AR v Secretary of State for Work and Pensions

I am satisfied on the arguments before me that that the First-Tier Tribunal (“FTT”) erred materially in law in the two decisions to which it came on 7 March 2025 and that both decisions should be set aside as a result.

The FTT had before it two appeals made by the appellant. Subject to what is said in paragraph 18 below, the first was against a decision dated 28 November 2023 and the second was an appeal against the Secretary of State’s decision of 19 July 2024. Those decisions had held that the appellant did not have a qualifying right to reside in Great Britain for the purposes of universal credit from, respectively, 25 June 2023 and 19 July 2024.

The appellant had a number of grounds of appeal before the FTT against both decisions of the Secretary of State. One of his grounds was based on him being the spouse of a person (NA); though he was no longer living with and had separated from NA. The appellant argued that he had a right to reside based on NA herself either having a permanent right to reside or her having a right reside as a self-employed person or as someone with retained worker status.

In my judgement the FTT erred in law in failing adequately to explain why it did not accept that the appellant had a right to reside based on NA having retained her worker status.

The FTT dealt with this aspect of the appeal(s) before it at paragraphs 14-16 of its reasons:

“14…..the appellant claims his wife has always been a qualified person, with no break. The evidence of the respondent, however, is that the appellant has failed to demonstrate that his wife has remained qualified. The appellant claims the respondent, under Kerr has not provided evidence reasonably asked for, in particular his wife’s NI records. The couple separated in 2018. I asked the appellant’s representative if the appellant believes he is entitled to this information as to his estranged wife’s records, as this information is her information for the purposes of GDPR. Mr Gilbert [the appellant’s representative] says that the respondent simply assert that she is not a qualified person rather than provide evidence, and says this information should be provided to the tribunal who can decide if this should be disclosed to the appellant.

15.

If I look at the respondent case, it is submitted that, from information they have, the appellants wife left employment with the NHS and stopped working in May 2023. There are 2 sets of appeal papers. There is evidence suggesting she stopped salaried working in May 2023, having left full time, but that she declared going freelance. However, in the second bundle she seemingly had 3 small payments from Salford council in 2024. I was satisfied that the appellant had been given some information from the respondent, and secondly, 3 payments only, I found is insufficient evidence to demonstrate she remained a qualified person. If I revisit Kerr, then, I cannot fail to note and take as relevant the fact that Mr Gilbert informed me that he had not actually asked the respondent for the appellants NI records. To then criticise the respondent for failure to provide such evidence, does not promote the argument.

16.

As for the second ground. The appellant, via his representative, directed the tribunal to what was seen as evidence of the appellant working freelance which it was argued reasonably suggested she was self-employed and as such that the appellant could derive a right to reside from her on this basis. The information submitted by the appellant was meagre and I am satisfied that the appellant failed to demonstrate that he could rely upon his wife’s status in order to be entitled to Universal Credit.”

The FTT approach was therefore, on the face of these paragraphs, that the appellant had not provided sufficient evidence to make out these parts of his grounds of appeal and, in addition, the Secretary of State had done enough (given he had access to NA’s details) to discharge the Kerr [2004] UKHL 23 duty to provide what documents it could.

I agree with the appellant that given the Secretary of State accepted the appellant’s wife (NA) was a worker until May 2023 and she was then awarded universal credit, it is difficult to understand from the FTT’s reasoning why she was not a qualified person (i.e., someone with a right to reside) at the relevant time. In essence, it is the FTT’s failure to grapple with these points concerning NA that renders its reasoning materially deficient.

The Secretary of State (who was the one in possession of the information relating to NA’s award of universal credit) offered no evidence as to the date of NA’s claim for universal credit or whether, as part of that claim, she had declared she was looking for work. Without that information, the evidence was that NA had worked up until May 2023 and was then on benefits. Given this, I further agree with the appellant that as NA’s children were of an age where they would have been in school, then unless NA was herself disabled or a carer she would have been in a full conditionality group on being awarded universal credit. And if that was the case, there was an evident issue as to whether NA’s worker status had been retained after her work had ended.

The FTT on the face of its reasoning only considered whether NA remained a qualified person through working or being self-employed (per paragraph 15 of its reasons), and failed to give any reasoning addressing NA’s retention of worker status. On the face of the evidence before the FTT, that ‘retention of worker status’ basis for NA having a right to reside at the time for the appellant’s first claim for universal credit was plainly a possibility. The FTT either failed in its inquisitorial duty to investigate this issue (per AS v Secretary of State for Work and Pensions (UC) [2018] UKUT 260 (AAC)) or it failed in its reasoning to address this issue. Either failure amounts to a material error of law in my judgement.

Those failures had a continuing effect in relation to the second appeal before the FTT as whether NA was (then still) in receipt of universal credit on the basis she was looking for work would require the question of whether she (still) retained worker status under Article 7(3)(b) of EC Directive 2004/38 to be addressed.

