EU ineligibility for housing

Mirga and Samin v Secretary of State for Work and Pensions & Anor [2016] UKSC 1

In Mr Samin’s appeal, the Supreme Court considered the meaning of “a person from abroad who is not eligible for housing assistance” section 185(1) of Housing Act 1996 (as amended). Mr Samin is an EU citizen, who came to the UK in December 2005. He worked for some time over the next 10 months, but since 2006 had been unable to work due to his health. “Mr Samin is socially isolated and suffers from poor mental health, principally from clinical depression and post-traumatic stress disorder. Having attempted to kill himself in the past, he remains a moderately high risk of suicide in the medium term. He also suffers from diabetes, hypertension and kidney stones, and he needs physiotherapy”.

Mr S had applied to Westminster as homeless in June 2010. Westminster had decided he was ineligible as he was not a worker or work seeker and did not otherwise have the right of residence under Immigration (European Economic Area) Regulations 2006 (SI 2006/1003). That decision was upheld on appeal and on second appeal to the Court of Appeal (our note).

Before the Supreme Court, Mr S argued that:

a) the refusal of housing assistance constituted unlawful discrimination in breach of article 18 of the Treaty on the Functioning of the European Union, even though Mr S may not have had a right of residence in the UK;
b) there should have been an investigation as to whether it was proportionate to refuse Mr S housing assistance, in particular on the ground that it represented an unreasonable burden of the UK social assistance system.

On a), the Supreme Court found

The article 18 right which he relies on does not constitute a broad or general right not to be discriminated against. First, its ambit is limited to “the scope of the Treaties”, which means that it only comes into play where there is discrimination in connection with a right in the TFEU or another EU Treaty. Secondly, the article 18 right is “without prejudice to any special provisions contained [in the Treaties]”.

The clear guidance of the Grand Chamber of the European Court of Justice was that

that a Union citizen can claim equal treatment with nationals of a country, at least in relation to social assistance, only if he or she can satisfy the conditions for lawful residence in that country. Thus, it was confirmed that article 24.2 of the 2004 Directive was, in effect, a valid exception to the principle of non-discrimination.

So the article 18 right against discrimination did not extend to situations where the treaties excluded lawful residence.

On b), it was accepted that the effect of

the decision of Baumbast (Baumbast v Secretary of State for the Home Department (Case C-413/99) [2003] ICR 1347) is that the fact that an applicant may fall short of the strict requirements of having “self-sufficiency” status under what are now the 2004 Directive and the EEA Regulations cannot always justify the host member state automatically rejecting his or her right to reside on the ground that the requirements for that status are not wholly complied with.

However, Baumbast concerned someone who claimed to be self-sufficient and the only issue was a lack of clarity over the full extent of his medical insurance.

The thrust of the court’s reasoning in that case was that, where an applicant’s failure to meet the requirements of being “a self-sufficient person” was very slight, his links with the host member state were particularly strong, and his claim was particularly meritorious, it would be disproportionate to reject his claim to enjoy the right of residence in that host state. Even though the applicant had a very strong case in the sense that he fell short of the self-sufficiency requirements in one very small respect, the court decided that he could rely on disproportionality only after considering the position in some detail.

That was clearly not the case where Mr S had no claim to self-sufficiency.

Pensionsversicherungsanstalt v Brey (Case C-140/12) [2014] 1 WLR 1080 might seem to help Mr S rather more, however, there were subsequent decisions in Dano and another v Jobcenter Leipzig (Case C-333/13) [2015] 1 WLR 2519 and Alimanovic (Case C-67/14) EU:C:2015:597. In Alimanovic, the ECJ had found

“a member state [was required] to take account of the individual situation of the person concerned before it … finds that the residence of that person is placing an unreasonable burden on its social assistance system”. However, the Grand Chamber went on to say that “no such individual assessment is necessary in circumstances such as those in issue in this case”.

The Supreme Court agreed that it seems unrealistic to require “an individual examination of each particular case” and went on to hold:

69. 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 is sadly the position of Ms Mirga and Mr Samin), it would severely undermine the whole 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.

