Yesiloz v London Borough of Camden & Anor

A claimant’s lawful presence in the United Kingdom does not itself establish a right to reside for housing-benefit purposes. Whether such a right exists depends on the construction of the relevant statutory instrument.

Under regulation 10 of the Housing Benefit Regulations 2006, the listed categories exempt from treatment as a person from abroad are comprehensive. A national of a state party to ECSMA who is lawfully present, but is not within a specified category, does not acquire a right to reside merely because paragraph 4 of the 2000 Regulations disapplies the exclusion in section 115 of the Immigration & Asylum Act 1999. That disapplication does not confer either entitlement to benefit or a right to reside.

The appellant, a Turkish national and asylum seeker granted temporary admission, claimed housing benefit in April 2006. The local authority refused the claim on the basis that she was a person from abroad under regulation 10 of the Housing Benefit Regulations 2006.

An Appeal Tribunal allowed her appeal. The Social Security Commissioner allowed the local authority’s appeal on 23 June 2008. After the appellant received exceptional leave to remain in February 2008, a new housing-benefit claim succeeded; the dispute concerned the earlier period.

The Court of Appeal considered whether her lawful presence, Turkish nationality, and the exemption for ECSMA nationals in the 2000 Regulations gave her a right to reside for the purposes of regulation 10.

1. Appeal dismissed. Lord Justice Pill, with whom Lady Justice Smith and Lord Justice Wall agreed, held that the appellant had no right to reside for the purposes of regulation 10 of the Housing Benefit Regulations 2006.

2. The court accepted that the appellant was lawfully present in the United Kingdom. However, lawful presence is distinct from a right to reside. The distinction drawn in Abdirahman and R (YA) was of general application, although the precise question always depends upon the construction of the relevant statutory instrument.

3. Paragraph 4 of Part 1 of the Schedule to the Social Security (Immigration & Asylum) Consequential Amendments Regulations 2000 meant that section 115 of the Immigration & Asylum Act 1999 did not exclude the appellant from housing benefit solely by reason of immigration control. It did not confer substantive eligibility for housing benefit, nor did it imply a right to reside.

4. Eligibility was instead governed by the 1992 Act and regulation 10. The categories in regulation 10(3B) of persons who are not persons from abroad were comprehensive. They did not include nationals of ECSMA states. The consultation material concerning the 2004 introduction of the right-to-reside requirement could not justify reading an additional category into the Regulations.

5. Specific provision would have been required to give a temporarily admitted asylum seeker with the appellant’s characteristics a right to reside. She was therefore a person from abroad, was treated as not liable for housing payments, and was not entitled to housing benefit for the period in issue.

• Court of Appeal (Civil Division): Dismissed the claimant’s appeal and upheld the Social Security Commissioner’s decision.

• Social Security Commissioner: On 23 June 2008, allowed the London Borough of Camden’s appeal against the Appeal Tribunal.

• Appeal Tribunal: On 24 January 2007, allowed the claimant’s appeal against the refusal of housing benefit.