In Samin v Westminster CC [2012] EWCA Civ 1468 [not on bailii yet – lawtel has a transcript], the Court of Appeal had to decide what was meant by someone being “temporarily unable to work” so as to determine if Mr Samin retained his status as a “worker” under the Immigration (European Economic Area) Regulations 2006.

Mr Samin was an Austrian national. He had, however, formerly lived in Iraq and became an Austrian national in 1993 after he had fled Iraq and claimed asylum.

In 2005, after his marriage had ended, Mr Samin left Austria and travelled to the UK. He obtained a job as a cleaner and worked for approximately 10 months until he was asked to leave. He had not worked in the UK since that date and received welfare benefits (i.e. housing benefit, income support and incapacity benefit). The main reason for him not working since 2006 was that he was in poor physical and mental health. He suffered from long standing clinical depression – which had arisen from his traumatic experiences with the Iraqi army -, diabetes, high blood pressure, kidney stones and he required physiotherapy for one of his legs.

Mr Samin’s GP was of the opinion, however, that with a stable home environment his mental health may improve and, with support from a “suitable agency”, he would be able to return to some fruitful employment, although this was unlikely in the short-term.

Westminster’s reviewing officer, however, took a different view and decided that Mr Samin was not temporarily unable to work; his incapacity was more permanent and he had therefore not retained his worker status. Accordingly, he did not have a right to reside in the UK and was not eligible for assistance under Part 7.

Mr Samin’s appeal to the county court was rejected and he appealed to the Court of Appeal. He contended that the reviewing officer’s decision was unlawful because European jurisprudence required her to consider, when considering if he was temporarily unable to work, whether there was any chance of Mr Samin returning to work.

Unfortunately for Mr Samin, by the time the appeal was heard the Court of Appeal had already considered the question in two other appeals, namely De Brito v SSHD [2012] EWCA Civ 709 and Konodyba v Royal Borough of Kensington and Chelsea [2012] EWCA Civ 982 (our recent report of the case here). In both appeals it had decided that the question to be posed was whether the individual had a realistic prospect of returning to work.

Accordingly, Mr Samin also contended, in the alternative, that the reviewing officer had failed to consider this question and, had she done so, the only rational answer would be that he did have a realistic prospect of returning to work.

The Court of Appeal dismissed the appeal. The Court of Appeal was bound by the two earlier cases of De Brito and Konodyba; the question was, as posed by the regulations, whether Mr Samin was temporarily unable to work. In most cases this question would be answered by considering whether there was a realistic prospect of of a return to work. This was entirely consistent with the European authorities and the European directive 2004/38/EC and it did not require decision makers to consider whether there was “any chance” of a person returning to work.

While the reviewing officer had not considered whether there was a realistic prospect of Mr Samin returning to work, this was because her decision pre-dated the cases of De Brito and Konodyba and, in any event, she had asked the right question, namely: was Mr Samin temporarily unable to work. This was a question of fact and, on the facts before her, she was more than entitled to reach the decision that she had. The medical showed that Mr Samin’s depression had long pre-dated his homelessness and there was little prospect of him obtaining employment even if he did obtain more settled accommodation.

Comment

I’ll be interested to see how county courts interpret this decision.  I don’t think anyone could argue that whether someone is temporarily unable to work is a question of fact: they either are or they aren’t. Yet, I’m not sure that this means that it is for the reviewing officer to decide and his decision can only be challenged as being Wednesbury unreasonable. It is surely – like the question whether someone is a child or not under Children Act 1989 – a “jurisdictional fact” and is therefore not capable of being left to the reviewing officer. The court, on a s.204 appeal, must decided the question itself.

This is because the question of whether someone is a “worker”, for the purposes of an EU directive, must be the same across the EU and cannot be left to national courts, let alone reviewing officers to decide. I have a feeling, however, that the (county) courts will take a different view and an element of discretion will find its way into eligiblity decisions.