Proportionality not relevant to refusal of right to reside for Greek claimant in the UK for 30 years - A lacuna in right to reside law must be found in EU law and not in domestic benefit law

 A lacuna in right to reside law must be found in EU law and not in domestic benefit law

In Secretary of State for Work and Pensions v AC (UC): [2017] UKUT 130 (AAC),

The Claimant, a Greek national, had been included in her British husband’s benefit claims for around 30 years.  When they came under the Universal Credit scheme she was required to make a claim as a member of a couple.

This was refused on the grounds that she did not have a right to reside and so was treated as not in Great Britain for the purposes of reg 9 of the Universal Credit Regulations 2013/376.

On appeal, a First-tier Tribunal (F-tT), decided she had a right to reside, relying on Baumbast (C-413/99) to show that to refuse the Claimant a right to reside would be disproportionate, or would demonstrate a lacuna in the universal credit legislation.  The Secretary of State appealed.

Allowing the appeal and therefore upholding the decision to refuse benefit to the Claimant, Judge Jacobs holds:

1. As to Baumbast: This is not a social security case and Mr Baumbast had satisfied the conditions for a right to reside with one small exception. In contrast, the present appeal is not a case in which the Claimant “for all practical purposes satisfied the conditions for an accepted category of right to reside.”
   It was quite the opposite. As the F-tT judge recognised, the claimant did not fall into any accepted category.
   .
2. As to a lacuna: Mirga v SSWP [2016] UKSC 1, showed the very limited circumstances in which that approach would be permissible in a social security case. The F-tT the judge had found the lacuna in the coverage of the universal credit legislation. That is a matter of domestic law.
   The circumstances in which a lacuna may be avoided must relate to a potential gap in the EU legislation. So, the F-tT’s reasoning is wrong. Secondly, the fact that the claimant may have been able to obtain leave to remain in the UK under domestic immigration law as the wife of a British citizen, if she were to apply, indicated that there is no lacuna in the EU legislation. Judge Jacobs comments that this may be the solution to what the F-tT judge perceived to be the inequitable position under the universal credit legislation.