Borovikovs v London Borough of Lewisham & Anor

Permission for a second appeal requires a real prospect of success or another compelling reason, together with the additional second-appeal requirement where applicable. A person treated under Latvian law as a non-citizen is not thereby an EU citizen. Under the Housing Benefit Regulations 2006, ECSMA nationality alone does not confer entitlement to housing benefit. For a derivative right of residence under Directive 2004/38/EC, the principal claimant must first have sufficient resources for themselves and their family member. Indirect discrimination requires an evidential foundation, and Article 14 applies only within the ambit of another Convention right. The renewed application for permission was refused.

Mr Borovikovs sought permission for a second appeal from the Upper Tribunal (Administrative Appeals Chamber). His claims for housing benefit and council tax benefit had been rejected under regulation 10 of the Housing Benefit Regulations 2006 because he lacked a right to reside in the United Kingdom.

The Upper Tribunal rejected arguments based on EU citizenship, ECSMA, his wife's alleged right of residence, and indirect gender discrimination. The Upper Tribunal refused permission on 15 September 2014. Hallett LJ refused permission on the papers on 17 June 2015. The renewed application concerned whether any ground had a real prospect of success or raised another compelling reason for a further appeal.

Application refused. Morgan J held that none of the four proposed grounds had a real prospect of success. There was no compelling reason for the Court of Appeal to hear the matter, and it was unnecessary to determine the separate second-appeal criteria.

1. An appeal from the Upper Tribunal to the Court of Appeal lies on a point of law only under section 13 of the Tribunals, Courts and Enforcement Act 2007. Permission requires a real prospect of success or another compelling reason. A second appeal also requires an important point of principle or practice, or another compelling reason.
2. The appellant's Latvian passport identified him as a Latvian non-citizen or alien, in contrast to his wife's status as a Latvian citizen. The First-tier Tribunal had been entitled to find that the passport was not mistranslated. The material advanced did not establish that he was a Latvian national, a national of an EU Member State, or an EU citizen.
3. The ECSMA argument could not succeed. The court treated Yesiloz v London Borough of Camden & Anor [2009] EWCA Civ 415 as binding authority that nationality of a state governed by ECSMA does not itself confer a right to housing benefit where regulation 10 of the Housing Benefit Regulations 2006 governs the claim.
4. For the wife's alleged right of residence under Article 7 of Directive 2004/38/EC, the assessment had to begin with her own entitlement. Her resources had to be sufficient for herself and her family member. Since they were not, she did not qualify under Article 7 and the appellant could not derive a family-member right from her. The definition of a self-sufficient person in regulation 4 of the Immigration (European Economic Area) Regulations 2006 did not alter that conclusion.
5. The indirect-discrimination ground lacked the necessary factual foundation. Article 14 of the Convention on Human Rights and Fundamental Freedoms applies only where the alleged discrimination concerns a matter within the ambit of another Convention article. The present allegation concerned gender rather than the nationality discrimination considered in Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11. No submission had been made under section 3 of the Human Rights Act, and a declaration of incompatibility would not itself produce an award of housing benefit.

Order: application refused.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused on 13 April 2016.
• Court of Appeal (Civil Division): Hallett LJ refused permission on the papers on 17 June 2015.
• Upper Tribunal (Administrative Appeals Chamber): decision released on 21 May 2014; permission to appeal refused on 15 September 2014.
• First-tier Tribunal: rejected the benefit claims and made the relevant factual findings; the date of decision was not stated in the judgment.