FN v Secretary of State for Work and Pensions

A returning British citizen need not have been a qualifying person at the date of the claim for a family member to have a right to reside under regulation 9 of the Immigration (European Economic Area) Regulations 2016. A First-tier Tribunal must follow a binding Upper Tribunal decision establishing that principle. In cases involving domestic violence and a non-molestation order, the tribunal’s power to order disclosure may be important where a party cannot reasonably obtain evidence from an estranged or abusive spouse.

The appellant, a Nigerian national separated from her British husband, claimed universal credit. Her claim was refused because the Secretary of State considered that her husband had not been shown to be a qualifying person when the claim was made. The First-tier Tribunal dismissed her appeal on the same basis in a decision dated 28 August 2020.

On appeal, both parties agreed that the First-tier Tribunal had erred in law. The central issue was whether the appellant could rely on regulation 9 of the Immigration (European Economic Area) Regulations 2016 without proving that her returning British husband was a qualifying person at the relevant date.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law because it failed to follow HK v SSWP [2020] UKUT 73, an unappealed and binding Upper Tribunal decision.
2. Under regulation 9 of the Immigration (European Economic Area) Regulations 2016, it was not necessary for the returning British citizen to be a qualifying person at the date of the claim in order for the claimant to have the relevant right to reside.
3. Applying that principle, the Upper Tribunal set aside the First-tier Tribunal’s decision and remade it. The claimant was not disqualified from universal credit for lacking a qualifying right to reside. The Secretary of State was required to determine the remaining aspects of the claim, with fresh rights of appeal if disputed.
4. Although unnecessary to the decision, the tribunal expressed concern about the fairness of listing the First-tier Tribunal case for determination on the papers after a disclosure order had not been complied with. In domestic violence cases involving a non-molestation injunction, parties may face realistic limitations in obtaining evidence directly from an estranged spouse. The First-tier Tribunal’s power under rule 16 of the FtT’s Rules may assist in overcoming disclosure difficulties, although such intervention need not be a first resort.

• First-tier Tribunal (Social Entitlement Chamber): dismissed the appellant’s appeal on 28 August 2020 under number SC007/20/00041.
• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision for error of law, and remade the decision in the appellant’s favour.