B v Secretary of State for Work & Pensions

A returning British citizen’s spouse may rely on regulation 9 only where the relationship had become one of family membership while the citizen was exercising Treaty rights in another EEA State. The EU-law deterrence principle requires comparison between the family member’s rights on return and those available had the citizen moved to another Member State. It does not protect a personal connection which had not yet become a family relationship.

For regulation 9(2)(c), the centre of the British citizen’s life may have transferred to the other EEA State; it need not remain there after the citizen has returned to the United Kingdom. A complete absence of comprehensive sickness insurance is not a minor failure of the self-sufficiency requirement capable of making refusal of residence disproportionate.

The appellant, a French national, moved to the United Kingdom with a British citizen in December 2002 and married him shortly afterwards. He died in 2008. She later claimed income-related employment and support allowance.

The Secretary of State decided that she had no right to reside and was therefore a person from abroad for the purposes of the Employment & Support Allowance Regulations 2008. The First-tier Tribunal dismissed her appeal. It found that she was not entitled to rely on regulation 9 of the Immigration (EEA) Regulations 2006, because she had not married the British citizen while he was residing in France as a worker or self-employed person. It also found that she lacked comprehensive sickness insurance.

The appeal raised whether regulation 9 had to be read compatibly with EU law so as to cover a marriage entered into only after the British citizen had returned to the United Kingdom, and whether proportionality or an award of personal independence payment altered the right-to-reside analysis.

1. Appeal dismissed. The First-tier Tribunal made no material error of law.

2. Regulation 9(2)(b) did not apply. Its alternative conditions require either that the spouses are living together in the relevant EEA State, or that they had married and were living there before the British citizen returned to the United Kingdom. The appellant and Mr B were not married in France.

3. The regulation did not require an expanded construction to comply with EU law. Singh and Eind protect the effective exercise of free movement by ensuring that an actual family member can accompany a returning Union citizen on terms no less favourable than those available in another Member State. They do not extend that protection to a relationship which had not become family membership before the citizen’s return. Mrs B would not have had derivative rights had Mr B instead moved to another Member State when he returned from France.

4. Although unnecessary to the result, regulation 9(2)(c) should be read as requiring that the centre of the British citizen’s life has, or had, transferred to the EEA State. Requiring it to remain there after return would be inconsistent with regulation 9’s purpose.

5. An award of personal independence payment did not confer, imply or conclusively determine a right to reside for employment and support allowance purposes.

6. The proportionality ground failed. The appellant did not merely fall slightly short of comprehensive sickness insurance. She failed that requirement completely, had not worked in the United Kingdom, and sought a right to reside in order to obtain social assistance. Her position was materially different from the near-miss circumstances discussed in Baumbast and applied in Mirga v Secretary of State for Work & Pensions.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; the First-tier Tribunal’s decision involved no material error of law.
• First-tier Tribunal: sitting at Swindon on 20 March 2015, dismissed the appeal against the refusal of income-related employment and support allowance on right-to-reside grounds.