dependent child’s entitlement at the claim date. The sufficient-resources condition is substantive and continuing; a declaration is not a one-off formality, and residence may be lost if the student or family member becomes a burden on social assistance. Dependency requires material support, not merely emotional attachment or contact, and the support must provide or contribute towards basic necessities. Although social-security appeals may be inquisitorial, the claimant generally must supply facts reasonably within their knowledge. Proportionality remains relevant, but evidence of a likely and enduring burden on social assistance may justify treating the right as ended.

The appellant, a Polish national, appealed against Mr Commissioner Jacobs’s decision in CIS/1545/2007. The Commissioner had allowed the Secretary of State’s appeal from the Fox Court Appeal Tribunal, which had held that the appellant had a right to reside through her daughter, Victoria. The proposed chain of rights depended on Victoria being the dependent child of her French national father, who was said to be a student pursuing vocational training in the United Kingdom, and on the appellant being Victoria’s primary carer.

The Commissioner found insufficient evidence that the father was a qualifying student or that Victoria was his dependent child. The central issues were whether changed circumstances automatically ended Victoria’s residence without a separate proportionality assessment, whether the Commissioner’s inquisitorial functions required further investigation, and whether the appellant could rely on Article 8 or an inferred primary-carer right.

Appeal dismissed. No question of law arose from the Commissioner’s decision, and the Secretary of State was entitled to terminate the appellant’s income support.

1. Continuing residence conditions. The right of residence under Directive 93/96/EEC and the Immigration (European Economic Area) Regulations 2000 depended on continuing compliance with the relevant conditions. The sufficient-resources requirement was substantive. A declaration was not a one-off formality, and changed circumstances could result in loss of residence if the student or family members became a burden on social assistance. The relevant conditions had to be considered at the date of the income-support claim.
2. Role of the Commissioner. Applying Kerr v Department for Social Development, [2004] 1 WLR 1372, the claimant generally had to provide information reasonably within her knowledge, including facts showing whether entitlement had ceased. The Commissioner was entitled to proceed on the basis that the represented claimant’s legal representatives had supplied the relevant information and directed submissions to the applicable provisions.
3. Dependency. The evidence of contact twice a week and irregular payments averaging £10 per week did not establish that Victoria was her father’s dependent child. Dependency required material support, which need not be financial, providing or contributing towards the basic necessities of life. Emotional attachment alone was insufficient. The Commissioner was entitled to reject the dependency claim, consistently with the approach summarised in the Social Security Commissioner’s decision in CIS/2100/2007.
4. Proportionality. The Commissioner had addressed proportionality. He was entitled to distinguish a single small claim for a short period from likely public support of sufficient duration and amount to constitute a burden on social assistance. The evidence did not show that the need for support would be temporary. Victoria therefore lacked a right of residence, and the appellant could not derive one from her.
5. The Court did not decide whether, if the underlying rights had existed, a primary carer might have had an inferred right of residence by analogy with Baumbast v Secretary of State for Health, [2002] ECR I-7091, rather than under the Directive itself.

• Court of Appeal (Civil Division): On 23 October 2008, dismissed the appeal and held that no question of law arose from the Commissioner’s decision.
• Social Security Commissioner: Mr Commissioner Jacobs allowed the Secretary of State’s appeal in CIS/1545/2007, reversing the Fox Court Appeal Tribunal’s decision of 30 January 2007.