Abdirahman v Secretary of State for Work and Pensions

For the social-security habitual-residence rules, lawful presence in the United Kingdom is not itself a right to reside. An EEA national who is not a qualified person under the Immigration (European Economic Area) Regulations 2000 has no such right for the relevant benefit regulations.

Article 18 of the EU Treaty gives a Union citizen a residence right only subject to proportionate conditions. The condition of sufficient resources in Directive 90/364/EEC lawfully prevents an economically inactive person from becoming an unreasonable burden on the host state's public finances. Where no right of residence arises under domestic or EU law, an asserted entitlement to benefit is outside the scope of Article 12 and no discrimination issue arises.

Ms Abdirahman, a Swedish national, and Mr Ullusow, a Norwegian national, lawfully entered and lived in the United Kingdom but were neither working nor economically self-sufficient. Their claims for income support, housing benefit, council tax benefit and pension credit were refused under the 2004 right-to-reside amendments.

The Appeal Tribunal allowed Ms Abdirahman's claim but dismissed Mr Ullusow's. A three-member panel of Social Security Commissioners reversed the former result and upheld the latter in CIS/3573/2005, CH/2484/2005 and CPC/2920/2005. The appeals concerned whether lawful presence gave either claimant a right to reside for the benefit regulations and, if not, whether that test conflicted with EU or treaty obligations.

1. The appeals were dismissed unanimously. Lloyd LJ's reasons were agreed by Moses LJ and the Chancellor. Neither claimant had a right to reside for the purposes of the relevant benefit regulations during the material period.
2. The Immigration (European Economic Area) Regulations 2000 draw a deliberate distinction between admission of an EEA national and an entitlement to reside. Regulation 14 conferred the latter entitlement only while the national remained a qualified person under regulation 5. Lawful entry, absence of an immigration breach, and remaining until removal did not create a right to reside. The same construction governed the materially identical income-support, housing-benefit, council-tax-benefit and pension-credit provisions.
3. Article 18 of the EU Treaty did not independently confer residence rights on these economically inactive claimants. Directive 90/364/EEC permitted proportionate conditions, including sufficient resources and sickness insurance, to protect the host state's public finances. The reasoning in Trojani showed that lawful presence without sufficient resources did not give a Treaty-based residence right.
4. Accordingly, the asserted benefit entitlement was outside the scope of Article 12 of the EU Treaty. The court therefore did not need to decide justification. Lloyd LJ added that, if required, the right-to-reside test would be a proportionate response to the legitimate objective of avoiding unreasonable burdens on public funds.
5. Unincorporated treaty obligations under the European Convention on Social and Medical Assistance 1953 could not displace the clear domestic construction. No preliminary reference under Article 234 was necessary because the EU-law position was clear.
6. Although the point was unnecessary to the result, the EEA Agreement extended Directive 90/364/EEC to Norwegian nationals. Mr Ullusow's reliance on that route was therefore not intrinsically defective, but it did not establish entitlement.

• Court of Appeal (Civil Division): dismissed the appeals and upheld the Commissioners' conclusion that the claimants lacked a right to reside for the relevant benefit regulations.
• Social Security Commissioners: in CIS/3573/2005, CH/2484/2005 and CPC/2920/2005, upheld the dismissal of Mr Ullusow's claim and reversed the Appeal Tribunal's allowance of Ms Abdirahman's claim.
• Appeal Tribunal: allowed Ms Abdirahman's appeal but dismissed Mr Ullusow's appeal.