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Neutral Citation Number:
Reported Number:	R(IS)5/09
File Number:	CIS 2358 2006
Appellant:	(Kaczmarek v Secretary of State for Work and Pensions [2008] EWCA Civ 1310)
Respondent:
Judge/Commissioner:	Judge M. Rowland
Date Of Decision:	13/10/2008
Date Added:	19/11/2007
Main Category:	European Union law
Main Subcategory:	free movement
Secondary Category:	Residence and presence conditions
Secondary Subcategory:	right to reside
Notes:	European Union law – free movement – whether a former worker has a right of residence under Article 18(1) of the EC Treaty Residence and presence conditions – right to reside – scope of Article 18(1) of the EC Treaty The claimant was a Polish national, who came to the United Kingdom in April 2002. She was initially a student and then in employment, but became economically inactive after the birth of her child and claimed income support in October 2005. Her application was rejected but she appealed successfully to an appeal tribunal. The Secretary of State appealed to the Commissioner, who allowed the appeal. The claimant appealed to the Court. It was common ground that under domestic legislation she was not entitled as she did not enjoy the right to reside in the UK at the material time because she was not a “qualified person” as defined by regulation 5 of the Immigration (European Economic Area) Regulations 2000. The argument for the claimant was that entitlement arose under the EU Treaty: either Article 12 on the authority of Trojani v Centre public d’aide sociale de Bruxelles (Case C-456/02) [2004] ECR I-7573, where it was held that a citizen of the Union who is not economically active may rely on Article 12 EC where he has been lawfully resident in the host Member State for a certain time or possesses a residence permit, or Article 18 on the authority of Baumbast v Secretary of State for the Home Department (Case C-413/99) [2002] ECR 1-7091 on the basis that it was disproportionate to deny a right of residence, and thereby entitlement to income support, to a person who was lawfully resident and as substantially settled as the claimant. Held, dismissing the appeal, that: 1. the reference to lawful residence “for a certain time” in Trojani is a reference to specific qualifying periods which give rise to an express right of residence and does not open the door to eligibility based on residence of unspecified but significant duration and of a type which evidences a degree of social integration in the host Member State (paragraph 16); 2. Article 18(1) may be relied upon to fill a lacuna in a Directive where it would be disproportionate for the limitations and conditions contained in the Directive and the domestic Regulations to undermine the direct application of Article 18, but the facts of Baumbast were more susceptible to such lacuna-filling than the facts of the present case where, at the material time, the appellant was no longer a worker and nor was she self-sufficient (paragraphs 17 to 22); 3. an authoritative insight into the parameters of proportionality is given by Council Directive 2004/38/EC, in force from 30 April 2006, which provides for a right of permanent residence after five years’ lawful presence that is not conditional on the claimant being economically active or self-sufficient, and, if a five year qualification is proportionate in that context, it is all the more difficult to argue that it would be disproportionate to exclude this appellant from income support when, at the time of her claim, she had been in this country for three years and had become economically inactive (paragraph 23).
Decision(s) to Download:	CIS 2358 2006-00.doc R(IS) 5-09 bv.doc