Samin v City of Westminster

Eligibility for homelessness assistance based on EU worker status depends on whether an interruption in work is temporary. Under Article 7(3)(a) of the Directive 2004/38/EC and Regulation 6(2)(a) of the Immigration (European Economic Area) Regulations 2006, temporary incapacity is contrasted with permanent incapacity and is assessed as a question of fact. A realistic prospect of returning to work is generally helpful, but it does not replace the statutory test. The court rejected importing an any-chance test, the CPR meaning of real prospect, or an additional integration factor.

Mr Samin, an Austrian citizen, had lived in the United Kingdom since 2005 and had not worked since 2006. He was homeless after losing his private accommodation and applied to the City of Westminster under Part VII of the Housing Act 1996. The council decided that he was not eligible for housing assistance because he was not a qualified person. A reviewer upheld that decision, and the County Court dismissed his appeal on a point of law under section 204. The Court of Appeal considered whether his illness made him temporarily unable to work under Regulation 6(2)(a), whether the reviewer had applied the correct test, and whether a reference to the CJEU was required.

Lord Justice Hughes, with whom Lord Justice Etherton and Lord Justice Tomlinson agreed, dismissed the appeal.

1. The free-movement scheme in Directive 2004/38/EC balances free movement with the need to prevent an unreasonable burden on the host State’s social assistance system. Beyond three months, residence and related benefits generally depend on retaining qualifying status. Regulation 6(2)(a) faithfully reflects Article 7(3)(a).
2. The statutory question is whether the interruption in work is temporary or permanent. That is a question of fact, assessed objectively. It will generally be helpful to ask whether there is a realistic prospect of returning to work. An indefinite absence is not automatically permanent, since an uncertain wait for surgery or new medication may still be temporary.
3. The court rejected the proposed any-chance formulation derived from the Turkish-worker cases. Those authorities concerned the different scheme under Decision 1/80 and did not construe Article 7(3)(a). The court also distinguished the CPR meaning of real prospect in Swain v Hillman. The statutory words must be applied directly, without adding a gloss.
4. The degree of integration achieved by the worker is not an additional factor under Article 7(3)(a). The Directive’s sliding scale already gives effect to that principle, and adding integration as a separate consideration would complicate the decision-making process and risk inconsistency.
5. The reviewer had asked the correct statutory question, even though she did not use the later terminology of permanence or realistic prospects. On the evidence, Mr Samin had a chronic disabling illness, had scarcely worked in the United Kingdom, had received unsuccessful treatment, and had no concrete plan capable of returning him to employment. It was therefore legally open to conclude that his inability to work was not temporary. No reference to the CJEU was necessary because there was no sensible doubt about the applicable approach.

1. Court of Appeal (Civil Division) [2012] EWCA Civ 1468: dismissed the second appeal.
2. Central London County Court: His Honour Judge Mitchell held that the reviewer had made no error of law and dismissed the appeal under section 204.
3. Review stage: the council’s decision that Mr Samin was not eligible under Part VII of the Housing Act 1996 was upheld by the reviewer under sections 202–203.