SJ v Secretary of State for Work and Pensions

This is an appeal to Upper Tribunal concerning the law on ‘right to reside’ and how it affected the appellant’s entitlement to universal credit from 13 January 2025.

I am satisfied on the arguments before me that the First-Tier Tribunal (“FTT”) erred in law in the decision to which it came on 19 June 2025 and that its decision should be set aside as a result.

By its decision, the FTT upheld the respondent’s decision that the appellant was not entitled to universal credit from 13 January 2025 because she did not have a qualifying right to reside in Great Britan.

The key aspects of the FTT’s decision on which this appeal to the Upper Tribunal turns concerns the FTT’s approach to (i) whether the appellant was self-sufficient at the time of her claim for universal credit or (alternatively) (ii) she needed to be awarded universal credit to avoid a breach of her dignity (following SSWP v AT [2023] EWCA Civ 1307).

The material parts of the FTT’s Decision Notice read as follows (I have highlighted in bold the key passages):

“1.

The appeal is refused.

2.

The decision made by the Secretary of State on 30/01/2025 is confirmed.

3.

The appellant is not entitled to Universal Credit from 13.01.25 because she has failed to show that she has a qualifying right to reside.

4.

The appellant came to the UK on 12.12.20. She came with her older son Muhammed, who was one year old. She returned to Italy at the end of January 21 and remained there until 01.12.21 when she returned to the UK with her husband (a Pakistani national). The appellant returned to Italy in July 23 and returned in December 23. She did this in order to obtain an Italian passport for her son. The appellant went to Pakistan in March 24 and returned in September 24. She made her joint application to Universal Credit on 13.01.25. The appellant's older son, Muhammed, began school on 02.09.24. The appellant has had one period of work in the UK in June & July 2023. She worked for Pizza Connection as a cleaner. She was unable to say which days or hours she worked, or her rate of pay. The Tribunal had access to one pay slip from July 23 which indicates that she had earned £1444.84 in total and £722.42 for the period to 05.07.23. The appellant left the work because of her physical health (swollen feet) and in order to return to Italy to obtain her son's Italian passport.She did not intend to, and did not, return to the work and was not in the UK until December 23, by which time her second son had been born. The wage slip indicates that her work ended on 05.07.23. Her baby was born on 28.10.23, which was more than 11 weeks prior to her due date. The Tribunal finds that the appellant has not demonstrated that she was in genuine and effective employment and that she has held worker status whilst her child has been in the UK. There has been no commonality of period between the appellant's job as a cleaner for a brief period in 2023 and her son being in education. The appellant was not at risk of destitution as a result both of her husband's employment and her brother in law's ability to support the family.”

The subsequent reasons for the FTT’s decision provide the following (again the key passages are highlighted in bold):

“5.

Many of the findings of fact have been included in the final decision notice issued on the day. This Statement of Reasons should be read in conjunction with that decision notice.

6.

The appellant claimed UC on 13.01.25. She is an Italian national. The claim was a joint claim with the appellant’s husband…., who is a Pakistani national. The couple have two dependent children (born on 05.12.09 and 28.10.23).

7.

The appellant came to the UK on 12.12.20. She was granted pre-settled status through the EU settlement scheme on 15.01.21.

8.

It is the respondent’s position that having pre-settled status does not give an automatic right to reside which allows access to benefits.

9.

At the time of the claim, the appellant had not been in the UK for a period of 5 years.

10.

The appellant appeals on the basis that she has achieved worker status. The respondent has found that the employment she has reported does not amount to genuine and effective work, but rather was marginal and ancillary.

11.

The appellant has had one period of work for which she has received one payment of earnings on 05.07.23. Her employer is recorded as Pizza Connection. She worked for this organisation for a maximum period of 2 months.

12.

Her representative has averred that such a limited amount of employment can amount to genuine and effective work.

13.

The appellant was pregnant during the period of employment. She was not within the 11th week of her due date when she left her employment. Her second child was born on 28.10.23.

14.

The Tribunal considered whether the work undertaken by the appellant was genuine and effective:

15.

