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29 MAY 2013

R (on the application of Sanneh) v The Secretary of State for Work and Pensions and Another [2013] EWHC 793 (Admin); (2013) PLLR 061

Immigration - Community Care - Benefits - Leave to remain

There was no realistic prospect of the Claimant and her daughter leaving the UK, and thus no danger of there being a breach of the daughter's rights as an EU citizen.

10 April 2013

Administrative Court

Hickinbottom J

(1)        The Claimant, a Gambian national, arrived in the UK in 2006 on a student visa. The visa expired in December 2009, but the Claimant overstayed. By this claim, the Claimant alleged that as a primary carer of a British citizen (her daughter) she has a right to reside because her removal would deprive her daughter of her rights as an EU citizen.

(2)        The Claimant's various applications for social security benefits had been refused. She contended that denying her these benefits forced her to leave the UK, the result of which forced her daughter to leave the UK.

(3)        Nonetheless, during oral submissions the Claimant accepted that she would not leave the UK due to economic pressure because, under section 17 of the Children Act 1989, she was entitled to support from to prevent breaches of EU law and human rights obligations.

(4)        The Claimant also challenged the Defendant's refusal to make interim payments pending resolution of the issues.

(5)        HELD: The Court held that there was no doubt that the decisions to refuse interim payments were lawful. HMRC and the Secretary of State are prohibited from making interim payments whilst an appeal against a refusal to provide income support was pending.

(6)        The Court found that the Claimant had not proved that her daughter's rights as an EU citizen had been jeopardized by the Defendant not paying the Claimant benefits.

(7)        The Claimant and her daughter had lived in the UK for 4 years without benefit support. Given this, the First-tier and Upper Tribunal Judges had been entitled to conclude that despite having limited financial resources, there was no realistic prospect of the Claimant having to leave the UK before her benefits entitlement was resolved.

(8)        The Court did not accept that the Claimant must be accorded a right to residence and access to benefits. Given that the Claimant's daughter's rights as an EU citizen were not in jeopardy, EU law was not triggered to protect such rights. The Court dismissed the claim for judicial review.

Claim dismissed

Key Paragraphs

[76] - Interim payment decisions lawful.

[95] - No risk to rights of EU citizen.

[97] - Children Act protection.

[99] - No right residence.

[103] - EU law not triggered.

[116] - Conclusion. 

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