The Supreme Court recently delivered judgment in the case of Patmalniece (FC) v SoS for Work and Pensions. Mrs Patmalniece, a 72-year-old Latvian, came to court claiming that she was entitled to UK State Pension Credit even though she had never worked in the UK and did not even have the right to reside in the UK. Most people would probably consider this claim entirely unacceptable. The plot, however, thickens. The issue that the Supreme Court had to consider was whether the UK rules discriminated against people on the basis of their nationality.

The UK rule stated that you were entitled to the State Pension Credit (‘SPC’) only if you had the right to reside in the UK. Whilst UK citizens held such a right by virtue of the fact that they were a citizen of the UK, nationals of other EU Member States had to earn it. The Supreme Court ruled that the UK rules were indirectly discriminatory but that they could be justified.

Lord Hope, for the majority, rejected the claim of Mrs Patmalniece, represented by Simon Cox of Doughty Street. In agreeing with the Government, represented by Clive Lewis QC, he emphasised that most, but not all, UK nationals would meet the criteria. This is because the litmus test was whether the UK national was ‘habitually resident’ in the UK. Crucially, ‘nationality alone does not enable them to meet the requirement’. Consequently, even some UK nationals would not be able to claim SPC. This indirect discrimination could be justified ‘to prevent exploitation of welfare benefits by people who came to this country simply to live off benefits without working or having worked here.’

The most interesting judgment in the case was the dissent by Lord Walker. He emphasised how the line between direct and indirect discrimination is not so straightforward, especially in the context of justifications. Remember that direct discrimination cannot be justified, whereas indirect discrimination can. Referring to AG Jacobs in Schnorbus, a case of sex discrimination, he agreed with the opinion that,

discrimination is direct where the difference in treatment is based on a criterion which is either explicitly that of sex or necessarily linked to a characteristic indissociable from sex. (emphasis added)

Although reluctantly agreeing that the case was one of indirect discrimination, this element of ‘indissociability’ undoubtedly encouraged Lord Walker to maintain that,

…the correlation between British nationality and the right to reside in Great Britain is so strong that the issue of justification must in my view be scrutinised with some rigour.

Lord Walker went on to find that the indirect discrimination could not be justified. For him, these rules were ‘probably aimed at discriminating against economically inactive foreign nationals on the grounds of nationality’. The discrimination…

Even though classified as indirect discrimination…is not capable of justification because the proposed justification, once examined, is founded on nationality.

And surely he has a point. To reiterate this, he used an example:

If the appellant (who is now aged 72) had been a British national who had gone to Latvia 50 years ago, but was in all other respects in the same position – that is, had come to England in 2000 with no family, friends or other human or financial resources here – she would not be excluded, and the only reason for that difference is her nationality.

In other words, compare the position of an economically inactive UK national with an economically inactive non-national. The UK national, having a right to reside in the UK, can automatically become habitually resident. The economically inactive non-national, however, is essentially barred from having the right to reside, and therefore be habitually resident, by virtue of the fact that she is economically inactive. As Lord Walker pointed out, ‘the only reason for that difference is her nationality.’

So whether or not you agree with the proposition that someone like Mrs Patmalniece should be getting her SPC, there is a strong case for saying that her nationality was determinative in the discrimination she suffered. Of course, if the Supreme Court had decided the other way it would have resulted in the now routine condemnation by much of the mainstream media of any decision in favour of non-nationals due to of European law. Ultimately, however, could this be another case of direct discrimination distorted into an indirect discrimination framework in order to be justified away? Perhaps the solution is to accept that, sometimes, direct discrimination can be justifiable in certain circumstances.

This posted originally appeared on the Law Think blog and is reproduced with permission and thanks