A Polish national refused income support and an Austrian national refused homelessness housing assistance argued that United Kingdom residence conditions breached their EU rights. The Supreme Court held that neither had a right of residence as a worker or a self-sufficient person, so they could be excluded from those benefits. Refusing the benefits was not unlawful discrimination or expulsion, and the authorities did not have to assess proportionality in every case.
The appeals were heard together because both challenged the use of residence conditions to refuse social assistance to EU citizens. Roksana Mirga appealed the refusal of income support. Wadi Samin appealed Westminster City Council’s refusal of housing assistance under the homelessness provisions of the Housing Act 1996. The Court of Appeal had upheld both refusals. Lord Neuberger gave the judgment of the Supreme Court, with which Lady Hale, Lord Kerr, Lord Clarke and Lord Reed agreed.
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Ms Mirga’s claim
Ms Mirga was a Polish national who returned to the United Kingdom with her family after Poland joined the European Union.
Ms Mirga finished her education in April 2005 and did registered work until November 2005. In 2006 she became pregnant, did some further work which was not registered, and in August claimed income support because of her pregnancy. Her son was born in October. The Secretary of State refused the claim. The First-tier Tribunal upheld the refusal. The Upper Tribunal affirmed it for different reasons: she had no right of residence under the Accession (Immigration and Worker Registration) Regulations 2004 (the A8 Regulations), and was therefore excluded from income support. The Court of Appeal agreed.
Mr Samin’s claim
Mr Samin was an Austrian citizen. He had worked only briefly in the United Kingdom and was unable to work when he sought housing assistance.
After leaving temporary accommodation he lived in a studio flat, which he had to vacate in June 2010. He then applied to Westminster for housing assistance. The Council decided that he was a person from abroad who was not eligible, because he had no right of residence under the Immigration (European Economic Area) Regulations 2006. The county court and the Court of Appeal upheld that decision.
The residence conditions
Income support is available only where, among other conditions, a person’s income is below an applicable amount. A “person from abroad” is treated as having an applicable amount of nil and is therefore ineligible. A person is not treated as a person from abroad if, relevantly, he or she is a worker within Directive 2004/38/EC. Housing assistance for people who are involuntarily homeless and in priority need is likewise unavailable if they are not eligible. Under the applicable eligibility regulations, a person from abroad may be eligible if he or she is a worker for the purposes of being a “qualified person” under the EEA Regulations.
The EEA Regulations were intended to implement the 2004 Directive. A qualified person may reside for more than three months and includes a worker, self-employed person, student and self-sufficient person. A self-sufficient person must have sufficient resources not to burden the United Kingdom social assistance system and comprehensive sickness insurance. For nationals of eight states which acceded in 2004, including Poland, the A8 Regulations added a transitional condition while they were in force. Those nationals could not become qualifying persons unless they had completed 12 months’ continuous registered employment. The A8 Regulations were revoked in May 2011, after Ms Mirga’s claim.
The Secretary of State contended that Ms Mirga was a person from abroad: as an A8 national she had not completed 12 months’ registered employment, and she was not a jobseeker, self-employed, a student or self-sufficient. She had no significant means and no health insurance. The Council contended that Mr Samin was not a worker, including because he was unable to work and had not worked for 12 months, and was not self-sufficient because he had no assets and no health insurance. It was accepted that his inability to work meant he could not claim to be a worker.
Free movement and equal treatment
Ms Mirga’s principal argument was that article 21.1 of the Treaty on the Functioning of the European Union gave her a right to reside freely in the United Kingdom. Counsel said she was a worker whose work had been temporarily interrupted by pregnancy, and that denying income support when she needed it to live here would in practice force her to return to Poland. The argument was also put on the basis that article 8 of the European Convention on Human Rights meant she could not be removed, so that Treaty right could not be cut back by the 12-month registered-employment condition.
Mr Samin’s principal argument was different. He said that refusing housing assistance discriminated on grounds of nationality contrary to article 18 of the Treaty, even if he had no right of residence, because a United Kingdom citizen or a qualifying worker from another member state in the same position would have received it.
Lord Neuberger held that both arguments failed. The article 21.1 right is expressly subject to limitations and conditions in the Treaties and in measures adopted to give them effect, including the 2004 Directive and the 2003 Accession Treaty. A significant aim of the Directive was that EU nationals should not use residence in another member state to become an unreasonable burden on its social assistance system. Residence beyond three months may be conditional. It is limited to workers, self-employed people, students, or people with sufficient resources and sickness insurance so as not to become such a burden. Equal treatment is itself subject to secondary law, and social assistance may be refused where appropriate.
Because Ms Mirga had not done 12 months’ work, she could not claim to be a worker. She was not a jobseeker, self-employed, a student or self-sufficient. She could therefore validly be denied a right of residence and excluded from social assistance. The possibility that she might leave the United Kingdom to seek assistance in Poland did not make the refusal a form of expulsion. The Directive distinguishes the right of residence from expulsion, and that right is not intended to enable a national of one member state simply to obtain social assistance in another.
Article 18 did not give Mr Samin a general right against discrimination. It applies only within the scope of the Treaties and without prejudice to special provisions contained in them. That led back to the same limits on residence and equal treatment.
In Dano and Alimanovic the Court of Justice had examined the relationship between lawful residence and access to social assistance. A Union citizen could claim equal treatment under the Directive only when residence complied with its conditions.
The House of Lords had already upheld the A8 worker-registration rules in Zalewska. The Supreme Court considered the EU law questions sufficiently clear to decide without a further reference.
Whether each case had to be assessed individually
Both appellants also argued that the authorities should have considered whether granting assistance in their individual cases would unreasonably burden the UK system.
Lord Neuberger rejected that argument. St Prix, which concerned whether pregnancy automatically ended worker status, did not assist beyond supporting a purposive reading of the Directive. Baumbast showed only that a very slight failure to meet the self-sufficiency conditions need not automatically defeat residence. Mr Baumbast had sufficient resources, had worked and lived here for several years with his family, had never received social assistance, and had medical insurance which may have fallen short only in relation to emergency treatment. Ms Mirga and Mr Samin were seeking social assistance, had no significant means of support or medical insurance, and had not worked here for sustained periods.
Some reasoning in Brey looked more helpful, including the statement that receipt of social assistance does not by itself prove an unreasonable burden and that an automatic bar was impermissible. Lord Neuberger regarded Brey as unusual because the applicant had been issued with a residence certificate, and held that it could not assist after Dano and Alimanovic. In Alimanovic the Grand Chamber said that no individual assessment was necessary in circumstances of that kind. The Directive’s graduated system already takes account of individual factors, especially the duration of economic activity, and was treated as complying with proportionality while giving legal certainty. An individual examination of every case would be unrealistic and would undermine the viability of the scheme.
Where someone is not a worker, self-employed or a student, and has no or very limited means and no medical insurance, invoking proportionality to create a right of residence and social assistance would, save perhaps in extreme circumstances, undermine the Directive. It would also impose a substantial burden on the host state. Even if an exceptional category exists, neither appellant could fall within it. Their applications were precisely the kind of claim which the Grand Chamber in Dano had identified the Directive as intending to prevent.
Verdict: Both appeals were dismissed. Ms Mirga’s income-support claim and Mr Samin’s housing claim failed. The Court left open whether exceptional circumstances might justify a different result.
Source: Mirga v Secretary of State for Work and Pensions [2016] UKSC 1
