Kaczmarek v Secretary of State for Work & Pensions

An economically inactive Union citizen cannot invoke Article 12 of the EC Treaty merely because she has been lawfully present in the host state for a significant period or has achieved social integration. Residence for a “certain time” means completion of a specific qualifying period which confers a substantive right of residence.

Article 18 may supplement legislation where an unforeseen gap would otherwise defeat free movement. It cannot remove limitations deliberately imposed by a Directive, including requirements of economic activity or self-sufficiency. Whether those limitations are proportionate may be informed by the five-year threshold for unconditional permanent residence subsequently adopted in Council Directive 2004/38/EC.

The appellant, a Polish national, came to the United Kingdom as a student and later worked before taking maternity leave. She became economically inactive and claimed income support for the period from May 2005 until October 2006. Although lawfully present, she lacked a domestic right to reside and was therefore ineligible under the relevant social security legislation.

The Independent Appeal Tribunal allowed her appeal against refusal of income support. The Social Security Commissioner allowed the Secretary of State’s further appeal but granted permission to appeal to the Court of Appeal. The appellant argued that Articles 12 or 18 of the EC Treaty conferred entitlement because of her period of lawful residence and integration, or because denying her a right of residence was disproportionate.

1. The appeal was dismissed unanimously. The appellant had no entitlement under Article 12 or Article 18 of the EC Treaty.

2. Article 12 did not confer eligibility merely because an economically inactive Union citizen had been lawfully resident for an unspecified but significant period or had demonstrated social integration. The reference in Trojani to lawful residence for a “certain time” concerned a specific qualifying period which itself generated an express right of residence. Its juxtaposition with possession of a residence permit showed that both alternatives required a specific and substantive entitlement. An open-ended assessment of duration and integration would introduce undesirable discretion into an area more appropriately governed by normative rules.

3. Article 18 could supply a right of residence where an existing legislative framework contained a genuine lacuna and strict application of its limitations would be disproportionate. Baumbast illustrated that principle because the claimant substantially satisfied the conditions governing an economically active person and fell outside the rules only because of circumstances unforeseen by the Community legislature.

4. No comparable lacuna existed where a claimant was neither working nor self-sufficient. Council Directive 90/364/EEC deliberately confined residence rights to persons with adequate sickness insurance and sufficient resources to avoid burdening the host state’s social assistance system. Article 18 could supplement a Directive but could not remove limitations necessarily implicit in it. The court followed and agreed with Abdirahman on that issue.

5. Although Council Directive 2004/38/EC did not apply directly, its provision for unconditional permanent residence following five years’ lawful presence supplied a useful and authoritative benchmark for proportionality. Its continued requirement of self-sufficiency before that point reinforced the conclusion that denying income support after three years’ residence was not disproportionate.

1. Court of Appeal (Civil Division): Dismissed the appellant’s appeal unanimously and affirmed the Social Security Commissioner’s decision: [2008] EWCA Civ 1310.

2. Social Security Commissioner: Allowed the Secretary of State’s appeal, held that the appellant was ineligible for income support, and granted permission to appeal to the Court of Appeal: CIS 23582006.

3. Independent Appeal Tribunal: Allowed the appellant’s appeal against the rejection of her income-support claim.