The claimant was an Austrian national who had met and married his wife, a British citizen, while she was living and working in Germany, where she had eventually accrued a right of permanent residence under Parliament and Council Directive 2004/38/EC on the free movement of Union citizens and their family members. When the wife’s health deteriorated the couple moved to live in Scotland, initially staying with a relative and living on savings and the pension from the claimant’s job in Germany. They subsequently applied for social housing, housing benefit and council tax reduction and the claimant also applied for state pension credit. The Secretary of State decided that the claimant did not have a qualifying right to reside and thus did not meet the condition of entitlement for state pension credit in section 1(2) of the State Pension Credit Act 2002 and regulation 2(1)(2) of the State Pension Credit Regulations 2002. He took the view that on the correct application of regulation 9 of the Immigration (European Economic Area) Regulations 2016, which set out the conditions in which the Regulations would apply to a family member of a British citizen as though that citizen were a European Economic Area (“EEA”) national, the claimant could not assert a right to reside derived from that of his wife unless following her return she was a “qualified person” under regulation 6(1), namely an EEA national who was in the United Kingdom as a jobseeker, worker, self-employed person, self-sufficient person or student. The Secretary of State accordingly refused the claim and that decision was upheld by the First-tier Tribunal on appeal.
On the appeal—
Held, appeal allowed. Under European Union law a person who had exercised his right of freedom of movement by living and working in another member state was not required to meet either of the two limbs of the “qualified person” definition in order for his family members to enjoy a right to reside with him on his return to the member state of which he was a national. Any such requirement might discourage a worker from leaving the member state of which he was a national to pursue gainful employment in another member state simply because of the prospect for that worker of not being able to continue, on returning to his member state of origin, a way of family life which might have come into being in the host member state, and thus undermined the right to free movement which the nationals of the member states had under European Community law. Accordingly, in order to give useful effect to the right of free movement of workers under article 45FEU of the FEU Treaty, a family member of a person who had gone to work in another member state had a right to reside with that person even if the person was not carrying on effective and genuine economic activities following his return to his member state of origin. Regulation 9(1) of the 2016 Regulations was therefore to be interpreted as not requiring, as part of how “these Regulations apply”, to require “BC”, namely the British citizen, to fulfil the condition of being a “qualified person” under regulation 6. The First-tier Tribunal had therefore erred in law by treating regulation 9(1) as if EU law permitted the imposition of the condition to be a “qualified person” on the returning British citizen himself, whereas the concern of EU law was instead that the conditions to be fulfilled by the person seeking to derive a right, as a family member of a Union citizen in the latter’s member state of origin, should be not less favourable than those provided by Directive 2004/38 for family members of a Union citizen who had exercised his right of freedom of movement by becoming established in a member state other than the member state of which he was a national (paras 11, 17, 18, 22, 25, 33, 35, 40, 44).
Martyn West (of Appeals Team, Money Matters Advice Service, South Lanarkshire Council, Hamilton) for the claimant.
Chris Pirie (of the Scots Bar) (instructed by Solicitor to the Advocate General for Scotland, Edinburgh) for the Secretary of State.