Borovikovs v London Borough of Lewisham & Anor

Mr Justice Morgan:

This is a renewed application by Mr Borovikovs for permission to appeal against the decision of the Upper Tribunal (Administrative Appeals Chamber) which had been released on 21 May 2014. The Upper Tribunal refused permission to appeal on 15 September 2014. The appellant’s application to the Court of Appeal for permission to appeal was first considered on the papers by Hallett LJ and on 17 June 2015 she refused to grant permission to appeal. As I have indicated, the appellant has now renewed his application for permission to appeal and that matter has been the subject of an oral hearing today.

The appellant has had the good fortune of being advised by a Mr Ruffhead, who I think prepared some of the earlier documents before the tribunals but who has certainly prepared a very detailed skeleton argument for the assistance of this court. The appellant has also had the fortune of being represented by counsel, Ms Edwards, who has offered her services pro bono, and in that way I have been able to have before me a considerable amount of material which is said by the appellant to be relevant to the resolution of this application. In addition to Mr Ruffhead’s skeleton argument I have a bundle extending to some 375 pages which contains a number of reported decisions, a number of unreported decisions and a number of enactments in Europe and in this jurisdiction.

The appeal to the Court of Appeal is a second appeal because the Upper Tribunal was itself considering an appeal from the First-tier Tribunal. The law is that an appeal to the Court of Appeal of this kind is available on a point of law only (see section 13 of the Tribunals. Courts and Enforcement Act 2007). In order for the Court of Appeal to be persuaded to grant permission to appeal, whether in the case of a first appeal or a second appeal, the court must be satisfied that the appeal has a real prospect of success or there is some other compelling reason for the Court of Appeal to hear the appeal. In addition, in the case of a second appeal from the Upper Tribunal there is a separate statutory instrument which lays down a second appeal requirement. That is that the appeal must raise some important point of principle or practice or again there must be some other compelling reason for the Court of Appeal to hear the appeal.

The argument today has focused upon the question whether the appeal has a real prospect of success. The original claim made by the appellant was a claim to housing benefit under the Housing Benefit Regulations 2006. There was also a separate claim to council tax benefit. However, happily the same considerations apply to both claims and I will consider the claim to housing benefit alone as the result in that case will be the result in the council tax benefit case also.

The claim for housing benefit was made in November 2010 and the claim was not accepted by the local authority by its decision dated 14 December 2010. Accordingly it is relevant to refer to the provisions of the Housing Benefit Regulations 2006 as they stood at that time. Those regulations have been amended since that date but I think the relevant regulations have not been changed between December 2010 and today, so far as is relevant to this case.

Regulation 10 of the 2006 Regulations has the effect that a “person from abroad” is effectively prevented from claiming housing benefit because Regulation 10(1) provides that a person from abroad is treated as if he is not liable to make payments in respect of a dwelling. Regulation 10(2) provides that a “person from abroad” means in effect a person who is not habitually resident in the United Kingdom, and by regulation 10(3) a person is treated as not habitually resident in the United Kingdom unless he has a right to reside in the United Kingdom. So following the somewhat convoluted drafting of Regulation 10, the question becomes: was the appellant in December 2010 a person who had a right to reside in the United Kingdom?

The appellant has a Latvian passport. The Latvian passport shows that he is what is called in Latvia a Latvian alien or a Latvian non-citizen. The appellant’s wife (who is relevant for reasons that will emerge) is a Latvian citizen and a Latvian national. Latvia is of course a member of the EU.

The Upper Tribunal, hearing an appeal from the First-tier Tribunal, reached the conclusion that the appellant was not entitled to housing benefit and in particular he did not have a right to reside in the United Kingdom within the meaning of Regulation 10. The Upper Tribunal dealt with a large number of arguments that were put before it. It reached the following determinations, some of which were matters of fact where it based itself on the findings of the First-tier Tribunal and some of it were its own conclusions of law. It held the following:

The First-tier Tribunal had held that the appellant was a Latvian non-citizen or a Latvian alien based on what was stated in his passport.