The appellant was extremely vague about everything related to her work. She did not know which dates she had worked at Pizza Connection. She thought she might have worked for some days in June 23. She reported that she had done some work as a cleaner but found that being on her feet impacted upon her health. The appellant did not know what her hours of work had been. She did not know which days she worked or how many days she had worked. She did not know her rates of pay or how much she had been paid. The Tribunal was far from convinced that the pay slips she had submitted reflected actual work done by the appellant.

16.

Given that this is the only work the appellant is said to have done in the last 4 years, the Tribunal finds that it would have been reasonable, and expected, for the appellant to have had some recollection of it. She had very little concrete evidence to offer.

17.

The Tribunal finds that the appellant has not demonstrated that the work was genuine and effective.

18.

Immediately upon her ending the employment she returned to Italy where she remained until December 23. Indeed, the appellant gave evidence that she had stopped work in order to go to Italy. The purpose of her return to Italy was to obtain an Italian passport for her son.

19.

Following her return to the UK she then went to Pakistan in March 24 where she remained until September 24. She was in Pakistan up to the 41st week of her baby being born. She did not intend to return the work up to the 41st week of her baby being born. She was elsewhere in the world for significant periods at this time. She did not remain in the labour market.

20.

The Tribunal finds that the appellant was not a worker, that she did not achieve worker status and that she has not retained worker status.

21.

The appellant appeals on the basis that she is the primary carer of a child in education.

22.

The Tribunal has seen the evidence from the school of the appellant’s older child, Muhammad, and accepts that he has been a child in education since 02.09.24.

23.

The Tribunal finds that there was no commonality between the appellant working and her son attending school. It further finds, as set out above, that she did not achieve worker status.

24.

Documents have been provided which are said to be in respect of the appellant’s child Muhammed. His name is identical to that of his father, and it is not clear to whom the provided document relates.

25.

Contrary to what is set out in the submission, the appellant gave oral evidence that she has done no form of work since July 23, despite more recent attempts to engage with the job market.

26.

The appellant had made 3 applications for support: on 03.01.24, 13.01.25 & 19.02.25. Her representative’s claim that she had not made an application to benefits in 4 years is therefore incorrect.

27.

The appellant’s husband has worked sporadically, and, on the appellant’s evidence, earned insufficient money to support the family. He is registered with an agency which gives him work as and when. He also has medical problems. Benefits were needed to top up the family income.

28.

The Tribunal finds that the appellant did not have sufficient resources to avoid becoming a burden. She is fortunate that family members have been able to assist the family in terms of finances on occasion.

29.

The decision of the Respondent therefore stands and, for the reasons stated above, the appellant’s appeal fails.”

Regulation 9 of the Universal Credit Regulations 2013 is, insofar as is relevant, in the following terms:

“9.

—(1) For the purposes of determining whether a person meets the basic condition to be in Great Britain, …a person is to be treated as not being in Great Britain if the person is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.

(2)

A person must not be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless the person has a right to reside in one of those places.”

Regulation 6(1)(d) of the Immigration (European Economic Area) Regulations 2016 (the EEA Regs) provided pre-Brexit (and still provides for certain saved cases, such as this one) that ““a qualified person” means a person who is an EEA national and in the United Kingdom as a self-sufficient person”.

Regulation 4 of the EEA Regs provided, so far as is relevant on this appeal, that:

“4.

—(1) In these Regulations—

(c)“self-sufficient person” means a person who has—

(i)

sufficient resources not to become a burden on the social assistance system of the United Kingdom during the person’s period of residence..

(3)

In sub-paragraphs (1)(c)….

(a)

the requirement for the self-sufficient person….to have sufficient resources not to become a burden on the social assistance system of the United Kingdom during the intended period of residence is only satisfied if the resources available to the…..self-sufficient person and any of their relevant family members are sufficient to avoid the self-sufficient person …and all their relevant family members from becoming such a burden….

(4)

In paragraph (1)(c)…and paragraph (3), the resources of the ….self-sufficient person and, where applicable, any of their relevant family members, are to be regarded as sufficient if—

(a)

they exceed the maximum level of resources which a British citizen (including the resources of the British citizen’s family members) may possess if the British citizen is to become eligible for social assistance under the United Kingdom benefit system; or

(b)

paragraph (a) does not apply but, taking into account the personal circumstances of the person concerned and, where applicable, all their relevant family members, it appears to the decision maker that the resources of the person or persons concerned should be regarded as sufficient.”

