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Sketch by Isobel Williams. www.isobelwilliams.blogspot.co.uk

The Supreme Court today handed down its judgment in the case of Mirga and another (Appellants) v SSWP and Westminster City Council (Respondents) [2016] UKSC . The appeals were brought by a Polish national, Roksana Mirga, and an Austrian national, Wadi Samin.

• The AIRE Centre was a third party intervener in the Supreme Court

Ms Mirga had first come to the UK with her parents and siblings in 1998, leaving for a short period to return to Poland before coming back to the UK in 2004 following Poland’s accession to the EU. She had worked and been a student in the UK, but left the workplace after the birth of her son. Mr Samin had successfully sought asylum in Austria, but after becoming estranged from his family, he left for the UK in 2005. Again he had had periods of employment but had not worked since 2006 due to poor physical and mental health, including post-traumatic stress disorder.

The Court of Appeal had been asked to decide what was meant by someone being ‘temporarily unable to work’ in order to determine if they had retained their status as a ‘worker’ under the Immigration (European Economic Area) Regulations 2006. The Court of Appeal said it was bound by two earlier cases of De Brito and Konodyba; and that the question of whether someone was temporarily unable to work would, in most cases, be answered by considering whether there was a realistic prospect of a return to work. This, the Court of Appeal said, was entirely consistent with EU law and the European directive 2004/38/EC (CRD 2004/38), and it did not require decision makers to consider whether there was “any chance” of a person returning to work.

Supreme Court
By the time the case came before the Supreme Court the arguments had changed somewhat. The joined appeals were now primarily concerned with the scope of the ‘right to reside’ test for social assistance benefits, such as income support and, in particular, whether EU law (Art 7(1) (b) of CRD 2004/38) required an individualised proportionality assessment as to the burden on the social assistance system in individual cases, following European Court of Justice (CJEU) cases such as Brey, St Prix and Dano.

The lead judgment was given by Lord Neuberger (with whom the other 4 Judges agreed).

The first question posed was whether the domestic UK Regulations infringed the appellants’ Treaty on the Functioning of the European Union (TFEU) rights? The judgment makes clear that the right to residence under the CRD 2004/38 cannot to be invoked simply to enable a national of one member state to obtain social assistance in another member state. Indeed, the Court says that the right of residence is not intended to be available ‘too easily’ to those who need social assistance from the host member state. More broadly, and following the CJEU Grand Chamber judgment in Alimanovic, a Union citizen can only claim equal treatment with nationals of a country, at least in relation to social assistance, if he or she can satisfy the conditions for lawful residence in that country. Whilst clearly sympathetic to the plight of the two appellants, the Court said this was not the case here, given that neither Ms Mirga or Mr Samin was a worker, self- employed, student or self-sufficient.

The second issue concerned proportionality, and whether previous tribunals had failed to look at all of the particular circumstances in these cases. In particular whether Ms Mirga and Mr Samin, in claiming social assistance, were in fact placing a burden on the UK welfare system? Again the Court found support for its opinion in EU case law. A substantial burden would be placed on the UK welfare system, where a national of another member state is not a worker, self-employed or a student, and has no, or very limited, means of support and no medical insurance (as was the factual position of Ms Mirga and Mr Samin). Indeed the Supreme Court said it would undermine the whole thrust and purpose of the CRD 2004/38 if proportionality could be invoked to entitle such a person to have the right of residence and social assistance in another member state, save perhaps in extreme circumstances.

The discernable shift in the CJEU case law around the thorny issue of EU citizens’ access to benefits in another Member State, evident in the Dano and Alimanovic cases, undoubtedly assisted the Supreme Court in its ability to declare that the aim of the 2004 Directive is to stop, ‘economically inactive Union citizens using the host member state’s welfare system to fund their means of subsistence’. It seems now clear that, as far as access to social benefits is concerned, EU citizens can only claim equal treatment with nationals of the host Member State (under art 24 (1) of the CRD 2004/38) if their residence in the territory of the host Member State complies with the conditions of CRD 2004/38.

As to the future role of EU law in this area, it would seem to still have a part to in deciding whether the refusal of social benefits to an EU citizen integrated into UK society is lawful. This is because firstly, EU law continues to recognise a certain degree of financial solidarity between nationals of a host Member State and nationals of other Member States, particularly where the difficulties are temporary.  Secondly, because there remains some space outside of the CRD 2004/38 for a right of residence, given the CJEU judgment in Saint Prix makes clear that the CRD 2004/38 does not represent an exhaustive codification of the existing law, and also the need for Member States not to have blanket rules which automatically refuse benefits to an EU citizen (Brey).