Maryam Mohamed, R (on the application of) v London Borough of Harrow

An EEA national who has ceased employment does not retain worker status merely because the unemployment is involuntary or recorded at an employment office. Worker status depends on the principles of Community law and the circumstances as a whole. A work seeker must continue genuinely to seek employment and have real prospects of engagement. A person relying on Union citizenship must satisfy the applicable residence conditions, including sufficient resources. Accommodation is required under paragraph 3(b) of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 only where necessary to avoid breach of Community rights. Proportionality arises only where such rights are being exercised.

The claimant, a Dutch national with two young children, sought judicial review of the London Borough of Harrow’s refusal to provide interim accommodation under section 188(3) of the Housing Act 1996 pending review of an adverse homelessness decision. The authority considered that she was neither a worker nor a work seeker, lacked a Treaty-based right of residence, and was excluded from assistance by Schedule 3 to the Nationality, Immigration and Asylum Act 2002.

The claimant advanced five grounds, including retained worker status, lawful residence, discrimination, proportionality, and inadequate inquiry. The central issues were whether the authority had erred in its assessment of her Community-law status and whether accommodation was necessary to avoid breach of Community rights.

1. The claim for judicial review was dismissed. The authority had not erred in refusing interim accommodation.

2. The claimant was not a worker. Her employment had ended about 15 months earlier, and none of the recognised circumstances capable of preserving worker status was present. Regulation 5(2) of the Immigration (European Economic Area) Regulations 2000 did not create a general category of retained worker status. The word “solely” required consideration of all the circumstances. Regulations 18 and 19 concerned residence permits and did not define “worker”.

3. The claimant was not a work seeker. Applying R v Immigration Appeal Tribunal, ex parte Antonissen (1991) Case C-292/89 and R (Conde) v London Borough of Lambeth [2005] EWHC 62 (Admin), she had failed to obtain employment for substantially more than six months and the evidence did not establish genuine prospects of engagement or a sufficiently close connection with the United Kingdom employment market.

4. The claimant did not have a right of residence under Articles 17 and 18 of the EC Treaty. Article 1 of Directive 90/364 required sickness insurance and sufficient resources to avoid becoming an unreasonable burden on the host State’s social assistance system. The claimant did not satisfy that condition, even allowing for Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve (2001) Case C-184/99 and Trojani v CPAS (2004) Case C-456/02.

5. Because the claimant was not exercising rights within the scope of the EC Treaty, there was no discriminatory interference contrary to Article 12. Even if she had been a work seeker, accommodation under section 188(3) would not have been necessary to enable exercise of Title I rights under Regulation 1612/68. The authorities relied on by the claimant concerned Title II rights.

6. The proportionality principles stated in Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano (1995) Case C-55/94 applied only where Treaty freedoms were being exercised. In any event, Schedule 3 to the Nationality, Immigration and Asylum Act 2002 was a fair and proportionate implementation of the established limits on Union citizens’ welfare rights.

7. The authority had made adequate inquiries and reached conclusions supported by the evidence. All five grounds failed, and the claim was dismissed.