There was nothing in the argument that this finding involved a mistranslation of the passport.

The fact that the appellant was not a Latvian citizen meant that he was not a Latvian national,

Because the appellant was not a Latvian national, it could not be said he had a personal right to reside in the United Kingdom.

If the appellant’s wife had a right to reside in the United Kingdom then the appellant as a family member would also have had a right to reside in the United Kingdom.

If the appellant’s wife had been self-employed, as had apparently at one time been claimed, then she would have had a right to reside in the United Kingdom.

The First-tier Tribunal had found and was entitled to find on the facts that the appellant’s wife was not self-employed.

Assuming that it had been argued before the First-tier Tribunal that the appellant’s wife was self-sufficient, the evidence did not support such an argument. The evidence instead showed that the appellant’s wife was dependent upon the appellant and she was not self-sufficient having regard to her own resources.

Various residence documents that had been put in before the Upper Tribunal did not contradict any of the above findings.

The result of the above was that the appellant did not have a right to reside in the United Kingdom.

This result was not unlawfully discriminatory. For this purpose the Upper Tribunal referred to Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11 and Abdirahman v Secretary of State for Work and Pensions [2008] 1 WLR 254.

As to the reliance placed on the European Convention on Social and Medical Assistance (referred to as ECSMA), it had been decided in Yesiloz v London Borough of Camden & Anor [2009] EWCA Civ 415 that nationals of states governed by that Convention did not thereby acquire a right to housing benefit.

There could be no challenge to the provisions in Regulation 10 of the 2006 Regulations dealing with persons from abroad.

The appellant now wishes to put forward four grounds of appeal in support of his appeal to the Court of Appeal. In summary, they are:

He is an EU citizen.

He is a national of Latvia for the purposes of ECSMA.

His wife is a national of Latvia and has a right to reside in the United Kingdom, and he as a family member of his wife also has a right to reside in the United Kingdom.

If the third ground of appeal fails then the law is indirectly discriminatory.

As I have indicated, I have been greatly assisted in considering the arguments in this case by the detailed skeleton argument of Mr Ruffhead and the materials he has provided and the further elaboration in oral argument by Ms Edwards.

Having considered the arguments put forward on behalf of the appellant, I am not persuaded that the intended appeal has a real prospect of success. I will therefore refuse permission to appeal. I will give my reasons fairly briefly addressing each of the four grounds of appeal put forward.

The first ground of appeal

The first contention is that the appellant is an EU citizen. He says his Latvian passport has been mistranslated. On the findings of fact of the First-tier Tribunal his passport has not been mistranslated. Ms Edwards showed me a copy of the relevant page of the passport and it seems that the relevant text is in the English language and indicates that Latvia treats the appellant as having a status other than that of Latvian citizen. It treats the appellant as an alien. The contrast is quite clear when one considers the position of the appellant’s wife. I have seen the relevant page of her passport and she is treated in Latvia as a citizen or national of Latvia. So it is clear on the facts of this case that Latvia regards the appellant as a non-citizen. However, he submits that even though he is not a Latvian citizen under Latvian law he is a national of Latvia and therefore a national of an EU Member State. He says that even if he is not a Latvian national under Latvian law he is a Latvian national under international law and under EU law. The detailed exposition in the written submissions of Mr Ruffhead amount to assertion but I am not able to find there anything persuasive that those assertions do indeed represent European law. My conclusion is that it is clear that the appellant is not a national of Latvia, is not a national of a Member State of the EU and is not an EU citizen.