As a matter of EU law, the equivalent provisions are found in Directive 2004/38/EC. Articles 7(1)(b) and 8(4) of that Directive provide so far is material to the issue on this appeal as follows:

“Right of residence for more than three months

7:-1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they….

(b)

have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence….

8:- 4. Member States may not lay down a fixed amount which they regard as ‘ sufficient resources ’, but they must take into account the personal situation of the person concerned. In all cases this amount shall not be higher than the threshold below which nationals of the host Member State become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host Member State.”

I allow the appeal against the FTT’s decision on the two following grounds.

First, in terms of ‘self-sufficiency’, the FTT’s reasons and fact-finding failed adequately to address the levels and types of support (e.g., and per the Decision Notice, “her husband’s employment and her brother in law’s ability to support the family”) the appellant had been provided with throughout the period(s) of her residence in the UK. The FTT did not sufficiently work out in its fact-finding and reasoning all matters relevant to whether (or not) the appellant was self-sufficient throughout the periods of her residence relevant to her claim for Universal Credit. By way of the most obvious example, the FTT gave no sufficient consideration to the support the appellant received from her husband’s income from her husband’s employment and the support provided her brother-in-law.

The reliance by the appellant on Brey in the self-sufficiency assessment is, however, misplaced as the Brey individualised assessments only applies where a right of residence has arisen and has been lost. It does not apply so as to confer a right of residence on a claimant who has not previously had such a right: see VP v SSWP (JSA) [2014] UKUT 32 (AAC); [2014] AACR 25 at paragraph [79].

Second, although the AT ‘destitution’ argument is on the face of it the converse of the self-sufficiency argument (as it would seem to be difficult for both to be true at the same time), having decided that the appellant was not self-sufficient, the FTT’s reasons and fact-finding on ‘AT destitution’ – in the one closing sentence in the Decision Notice highlighted above - fell (well) short of being adequate or sufficient.

It may be the case that neither of the above arguments were at the forefront of the appellant’s grounds of appeal to the FTT (see her 17 April 2025 grounds of appeal). However, the Secretary of State raised both self-sufficiency and ‘AT destitution’ as issues on the appeal (see pages E-G of the Secretary of State’s appeal response to the FTT) and the FTT therefore had to consider those issues and provide an adequate answer on them. Moreover, ‘self-sufficiency’ formed a clear part of the appellant’s written submissions to the FTT (see paragraphs 20-33 of that submission on FTT Addition A, pages 11-12).

The Secretary of State supports the appeal to the Upper Tribunal being allowed on the above two grounds in a helpful submission of 25 November 2025. The material parts of that submission read:

“Insufficient finding of fact for Self-sufficiency

17.

I would respectively submit that the FtT erred in law in failing to consider adequately whether the Appellant satisfied the requirements of a self-sufficient person under Art.7(1)(b) of Directive 2004/38/EC ("the Directive") and reg.4(1)(c) Immigration (European Economic Area) Regulations 2016 (IEEAR 2016) for the purposes of UC.

18.

There are two limbs to the requirement of self-sufficiency under Art.7(1)(b) of the Directive and reg.4(1)(c) IEEAR 2016, namely: (1) sufficiency of resources; and (2) possession of Comprehensive Sickness Insurance ("CSI").

19.

The SSWP can accept, following the decision in VI v Commissioners of HM Revenue and Customs (Case C-247/20), that the Appellant was closely connected and affiliated with the NHS, which can be considered as CSI. However, having CSI is only one part of the self-sufficiency two-part test. Under Article 7(1)(b) of the Directive, economically inactive migrants must, after the first three months' residence, have sufficient resources not to become a burden on the social assistance system of the host Member State.

20.

Having sufficient resources is generally taken to mean that someone's income is above that required to claim means-tested benefits like UC (Regulation 4(4)(a) IEEAR 2016). In practice, this means there is very little overlap between being a self-sufficient person and qualifying for a means-tested benefit.

21.

To be considered self-sufficient, the Appellant must have sufficient resources for herself and any family member who is relying on her for a right to reside. In the case before us, the resources would need to be sufficient enough to include the Appellant's husband and their two children.

