EEA nationals and social assistance

Supreme Court Main Entrance 03521C press office supplied 146x219The Supreme Court has issued a ruling on claims brought by two EEA nationals to claim social assistance in the UK. Riccardo Calzavara analyses the judgment.

Summary

The Supreme Court has held in Mirga v Secretary of State for Work and Pensions, Samin v Westminster City Council [2016] UKSC 1, January 27, 2016 that the right to move freely contained in the Treaty on the Functioning of the European Union, art.21.1 is qualified by limitations which, in turn, permit host states to refuse social assistance to EEA nationals. It further held that the prohibition on discrimination on the basis of nationality contained in the TFEU, art.18 is limited to the scope of the Treaties themselves, which do not assist applicants for homelessness assistance. Finally, it held that proportionality cannot be invoked to entitle a person who was not a “qualified person” to a right of residence and/or social assistance. Both appeals were unanimously dismissed.

The Supreme Court cases

Roksana Mirga was a Polish citizen who came to the UK in December 1998, aged 10. She returned to Poland in 2002 and subsequently settled in the UK with her family on June 8, 2004. Her parents never enjoyed a right to reside in the UK. Ms Mirga finished her education on April 18, 2005 and undertook registered work until November 2005. In February 2006, she began unregistered work and then fell pregnant. On June 20, 2006, she found further unregistered work until July 21, 2006, and on August 4, 2006, she claimed Income Support ([4]-[5]).

As a Polish citizen, Ms Mirga was an A8 national (European Union (Accessions) Act 2003). An A8 national working in the UK during the accession period was an “accession state worker” requiring registration until he had legally worked for an authorised employer for twelve months without interruption after April 30, 2014 (Accession (Immigration and Worker Registration) Regulations 2004/1219, reg.2). This did not apply to Ms Mirga: she was not a “worker” so that she was a person from abroad with no right of residence in the UK and no entitlement to Income Support (Income Support (General) Regulations 1987/1967, reg.21AA) ([26]-[27],[32]-[33]).

On November 11, 2006, the Secretary of State refused her application for Income Support. On July 23, 2007, the First Tier Tribunal dismissed Ms Mirga’s appeal and granted permission to appeal to the Upper Tribunal (Administrative Appeals Chamber). On July 2, 2010, the Upper Tribunal upheld that decision for different reasons ([2010] UKUT 238 (AAC)) Ms Mirga unsuccessfully appealed to the Court of Appeal ([2012] EWCA Civ 1952), it being bound by Zalewska v Department for Social Development [2008] UKHL 2602; [2008] 1 WLR 2602 and Kaczmarek v SSWP [2008] EWCA Civ 1310; [2009] PTSR 897.

Wadi Samin was born in Iraq and was naturalised as an Austrian citizen following his asylum application in 1992. In December 2005, he came to the UK and worked for a total of 10 months. He suffered from post-traumatic stress disorder, depression, diabetes, high blood pressure, and kidney stones; he has attempted suicide ([7]-[8]). In August 2010, he applied to the local housing authority for homelessness assistance (Housing Act 1996, Pt 7). The authority decided (and upheld on review) that he was not eligible for assistance because he was not a “qualified person” (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; [2013] HLR 7; eflash 481, November 21, 2012). The Court of Appeal held that whether a person is temporarily unable to work as the result of illness or accident is a question of fact and it will generally be helpful to ask whether there is a realistic prospect of a return to work (de Brito v SSHD [2012] EWCA Civ 709; [2012] 3 CMLR 24; Konodyba v Kensington & Chelsea RLBC [2012] EWCA Civ 982; [2013] PTSR 13; [2012] HLR 45). It further held that the failure of the review officer to ask whether Mr Samin’s inability to work was permanent was not fatal because she would have come to the same decision if she had applied the statutory test.

In the Supreme Court, the Secretary of State argued that Ms Mirga and Mr Samin were not “workers” because the former had not worked for 12 months before claiming Income Support 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 European Convention on Human Rights, art.8 together with the fact that she had worked, albeit for too short a period, meant that she could not be removed from the UK so that her right of residence under the Treaty on the Functioning of the European Union, art.21.1 could not be cut back by restricting her right to Income Support ([38],[41]). Mr Samin accepted that he could not be a “worker” ([42]) and argued that the refusal of housing assistance constituted unlawful discrimination contrary to TFEU, art.18 ([39],[42]). Both appellants argued in the alternative that if the offending provisions could have the contended effect, it was necessary to show that an unreasonable burden would be placed on the UK and/or the grant thereof would be disproportionate ([38],[58]).

The Supreme Court held that art.21.1 is qualified by the limitations contained in “Treaties and by the measures adopted to give them effect”. This included the 2003 Act and the 2006 Regulations ([12],[43]). An aim of these measures was to ensure that EU nationals could not exercise their rights of residence in another state so as to become an unreasonable burden therein ([44]). Ms Mirga could not be a “worker” and could therefore validly be denied a right of residence in the UK and be excluded from social assistance ([45]). The art.18 right is limited to rights under the Treaties. Mr Samin’s appeal therefore fails ([10],[47]).

The Supreme Court further held that the decisions in Dano v Jobcenter Leipzig (C-333/13) [2015] 1 W.L.R. 2519, CJEU and Jobcenter Berlin Neukolln v Alimanovic (C-67/14) [2016] 2 WLR 208, CJEU undermined the appellants’ arguments that the relevant decisions in their cases were flawed because no consideration had been given to the proportionality of refusing assistance ([48],[66]-[67],[71]): it is unrealistic to require an individual examination in each case. The European jurisprudence does not support such a contention ([55],[68]) and, if proportionality could be invoked to entitle a person who was not a “qualified person” to a right of residence (and/or social assistance) ([69]), a burden would be placed 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.