Riccardo_useThe Supreme Court heard this appeal on 9-10 March 2015 and handed down judgment, delivered by Lord Neuberger PSC, on 27 January 2016. The court held that (i) the free movement right in the Treaty on the Functioning of the European Union (“TFEU”) is qualified, so that host states may refuse to provide social assistance to EU nationals; (ii) the TFEU prohibition on nationality-based discrimination is restricted and does not assist applicants for homelessness assistance; and (iii) “proportionality” cannot be invoked to entitle a person who is not so qualified to social assistance.

Background – Mirga

Roksana Mirga, a Polish citizen, first moved to the UK in December 1998. Some four years later she returned to Poland, subsequently settling in the UK in June 2004. Due to their circumstances, her parents never enjoyed a right to reside here. Ms Mirga completed her education in April 2005 and undertook “registered” work until November 2005; she began unregistered work in February 2006 before falling pregnant. In June 2006, she found unregistered work for one month. She claimed Income Support in August 2006 ([4]–[5]).

Ms Mirga was an A8 national under the European Union (Accessions) Act 2003. An A8 national working in the UK during the accession period was an “accession state worker” requiring registration until she had legally worked for an authorised employer for twelve months without interruption after 30 April 2014 (cf Accession (Immigration and Worker Registration) Regulations 2004/1219, reg.2). Ms Mirga never attained “worker” status so that she remained a person from abroad with no right of residence in the UK and no entitlement to Income Support (by virtue of the Income Support (General) Regulations 1987/1967, reg 21AA) ([26]–[27], [32]–[33]).

Her application for Income Support was, accordingly, refused in November 2006. Appeals to the First-Tier Tribunal, Upper Tribunal (Administrative Appeals Chamber) ([2010] UKUT 238 (AAC)), and Court of Appeal ([2012] EWCA Civ 1952) were dismissed. The Court of Appeal was bound by the decisions in Zalewska v Department for Social Development [2008] UKHL 67; [2008] 1 WLR 2602 and Kaczmarek v Secretary of State for Work and Pensions [2008] EWCA Civ 1310; [2009] PTSR 897.

Background – Samin

Wadi Samin was naturalised as an Austrian citizen in 1992. He moved to the UK in December 2005 and worked for 10 months. In August 2010, he applied to the local housing authority for homelessness assistance (Housing Act 1996, Pt 7). They decided (and upheld on review) that he was not eligible for homelessness assistance because he was not a “qualified person” (under Immigration (European Economic Area) Regulations 2006/1003, reg 14) ([9], [34]).

Mr Samin’s appeals to the county court and Court of Appeal were dismissed ([2012] EWCA Civ 1468; [2013] 2 CMLR 6). The Court of Appeal held that whether a person’s inability to work as a result of illness or accident is temporary is a question of fact in respect of which one should ask whether there is a realistic prospect of a return to work (de Brito v Secretary of State for the Home Department [2012] EWCA Civ 709; [2012] 3 CMLR 24; Konodyba v Kensington & Chelsea RLBC [2012] EWCA Civ 982; [2013] PTSR 13).

The Supreme Court – submissions

In the Supreme Court, the Secretary of State argued that neither of the appellants was a “worker”: the former had not completed 12 months of registered work and the latter had not worked for 12 months and was now incapable of work ([36]–[37]).

Ms Mirga submitted that her right under the ECHR, art 8 taken with the fact that she had undertaken some work meant that she could not lawfully be removed from the UK. This meant that her right of residence under the TFEU, art.21.1 could not be restricted by denying her right to Income Support ([38], [41]). Mr Samin accepted that he was not worker ([42]) but argued the denial of homelessness assistance constituted unlawful discrimination contrary to TFEU, art 18 ([39], [42]). Both argued (in the alternative) that if the offending provisions had the effect contended by the Secretary of State, he had to show that it would place an unreasonable burden on the UK and/or its grant would be disproportionate ([38], [58]).

The Supreme Court – judgment

The Supreme Court held that TFEU, art 21.1 is qualified by the wording beneath art 20: “These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder”. The 2003 Act and the 2006 Regulations are such measures ([12], [43]). One aim of the legislation was to ensure EU nationals’ exercise of their rights of residence could not become an unreasonable burden on the UK ([44]). Ms Mirga was not a “worker”; she could validly be denied a right of residence and be excluded from social assistance: her appeal failed ([45]).

Mr Samin’s appeal also failed because the TFEU, art 18 right is limited to the Treaty ([10], [47]).

The Supreme Court further held that the decisions in Dano v Jobcenter Leipzig (C-333/13) [2015] 1 WLR 2519, CJEU and Jobcenter Berlin Neukolln v Alimanovic (C-67/14) [2016] 2 WLR 208, CJEU undermined the appellants’ argument that the fact that no consideration had been given to the proportionality of refusing assistance rendered the decisions affecting them flawed ([48], [66]–[67], [71]). EU jurisprudence does not support the contention that an individual examination is required in each case ([55], [68]). Further, if proportionality could be invoked to give a non-“qualified person” a right of residence (and/or entitlement to social assistance) ([69]), there would be a burden on host states and the thrust of the 2006 Regulations (and Directive 2004/38/EC) would be undermined.

Riccardo Calzavara is a barrister at Arden Chambers.