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Notes:
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Residence condition – habitual residence – meaning of “right to reside” – whether lawful presence in the UK sufficient
European Union law – whether right to reside requirement breaches international treaty obligations – whether discriminatory contrary to Article 12 of the EC Treaty
In each case the claimant had entered the United Kingdom (UK), being entitled to do so as an EEA national, and was living here without having to obtain permission to remain in the UK. Neither claimant was, at the relevant time, a worker or otherwise economically self-sufficient. Each claimed income-related social security benefits, but the claim was rejected on the basis that the claimant did not have the right to reside in the UK, a test introduced as from 1 May 2004. Each claimant appealed against the rejection to the appeal tribunal; Ms Abdirahman’s appeal was successful and Mr Ullusow’s failed. His further appeal to the Social Security Commissioner, and the appeal of the Secretary of State for Work and Pensions in Ms Abdirahman’s case, were heard by a Tribunal of Commissioners (DJ May QC, JM Henty and His Honour Judge Martin QC), who upheld the appeal tribunal’s decision as regards Mr Ullusow and reversed that in Ms Abdirahman’s case, after considering arguments based on UK immigration law and EC Treaty obligations, and accepting a concession from the Secretary of State that there was indirect discrimination against non-UK nationals contrary to Article 12 of the EC Treaty (discrimination on grounds of nationality), but holding that it was justified. Both claimants appealed to the Court of Appeal. Before the Court of Appeal the Secretary of State argued that the cases were outwith the scope of the EC Treaty and that therefore there could be no question of indirect discrimination contrary to Article 12.
Held, dismissing the appeal, that:
1. UK immigration law made a clear distinction between the UK’s obligation to admit an EEA national and an entitlement to reside for which it is necessary to be a “qualified person”, and the claimants, not being qualified persons, did not have a right to reside under UK law at the relevant times (paragraphs 19, 25 and 65);
2. while Article 18 of the EC Treaty imposed an obligation on the UK to confer a right to reside on nationals of Member States, that obligation is subject to the limitations imposed under Directive 90/364 to the effect that beneficiaries of the right of residence must not become an unreasonable burden on the public finances of the host Member State, and so Article 18 did not create a right of residence in another Member State for an EEA national who was not economically active (Trojani [2004] ECR I-7573 and other ECJ judgments followed) (paragraphs 33, 34 and 67);
3. it was difficult to suppose that the terms of the European Convention on Social and Medical Assistance 1953 (ECSMA) or the European Social Charter could properly be read as imposing on its Contracting Parties obligations more onerous than those imposed directly on EU Member States by Article 18 as regards rights of residence and, in any event, the relevance of an international treaty to the interpretation of domestic legislation is limited, particularly where, as in this case, the legislation to be construed was not enacted in order to give effect to the treaty obligations in question (paragraphs 35 and 36);
4. while right of residence could be within the scope of application of the EC Treaty for the purposes of Article 12 (discrimination on grounds of nationality), that scope did not extend to cases where no right of residence existed under either the Treaty or the relevant domestic law and so the question of justification did not need to be considered in these cases (paragraphs 44 to 46, 69);
5. (obiter) if, as had been conceded before the Commissioners, there was indirect discrimination against non-UK nationals which required to be justified, the Commissioners had correctly held that the requirement was justified as a legitimate response to a manifest problem (paragraphs 48 to 50).
Upheld in the Court of Appeal under the name , 05.07.07.
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