70. Even if there is a category of exceptional cases where proportionality could come into play, I do not consider that either Ms Mirga or Mr Samin could possibly satisfy it. They were in a wholly different position from Mr Baumbast: he was not seeking social assistance, he fell short of the self-sufficiency criteria to a very small extent indeed, and he had worked in this country for many years. By contrast Ms Mirga and Mr Samin were seeking social assistance, neither of them had any significant means of support or any medical insurance, and neither had worked for sustained periods in this country. The whole point of their appeals was to enable them to receive social assistance, and at least the main point of the self-sufficiency test is to assist applicants who would be very unlikely to need social assistance.

Mr Samin’s appeal dismissed (as was that of Ms Mirga, for benefits, in similar circumstances).

Posted in Homeless, Housing law - All and tagged , .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

6 Comments

  1. Pingback: Housing Law Week

  2. I’ve had a very similar case come across my desk in recent weeks. Habitual Residency Tests are quite tough to pass in some circumstances, particularly if someone leaves their work or studies due to ill health shortly after arriving in the UK. If you’re incapable of work, looking for work or continuing your studies you’re going to have serious problems accessing housing under the HRT.

    Essentially you must fit into the following criteria:

    •are working or self-employed
    •are jobseeking
    •are a former worker
    •are self-sufficient
    •are a student
    •have been living in the UK for at least five years and have acquired a permanent right to reside
    •are the primary carer of a child who themselves has the right to reside
    •are the family member of someone with the right to reside.

    There are some concessions to ill health with former workers, (e.g. if you have been injured in an industrial accident you do not have to satisfy any of the other criteria of the Habitual Residence Test, or if your spouse is a UK national the same applies). Students have to have comprehensive medical insurance or an EHIC Card and sign a declaration to state you can support yourself financially in order to qualify as habitually resident. A student who drops out of their course due to ill health and doesn’t have any means of supporting themselves financially will be totally unable to access support unless they have been here for at least five years, have a child who has the right to reside or a family member with the right to reside.

  3. Dear Andrew, you appear to feel that what you have described is a terrible indictment of something or other. The person you describe is presumably a citizen of the EU and there is another EU country where they do have all these rights. They simply do not have them in the UK. The EU includes countries like France, Germany, the Netherlands, Denmark, Sweden, Italy, Spain, Austria etc. What is wrong with them? Why does a right to access housing, benefits and social support in one of these countries but not in the UK constitute justified lamentation? Many of them are much pleasanter social democracies than the UK.

    • Dear Miranda, I think you may have taken my comment in the wrong context. I’m not saying that this is a terrible indictment of anything. I’m merely pointing out that I’ve had a similar case come across my desk where the person concerned was unable to access any housing due to the particulars of their situation. I’m not saying that the decision was wrong, I’m saying that anyone who has a similar case should be aware of the above case law and the HRT guidance.

  4. Hi Andrew, sorry if I was feeling shrewish. Assuming that the person you are discussing is an EU citizen, they are not exercising Treaty rights ie working, looking for work, being self employed or being self-sufficient. They have no rights under the Treaty to move to another country and be unable to work or support themselves. This is not case law but EU law. The other rights you refer to are really for different sorts of people — non-EU family members of EU nationals exercising Treaty rights (see above) in the UK.

    Your client’s difficulty is probably the right to reside rather than the HRT. You can see that Mr Samir’s own lawyers conceded that he didn’t have a right to reside.

    As the Grand chamber of the European Court of Justice says: “a Union citizen can claim equal treatment with nationals of a country, at least in relation to social assistance, only if he or she can satisfy the conditions for lawful residence in that country.” Lawful residence is the jobseeker, worker, self-employed or self-sufficent that you quoted. Discrimination claims do not apply to those without lawful residence. Mr Samir had no claim to self-sufficiency and therefore no claim to lawful residence.

    • You’re right of course. The HRT is for specific benefits and I’ve been talking about it for weeks so apologies for mentioning it in place of the right to reside. It was indeed the right to reside that was the issue with my client who had also failed the HRT because of it.

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