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Notes:
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Supreme Court decision reported as [2016] AACR 26.
Rights as worker under Article 21.1 of the Treaty on the Functioning of the European Union – qualifications
The claimant, a Polish national, came to the United Kingdom (UK) in 2004 with her parents after Poland’s accession to the European Union. She left school in 2005 and started registered work within the meaning of the Accession (Immigration and Worker Registration) Regulations 2004 (the A8 Regulations). After about seven months the claimant left the family home and started unregistered work for some two months before claiming income support (IS) because she was pregnant. The Secretary of State refused her claim and his decision was upheld by the First-tier Tribunal. The Upper Tribunal set aside the First-tier Tribunal’s decision but substituted one to the same effect: it decided the claimant had no entitlement to IS as she had no right of residence in the UK under the A8 Regulations. That decision was upheld by Court of Appeal. The claimant appealed to the Supreme Court and her case was considered together with that of Samin v Westminster City Council. It was submitted on the claimant’s behalf that the denial of IS was an impermissible interference with her rights as a worker under Article 21.1 of the Treaty on the Functioning of the European Union (TFEU), as she would be forced to return to Poland, and that there had been no consideration given to the proportionality of refusing her IS and the burden on the system of making such an award.
Held, disallowing the appeal, that:
1. the right accorded by Article 21.1 TFEU, although fundamental and broad, was qualified by the words “subject to the limitations and conditions laid down in the Treaties and in the measures adopted to give them effect” and the “measures” included Directive 2004/38/EC and the Treaty on Accession 2003 under which, as the claimant had not done 12 months’ work in the UK, she could not claim to be a “worker”, and, because she was also not a “jobseeker”, “self-employed”, a “student”, or “self-sufficient”, she could be validly denied a right of residence in the UK, and therefore could be excluded from social assistance. In those circumstances, it followed that Article 21.1 TFEU could not assist her (paragraphs 43 to 45);
2. the 2004 Directive could not be read as treating refusal of social assistance as constituting a species of constructive expulsion even if it resulted in the person concerned leaving the host Member State, because the Directive distinguished between the right of residence and the act of expulsion and also made it clear that the right of residence was not to be invoked simply to enable a national of one Member State to obtain social assistance in another Member State. On the contrary: the right of residence was not intended to be available too easily to those who needed social assistance from the host Member State (paragraph 46);
3. where a national of another Member State was not a worker, self-employed or a student, and had no, or very limited, means of support and no medical insurance, it would severely undermine the thrust and purpose of the 2004 Directive if proportionality could be invoked to entitle that person to have the right of residence and social assistance in another Member State, save perhaps in extreme circumstances. It would also place a substantial burden on a host Member State if it had to carry out a proportionality exercise in every case where the right of residence (or indeed the right against discrimination) was invoked. Even if there was a category of exceptional cases where proportionality could come into play, the claimant could not possibly satisfy it. (paragraphs 69 and 70).
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