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Supreme Court to hear case on EU migrants and temporary inability to work

The Supreme Court has agreed to hear an EU national’s appeal over a ruling that he was not eligible for housing assistance from a local authority as his inability to work was not temporary.

Central to the case of Samin v Westminster City Council UKSC 2013/0225 is EU Directive 2004.38/EC, which provides a sliding scale of rights for migrant workers according to their circumstances and the length of time they have been in the destination country. The Directive was transposed by the Immigration (European Economic Area) Regulations 2006.

After three months, the right to reside is given to workers and certain others who are, by one means or another, self-supporting and no burden on the state benefit systems of the destination country.

Under Regulation 6(2)(a) a worker includes a person who is “temporarily unable to work as a result of an illness or accident”.

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The appellant, Wadi Samin, is an Austrian national who arrived in the UK in 2005 and was employed for 10 months.

He was in poor health, with his principal illness being clinical depression. The latter was attributed to prolonged traumatic experiences in the Iraqi army. Samin, who is on medication, has attempted to take his own life.

Samin’s treating psychologist had advised that a complete recovery from his conditions was unlikely, given the events he had experienced, but said it was possible that a more stable environment might improve his mood. His GP also said that a complete recovery was unlikely but that he could improve.

On the issue of returning to work, the psychologist said: “With an improvement in his home situation, and ability to engage in appropriate treatment I would expect that Mr Samin’s mental health would improve and with further support from a suitable agency I would expect that he could return to some form of fruitful employment. However this is not something that is likely for him in the present context, or in the short term.”

In the summer of 2010 the appellant received a lawful notice to quit for the one room studio flat he rented.

Following the notice, Samin applied to Westminster for accommodation but the local authority concluded that he was not entitled to housing provision under the homelessness provisions of Part VII of the Housing Act 1996 on the basis that his inability to work was not temporary.

A reviewer agreed with the council. A circuit judge, to whom Samin appealed on a point of law under s. 204, subsequently held that the reviewer had not made any error of law.

The Court of Appeal gave Samin permission to bring the case. Before it was heard, the court gave a ruling in the De Brito and Konodyba cases, which set out that whether a person met regulation 6(2)(a) depended on whether there were reasonable prospects of a return to work.

In Wadi Samin v Westminster City Council [2012] EWCA Civ 1468 the appellant argued that:

  1. the reviewer did not ask the question whether there were realistic prospects of a return to work;
  2. if she had done so, the answer would have had to be that there were such prospects; but
  3. in any event that was the wrong question because the test to be gathered from the European jurisprudence was whether there was "any chance" of a return to work; and
  4. that if this court did not accept that last proposition, it ought to refer the question to the CJEU for determination there.

The Court of Appeal rejected the appeal. Giving the judgment of the court, Lord Justice Hughes said the reviewer did not specifically ask herself whether Samin's inability to work was permanent or not, nor did she expressly pose the question whether there was a realistic prospect of his returning to work.

“That was because the decisions in de Brito and Konodyba were not then available to her,” he explained. “She asked herself the statutory question, namely whether his inability to work was or was not temporary. That was the right question.”

Lord Justice Hughes said the judge was right to hold that, in the context of this case, her decision that it was not temporary was also a decision that it was permanent.

“Moreover, if she had posed the question in terms of a realistic prospect of return to work, her decision would undoubtedly have been the same,” the Court of Appeal judge continued.

“Mr Samin has, sadly, scarcely worked at all in the time he has been in the UK. His principal disabling illness is plainly of very long standing and the prospect of it changing after more than twenty years sufficiently to get him into work can only be regarded as unrealistic.”

Treatment had been tried and had failed, Lord Justice Hughes said. “[The treating pyschologist's] rather theoretical reference to ‘support from a suitable agency’, even then only in the uncertain and undefined future, does not alter this fact when there is neither agency nor support and no plan which has any realistic prospect of altering Mr Samin's condition to one in which he is fit for employment.”

The Court of Appeal judge said it was “wholly unrealistic, and therefore legally wrong, to categorise Mr Samin as a worker who is continuing to exercise his occupation but temporarily interrupted by illness”.

Lord Justice Hughes acknowledge that it was “a melancholy truth” that this decision necessarily removed from Samin support from which he would have greatly benefited. “That is, however, the inevitable consequence of the carefully calculated scheme of the Directive.”

He added: “Given that permanent incapacity to work which arises before two years of work have been accomplished will generally mean that the claimant is not entitled to most of the benefits of the State in which he wishes to settle, it will inevitably happen that those in greatest need of support (ie those who are permanently unable to work) will be those who are not entitled to it in the new country, although they remain entitled to the support systems available in their own country.

“Mr Samin would undoubtedly be a very significant call on the social benefits systems of the UK if he were entitled to them. In fact, however, he is not.”

The Court of Appeal also concluded that there was no need to refer the case to the CJEU.

The appellant’s lawyers, Miles & Partners, said they would argue before the Supreme Court that the right to reside test which underpinned the relevant homelessness legislation was discriminatory contrary to Article 18 of the Treaty on the Functioning of the European Union.

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