I should add that, in fairness, the appellant has pointed to evidence in one of the FTT appeal bundles (in the FTT appeal reference ending 1204) about whether NA in the Secretary of State’s view had retained her worker status. Thus, having accepted that NA had worked (and had a right to reside as such) until May 2023, the Secretary of State went on at page [F] in the 01204 FTT bundle:

“Departmental records support [NA] as being a worker up to May 2023 however there is then insufficient evidence of her being a qualified person, following the end of this employment, for the purposes of a claim to UC”.

Elsewhere in the papers in the 01204 FTT bundle it seems reasonably clear that NA was also claiming universal credit (including for the couple’s two children). At page 11 of the 1204 FTT bundle it is recorded that “Departmental records show [NA] last worked in June 2023 and she is claiming for herself and two children”, and at pages 18 and 24 in the same FTT bundle in letters from Secretary of State it is said that NA had failed to retain her worker status.

The Secretary of State submission on this appeal to the Upper Tribunal (see below) touches on NA having had a right to reside (and entitlement to universal credit) on a basis other than her having retained her worker status. Whether that is so, and whether the Secretary of State in the above extracts from the 01204 FTT bundle is correct in his view that NA had not retained her worker status at any time relevant to the two claims for universal credit made by the appellant, may well be in issue before the new FTT that redecides the two appeals. However for present purposes the key point is that the FTT in its decision of 7 March 2025 did not address whether the appellant had a right to reside because his wife had retained her worker status.

The Secretary of State supports the appeal being allowed on the ground on which I have allowed this appeal in a submission to the Upper Tribunal dated 8 January 2026. The material parts of that submission read as follows (it refers to the appellant’s wife as NR rather than NA, though nothing turns on this):

“9.

I respectfully submit that the FtT have erred in law by giving inadequate reasons as to how it concluded that the claimant no longer had a right to reside.

10.In this case, the FtT concluded that the claimant’s wife (NR) is not a qualified person. NR’s employment history was considered up until May 2023, but it does not seem to have looked fully beyond that due to NR opening her own UC claim. As NR is a EEA national, if upon looking at her UC claim, it was determined she was a qualified person due to having retained worker status, the claimant would continue be able to derive his right to reside from her. He can still rely on being her family member, despite their separation. It is only upon legal termination of the marriage that this right would stop.

11.However, it is noted that NR has custody of the children. She may now be deriving her right to reside as a primary carer of a child in education. In this instance NR would not have a qualifying right to reside of her own, she would be deriving it from her children for UC purposes. If this was the case, then AR would not be able to derive his right to reside from her. It is not possible to derive from a derived right.

12.The following was held in Kerr v Department for Social Development (Northern Ireland) [2004] UKHL 23 which states:

‘15. In this situation there is no formal burden of proof on either side. The process is essentially a fact-gathering exercise, conducted largely if not entirely on paper, to which both the claimant and the department must contribute. The claimant must answer such questions as the department may choose to put to him honestly and to the best of his ability. The department must then make such inquiries as it can to supplement the information which the claimant has given to it. The matter is then in the hands of the adjudicator. All being well, the issue of entitlement will be resolved without difficulty.

For the reasons set out above, the appeal succeeds. The Upper Tribunal is not able to re-decide the two first instance appeals. Those appeals will therefore have to be re-decided afresh by a completely differently constituted FTT, after an oral hearing.

The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether either of his appeals will succeed on the facts before the new FTT, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.

The new FTT will not be limited to deciding whether the appellant had a right to reside on his appeal based on his wife having retained her status as a worker. All relevant arguments will be open to the appellant. For the avoidance of doubt, that may include whether NA might have been self-sufficient in reliance on the income which the appellant himself may have earned during what is said by him to have been 11 years of employment/self-employment, and thus whether he could had established a permanent right of residence on this basis.

I add finally that the appellant has raised an issue about the effective date of the Secretary of State’s decision in the FTT appeal with the FTT reference ending 01204. That issue was not addressed by the Secretary of State in his submission to the Upper Tribunal. I simply set out what the appellant has said about this and ask that the Secretary of State provides a further submission to the new FTT which addresses this issue.

“19.

It is not at all clear what the decision making history is and what the effective dates of the decision are in this appeal.

20.

At some points the SSWP indicates that she thought she was superseding a 2019 decision awarding UC as there had been a change of circumstances in that a new claim was submitted. But this is nonsense - that award had ended. Thus a new decision was needed.

21.

It is not clear whether the decision of 28/11/2023 was a supersession or a revision of the decision of 25/06/2023 which had been given in respect of the claim made from 25/01/2023 or what its effective date is.

22.

On the face of the evidence then NA was working until May 2023 so for at least the period 25/01/2023 until when she stopped work there was entitlement. That would seem to mean entitlement should have lasted until then- but it is not clear at all if that is what the SSWP decided or what the FTT endorsed.”