MD v Secretary of State for Work and Pensions (SPC)

A document certifying permanent residence under the Immigration (European Economic Area) Regulations 2006 is evidence of a permanent right of residence. It does not itself create that right or conclusively establish it until revoked.

The document may ordinarily avoid repeated production of underlying evidence. However, a social-security decision-maker may determine that its holder lacks a permanent right of residence where clear and uncontested objective evidence shows that the statutory conditions were never met. The Home Office need not first revoke a document issued in error.

The claimant, a Cypriot national living in the United Kingdom, claimed state pension credit after the Home Office issued him with a document certifying permanent residence. It was common ground that he had not in fact satisfied the conditions for a permanent right of residence.

The Secretary of State refused the claim on the basis that the claimant had no right to reside and could not be treated as habitually resident. The First-tier Tribunal dismissed his appeal, treating earlier authority and the decision in Secretary of State for Work and Pensions v Dias [2011] ECR I-6387 as binding.

The issue before the Upper Tribunal was whether the unrevoked document was conclusive proof of a permanent right of residence for state-pension-credit purposes.

1. Appeal dismissed. The claimant's document certifying permanent residence did not establish entitlement to state pension credit because clear and uncontested evidence showed that he had never acquired a permanent right of residence.

2. Under regulation 2(1), read with regulations 15 and 18 of the Immigration (European Economic Area) Regulations 2006, the document is proof in the evidential sense. It is capable of proving the right where there is no adequate contrary evidence. It does not confer the right, nor is it conclusive proof while it remains unrevoked.

3. Article 19 of Directive 2004/38/EC aims to spare a person with a permanent right of residence from repeatedly proving matters such as employment history. Article 25 nevertheless confirms that entitlement may be proved by other means. The Directive does not make the issuing authority the sole judge of the underlying right, which depends generally on objectively verifiable facts rather than discretion.

4. The Secretary of State for Work and Pensions could therefore decide benefit entitlement on the true facts despite an erroneously issued document. The absence, at the material time, of an express power retrospectively to revoke a document issued in error did not require the contrary conclusion.

5. The earlier permit authorities did not automatically govern a document issued under regulation 18, but their approach was consistent with the conclusion reached. As CPC/3588/2006 put it, such a document is evidence and does not create a right to reside. A domestic immigration right, by contrast, can only be conferred by the immigration authorities and is not retrospectively recognisable by social-security decision-makers.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the claimant's appeal from the First-tier Tribunal.

• First-tier Tribunal: on 4 June 2014, dismissed the claimant's appeal against the Secretary of State's refusal of state pension credit.

• Secretary of State for Work and Pensions: on 18 June 2013, decided that the claimant lacked a right to reside and was not entitled to state pension credit.