22.

The SSWP acknowledges that claiming benefits does not automatically disqualify a person from being self-sufficient. As per the judgment in Pensionsversicherungsanstalt v Brey C-140/12 ("Brey"). In appropriate cases the public authority may need to carry out an overall assessment of the specific burden granting that benefit would place on the national social assistance system as a whole, by reference to the personal circumstances characterising the individual situation of the person concerned (Brey, para 64). Factors which may be of relevance include whether or not the claimant is only experiencing temporary financial difficulties, the amount of aid which would be granted to her/him if the claim was successful and the collective impact.

23.

However, the kind of individualised assessment identified by the CJEU in Brey is only necessary where the individual has established a right of residence under Art.7(1)(b) and their circumstances then change to potentially lose that right of residence (see VP v Secretary of State for Work and Pensions [2014] UKUT 32 (AAC), [2014] AACR 25 ("VP") at [79], [106]-[107], and AMS v Secretary of State for Work and Pensions [2017] UKUT 48, [2018] AACR 27 (second interim decision), ("AMS, 2nd Interim Decision") at [57])). Based on the currently available evidence, this is not the case for the Appellant.

24.

How a claimant establishes a residence right under Art.7(1)(b) of the Directive in the first place was considered by Judge Ward in VP at paragraphs [83]-[84]. Judge Ward stated that to establish self-sufficiency the person will have to show at the start of their period of residence that they have sufficient resources for the "protection of the finances of the state" so as to enable the self-sufficiency condition to be fulfilled "during their period of residence". Judge Ward observes:

"In my view the question, whenever asked, remains: was the person at the beginning of year 1 - and in principle at any other times in the period - able to show sufficient resources to meet the test?". Judge Ward goes onto observe that "I do not accept that a person who could not meet the test on that basis could simply lie low for five years and through a combination of luck and an unusually frugal lifestyle avoid being any kind of burden to the social assistance system and then argue that they have retrospectively shown that they had throughout had the resources to be self-sufficient"

25.

VP also makes clear that it is necessary for the claimant to show a degree of reliability in the claimed resources throughout the intended period of residence (VP at [89]). In the present case the FtT found that, since the Appellant's arrival, extended family have assisted with accommodation and other assistance, but we have no greater understanding of how much support is received. the Appellant's husband’s work is sporadic, at best, which indicates an unreliable resource in terms of self-sufficiency. The couple have never declared any savings, investments or income they had available to them on their arrival to the UK that would sustain them throughout. In short, the FtT made no findings to analyse the Appellant's complete outgoings to see if her husband's earnings and family support is enough to consider her as self-sufficient.

26.

Currently there is not enough evidence to show that the Appellant had sufficient resources to establish a pre-existing right to reside on self-sufficiency grounds prior to her UC claim, nor is it clear what change of circumstances there have been to potentially lose that right, such as to lead to an individual assessment of his circumstances under the principles in Brey.

27.

Further, even if the Appellant had obtained a right to reside on self-sufficiency grounds, which currently is not accepted based on the evidence, then any Brey proportionality assessment would lead to the conclusion that she was not entitled to UC in any event for the following reasons; such an assessment must look at not just the effect of the individual claim on the social assistance system but the accumulation of all such individual claims (C-67/14 Alimanovic at [62]). See also AMS 2nd Interim decision, which confirms that what is required is a collective assessment, i.e., the burden on the social assistance system as a whole (AMS paragraph 51). Guidance on the approach to such an assessment is also given in AMS 2nd interim decision, per Judge Ward at [46]. That assessment required consideration of at least the following factors:

a.

The claimant's "personal circumstances" which characterised his "individual situation" (AMS, [46.a]).

b.

The UK's statutorily prescribed level of benefit requirements (AMS, [46.b]).

c.

The likely future duration of his residence in the UK (AMS, [46.c]).

d.

The amount and regularity of his income (AMS, [46.d]).

e.

The burden which granting the benefit would place on the UK's social assistance system (AMS, [46.e]).

f.

As part of this, it is also necessary to consider the extent to which the claim may be temporary (AMS [46.f]).

28.

