December 2017 Right to Reside Regarding a Young Disabled Adult

03/12/2017
The claimant, a Swedish national, had come to the UK in 2004 with her Swedish mother and stepfather. She had significant learning difficulties requiring full time care and support and successfully claimed disability living allowance.

Her stepfather had worked in the UK but subsequently left the country and it was accepted that the claimant could not derive a right to reside from his residence. Her mother had claimed income support for a number of years as a lone parent, although no immigration checks had been undertaken when she made her claims and she had no right to reside that could assist the claimant.

 

In 2010 the claimant, who remained living with her mother who provided care for her, applied for employment and support allowance (ESA). The claim was refused on the grounds that the claimant lacked a right to reside under the Employment and Support Allowance Regulations 2008. A First-tier Tribunal dismissed the claimants appeal, concluding that she had not integrated into UK society, neither had a right to reside in her own right nor a derived right, and it was not proportionate to disapply the relevant right to reside conditions to allow the appeal.

 

The claimant appealed to the Upper Tribunal and this appeal was also dismissed.

 

Having undertaken a detailed analysis of proportionality arguments considered in previous cases including the leading case of Mirga, the judge concluded that for a proportionality argument to stand any chance of success, the case must involve extreme circumstances. He concluded that it was clear that the EU is content for individual Member States to judge whether a right of residence should be granted in harder cases that do not fall within the scope of the Directive, and judging softer, more discretionary considerations should fall on domestic immigration authorities.

 

In regard to the facts of this particular case, Judge Ward placed little weight on the claimants submission that reliance upon others to live in the community, and a failure to exercise a right of freedom of movement because of her disability, were extreme circumstances that may satisfy the exceptionality requirement.

 

Instead he concluded that the effect of the submission would be to make the UK a sort of insurer of last resort for the financial support, through the benefit system, of those with disabilities such as the appellant has, even though they have no right to reside in the UK. That would be to drive a coach and horses through the balancing of competing interests, including the protection of the finances of Member States by the Directive, as expounded in the case law reviewed above.

 

In addition, he found no evidence of social integration stemming from the family’s reliance on benefits for many years, particularly when viewed alongside evidence that the claimant was socially isolated. He also rejected the submissions that she had limited connections with Sweden which made it unrealistic to expect her to return there. On the contrary, Judge Ward could not see any reason on the evidence before him, apart from family choice, why the family could not return to Sweden and avoid the effects of being denied social assistance in the UK.

 

Moving on to consider the potential for Article 26 of the EU Charter to assist the claimant, he found that the protection afforded by the Charter must relate to rights flowing from the EU Treaties (and thus not protecting the rights of people without a right to reside established under the Treaties).

 

In conclusion Judge Ward stated that the case failed because the claimants circumstances do not make it disproportionate to rely on the Directive to limit the claimants right of residence, and do not outweigh the interests of the UK to protect its finances against additional claims on its social assistance budget.

 

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