Decision Summary Information

Back to Results | Search Again | Most Recent Decisions

Neutral Citation Number:
Reported Number: R(H)7/09
File Number: CH 2321 2007
Appellant: Yesiloz
Respondent: LB Camden and SSWP
Judge/Commissioner: Judge M. Rowland
Date Of Decision: 20/05/2009
Date Added: 30/06/2008
Main Category: Residence and presence conditions
Main Subcategory: persons subject to immigration control
Secondary Category: Residence and presence conditions
Secondary Subcategory: right to reside
Notes: Residence and presence conditions – Turkish asylum seeker – whether having a right to reside in the United Kingdom The appellant was a Turkish national who was granted temporary admission to the United Kingdom under paragraph 21 of Schedule 2 to the Immigration Act 1971. In April 2006 she claimed housing benefit. She was still an asylum seeker. Her claim for housing benefit was rejected on the ground that she had no right to reside in the United Kingdom, and was therefore a person from abroad who was to be treated as not liable to make payments in respect of her home by virtue of regulation 10 of the Housing Benefit Regulations 2006. The claimant’s appeal to an appeal tribunal was allowed on the ground that regulation 10 of the 2006 Regulations was irrelevant because the claimant was not excluded from benefit by section 115 of the Asylum and Immigration Act 1999 as she was a national of a state which had ratified the European Convention on Social and Medical Assistance (ECSMA) and therefore fell within the exception in paragraph 4 of Part 1 of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000. The local authority appealed. The Commissioner allowed the appeal, holding that regulation 10 of the 2006 Regulations did apply to those not excluded from entitlement to benefits by section 115 of the 1999 Act, and that, as an asylum seeker granted temporary admission, the claimant had a right to be present in the United Kingdom but did not have a right to reside there. The claimant appealed to the Court of Appeal. It was argued for the claimant that it followed from the inclusion of nationals of ECSMA countries in Part 1 of the Schedule to the 2000 Regulations, with categories of persons accepted as having the right to reside, that such nationals also had a right to reside. Held, dismissing the appeal, that: 1. there is a clear distinction between lawful presence on the one hand and a right to reside, or ordinary residence or lawful residence, on the other and careful analysis of the appropriate instrument is required to decide whether an applicant has acquired the right to reside (Abdirahman v Secretary of State for Work and Pensions [2007] EWCA Civ 657, [2008] 1 WLR 254 (also reported as R(IS) 8/07) and R (YA) v Secretary of State for Health [2009] EWCA Civ 225 followed) (paragraph 29); 2. the list in regulation 10(3B) of categories of persons who are not “persons from abroad” is, and was intended to be, a comprehensive list and the inclusion of paragraph 4 in Part 1 to the Schedule to the 2000 Regulations, whatever its purpose, did not carry for ECSMA nationals the implication of entitlement to a right to reside (paragraphs 31 to 32); 3. having regard to the authorities, specific provision would be required if a person with the appellant’s characteristics were to be held to have a right to reside and the Commissioner’s reasoning and conclusions were correct (paragraph 33). Note: The Commissioner's decisioin was upheld by the Court of Appeal on 20.05.09 under the name Yesiloz v London Borough Camden and Secretary of State for Work and Pensions [2009] EWCA Civ 415 (to be reported as R(H) 7/09).
Decision(s) to Download: CH 2321 2007-00.doc CH 2321 2007-00.doc  
R(H)_7 09_bv.doc R(H)_7 09_bv.doc