Mirga v Secretary of state for Work and Pensions

A Workers Registration Scheme for A8 nationals may be proportionate when assessed as a whole. Requirements to register employment, re-register after changing employer, and the resulting denial of Income Support may therefore remain effective despite individual hardship.

Lawful presence under the Immigration (European Economic Area) Regulations 2006 is distinct from a right to reside for the purposes of the Income Support (General) Regulations 1987. Fundamental rights under European Union law and article 8 of the European Convention on Human Rights do not, in this context, require a claimant to be treated as having that statutory right. Any removal decision may still be challenged on fundamental-rights grounds.

The appellant, a Polish national and A8 national, claimed Income Support while pregnant after leaving her family home. Her claim was refused because she was treated as a person from abroad without the right to reside required by the Income Support (General) Regulations 1987. She had not completed the relevant registered employment period and was not working for an authorised employer.

The Wakefield appeal tribunal rejected the claim. The Upper Tribunal set aside that decision but substituted a decision to the same effect. The appellant appealed to the Court of Appeal, arguing that applying the Workers Registration Scheme was disproportionate and might interfere with her rights to private and family life if she were required to return to Poland. The central issue was whether those matters required recognition of a right to reside for Income Support.

Appeal dismissed unanimously. Laws LJ delivered the judgment, with Tomlinson LJ and Sir David Keene agreeing.

1. The statutory scheme treated a person from abroad as having an applicable amount of nil for Income Support. Under regulation 21AA of the Income Support (General) Regulations 1987, habitual residence required a qualifying right to reside. The appellant was lawfully present under the Immigration (European Economic Area) Regulations 2006, but she was not a qualified person under regulation 6 because she was not a worker. Lawful presence and a right to reside were distinct concepts.
2. The House of Lords decision in Zalewska v Department of Social Development [2008] 1 WLR 2602 upheld the proportionality of the Workers Registration Scheme as a whole, including registration and re-registration requirements and the denial of Income Support following non-compliance. The scheme could not be reopened by examining the individual hardship of every A8 national.
3. The court addressed the fresh fundamental-rights argument despite its limited presentation below. An appellate court dealing with points of law may entertain a new legal point, but is reluctant to do so where further fact-finding is required. The argument could be considered in principle without remitting the case.
4. Rights arising from Union citizenship remained subject to treaty limitations and implementing measures. The accession treaty modified the Citizenship Directive, and the Workers Registration Scheme was a consequence of that arrangement. The protection of fundamental rights did not require the appellant to be accorded a right to reside under regulation 21AA.
5. The appellant could raise fundamental-rights arguments in any removal appeal. However, the possible disruption of private and family life required evidence, and social security was not itself a characteristic of the article 8 right. The justification recognised in Patmalniece [2011] Vol 1 WLR 783 was not defeated merely because the individual might not be a benefit tourist.

The Upper Tribunal’s decision was therefore upheld and the appeal dismissed.

• Court of Appeal (Civil Division): dismissed the appeal.
• Upper Tribunal (Administrative Appeals Chamber): set aside the Wakefield appeal tribunal’s decision but substituted a decision that the appellant was not entitled to Income Support from 4 August 2006.
• Wakefield appeal tribunal: rejected the appellant’s claim on 23 July 2007.