The Appellant submitted that she has struggled to obtain any employment since her time at Pizza Connection Kirkstall Ltd. and there is no indication that at the date of claim support provided by the Appellant's family would increase, or that her husband's earnings were to shortly increase (the opposite appears true). So, it is reasonable to conclude that such reliance on social assistance would not be minimal, just to cover "temporary difficulties" (see paragraph 46(f), AMS 2nd Interim Decision and Recital 16 of the Directive), but could be "open-ended" (see paragraph 25 AMS Final Decision). It would be fundamentally contrary to the objective of Art.7(1)(b) of, and Recital (10) to the Directive if a claimant could rely on welfare benefits (whether paid directly or indirectly) as a basis for establishing a right of residence, in order to then claim further social assistance benefits. The Secretary of State should invite the Tribunal to infer such reliance would be an unjustifiable burden.

29.

Taking into account similar reasoning to that put forward in paragraph 25 of AMS Final Decision, the Tribunal should be invited to infer that the circumstances of an EU national in similar circumstances to the Appellant, not otherwise entitled and without adequate funds and potentially being entitled to UC and its passported benefits for an indefinite period, is unlikely to be unusual; and that a particular burden is placed on the state by such persons with young children for whom their material circumstances are unlikely to change for some time. HK v SSWP (PC) [2020] UKUT 73 (AAC), para 41("HK"), also finds that following AMS v SSWP, in practice it will be a very unusual case where applying a personalised assessment will lead to a conclusion in favour of the claimant.

30.

For all the reasons stated above, the Appellant will need to provide substantial evidence to be able to adequately ascertain any entitlement to UC as a self-sufficient person as the SSWP agrees with the Appellant’s representative that he FtT failed to make sufficient findings of fact to establish whether or not the appellant could’ve acquired a RTR as a self-sufficient person.

Insufficient finding of fact for AT

31.

I would respectfully suggest, looking into this aspect of the appeal, that again, there has been an insufficient finding of fact as to whether the AT judgment applies to the Appellant and upon further evidence it would unlikely be the case.

32.

As the Appellant is/was economically inactive, unemployed and without monetary resources at the date of their Universal Credit application, then an AT assessment is appropriate. A key issue here is, did the FtT consider the Appellant was able to work? “In many cases, there will be nothing preventing the applicant from working; if so, that will provide a complete answer to the claim.” ([para 144 of the UT decision as quoted in Secretary of State for Work and Pensions v AT [2023] EWCA Civ 1307 [08 November 2023]). As both the Appellant and her husband have provided evidence of work (albeit hers was marginal and ancillary), the Appellant will need to provide substantial evidence of any barriers that would override this previously provided evidence. The Appellant mentions in her appeal submission that the language barrier prevents her from obtaining work, which may be a valid reason, but the SSWP is of the opinion that the Appellant has not provided sufficient or compelling enough evidence to uphold this assertion.

32.

In addition to the above, the SSWP also compels the Tribunal to consider a full assessment of how the couple and their children are unable to meet their basic needs. As per the instructions laid out in para. 111 of Secretary of State for Work and Pensions v AT [2023] EWCA Civ 1307 (08 November 2023), evidence to demonstrate being unable to meet the following criteria is what the SSWP considers basic needs:

•

Food,

•

Personal hygiene,

•

Clothing,

•

Housing, and

•

Adequate heating.

With this being stated, that the Appellant is required to evidence any lack of meeting their basic needs.

33.

For these reasons the SSWP supports the appeal and urges the Tribunal to investigate these matters further.

The issue of attempting to run both arguments

3[4]. As has been stated in the Determination provided (pgs. 27-28, UT bundle), it seems inherently contradictory that the representative of the Appellant can argue that she is self-sufficient and destitute enough to engage AT concurrently. The SSWP agrees with this observation and is of the opinion that arguing both that the Appellant has enough resources to not be a burden upon the state, but also is so vulnerable that they need to engage with services to meet their most basic needs, negates both arguments. We urge the Tribunal to direct the Appellant’s representative to pick one argument and lead with it. It seems a disservice to the claimant to attempt to run both arguments and will ultimately result in both arguments failing, as evidence provided for the self-sufficiency argument will likely contradict evidence for the AT argument and vice-versa.”