The second ground of appeal

The appellant relies upon his status under ECSMA. It is not necessary for today’s purposes to go to the detailed provisions of ECSMA. That is because there is a binding decision of the Court of Appeal on the relevance of ECSMA in a case like the present concerning a claim to housing benefit governed by Regulation 10 of the relevant regulations. The case is Yesiloz v London Borough of Camden & Anor. I have been provided with a copy of the judgment in that case. The judgment was that of Pill LJ, with whom the other members of the court agreed, and paragraphs 31 and 32 of Pill LJ’s judgment mean that the ground of appeal in the present case based on ECSMA cannot succeed at Court of Appeal level.

The third ground of appeal

The third ground of appeal is that the appellant’s wife is exercising rights under Directive 2004/38/EC of the European Parliament and of the Council. That Directive has been implemented in the United Kingdom by the Immigration (European Economic Area) Regulations 2006. The appellant says that his wife qualifies under Article 7 of the Directive. In particular he says that she has sufficient resources within Article 7(1)(b), which introduces the requirement that the person asserting a right of residence has sufficient resources for him or herself and their family members. I have also referred to the definition of “self-sufficient person”, as that was the phrase used by the Upper Tribunal, which definition appears in Regulation 4 of the Immigration (European Economic Area) Regulations 2006. On the facts it seems that the appellant’s wife’s own resources could not be said to be sufficient for herself and her husband. The appellant however argues that a person without their own resources can nonetheless have sufficient resources for the purpose of the Directive and be a self-sufficient person for the purpose of the UK regulations if they are living with a family member and that family member has adequate resources.

In my judgment that argument does not work. One has to begin with the position of the person who claims the right to reside in his or her own right. One asks whether that person has sufficient resources for him or herself and a family member. If that person does not then they do not qualify under Article 7. If they do not qualify under Article 7 then the family member cannot claim to be a family member of a person who has a right to reside. Accordingly I would not accept the third ground of appeal has any real prospect of success.

The fourth ground of appeal

This ground of appeal arises in view of my conclusion on the third ground of appeal. It is said that my conclusion in relation to the third ground of appeal demonstrates that the relevant provisions are being applied in a way which is indirectly discriminatory as it will be more difficult for a husband to make a relevant claim to housing benefit and other rights by relying on the position of his wife as a self-sufficient person with a right to reside as compared with a similar claim being made by a wife relying on the position of her husband as a self-sufficient person with a right to reside. It should be noted that it is not claimed that the discrimination is direct but rather that it is indirect. It is said to be indirect because it is said that the consequences of the distinctions made in the Regulations are liable to result in practice in a discriminatory effect. It should also be noted that the alleged discrimination is not on the ground of nationality as was the position in the Patmalniece case, but instead the discrimination is said to be on the ground of gender. It should further be noted that the provision which is said to be infringed by the alleged indirect discrimination is Article 14 of the Convention on Human Rights and Fundamental Freedoms.

This ground of appeal faces many obvious problems. First, I do not think that the appellant established before the fact-finding tribunal, the First-tier Tribunal, the necessary facts to demonstrate indirect discrimination. I do not think that indirect discrimination proves itself in this case. Secondly, I am not clear that a refusal to award housing benefit is within the ambit of any of the other articles of the Convention. Article 14 applies where there is discrimination in relation to a matter which is within the ambit of one of the other articles. Thirdly, it is not submitted that if a particular reading of the Regulations is discriminatory I can reinterpret the Regulations under section 3 of the Human Rights Act. If there is discrimination in contravention of Article 14 the appellant might be able to contend that he should have a declaration of incompatibility but that does not give him an award of housing benefit.

I have now dealt with the four grounds of appeal which have been put forward. My conclusion is that no one of them has a real prospect of success. The matter has been ventilated both before the First-tier Tribunal and the Upper Tribunal. I do not see that there is a compelling reason for the matter to be considered by the Court of Appeal, so even if this had been a first appeal and the first appeal criteria were to apply it would not be appropriate to grant permission to appeal. In those circumstances it is not necessary to consider whether the criteria for second appeals are satisfied.

Order: Application refused