Mirga v Secretary of State for Work and Pensions

An economically inactive EU citizen who does not satisfy the conditions for lawful residence under the applicable EU instruments cannot invoke EU citizenship or non-discrimination rights to obtain social assistance in a host member state. The structured conditions in Directive 2004/38/EC ordinarily satisfy proportionality without an individual assessment of every claimant.

Proportionality cannot generally confer residence and social-assistance rights on a person who is neither a worker, self-employed person nor student and who lacks sufficient resources and comprehensive medical insurance. An exceptional category may exist, but only extreme circumstances could engage it. Refusing social assistance does not amount to constructive expulsion merely because the claimant may consequently leave the host state.

These conjoined appeals concerned an application by a Polish national for income support and an application by an Austrian national for homelessness assistance. Both applicants had worked in the United Kingdom for limited periods but were economically inactive when they claimed assistance. Neither had significant resources or comprehensive medical insurance.

The Upper Tribunal held that Ms Mirga lacked a right of residence under the applicable worker-registration and EEA rules. The Court of Appeal upheld that determination in [2012] EWCA Civ 1952. Westminster City Council found Mr Samin ineligible for housing assistance because he lacked a right of residence. The county court and Court of Appeal upheld that decision, the latter in [2012] EWCA Civ 1468; [2012] WLR(D) 336.

The central issues were whether refusing the benefits infringed the applicants’ rights of residence or non-discrimination under EU law, and whether an individual proportionality assessment was required.

1. Both appeals dismissed unanimously. Lord Neuberger gave the judgment, with which Lady Hale, Lord Kerr, Lord Clarke and Lord Reed agreed.

2. The right to move and reside freely under article 21.1 of the Treaty on the Functioning of the European Union is subject to limitations and conditions imposed by the Treaties and implementing measures. Those measures included the 2003 Accession Treaty and Directive 2004/38/EC. The Directive deliberately limits residence and equal-treatment rights so that economically inactive Union citizens do not use a host state’s welfare system to fund their subsistence. Article 18 does not create a free-standing general prohibition against nationality discrimination outside the scope of Treaty rights: paras 43–47.

3. Ms Mirga had not completed the required 12 months of registered employment and was neither a jobseeker, self-employed person, student nor self-sufficient person. She therefore lacked a qualifying right of residence and could lawfully be excluded from income support. Mr Samin was not a worker or otherwise qualified under the EEA rules and could lawfully be excluded from housing assistance. The Grand Chamber decisions in Dano and Alimanovic established that equal treatment in respect of social assistance depends upon compliance with the Directive’s conditions for lawful residence: paras 48–57.

4. Refusal of social assistance is distinct from expulsion. It does not become constructive expulsion merely because the claimant may consequently leave the United Kingdom. The Directive regulates rights of residence and formal expulsion separately: para 46.

5. The individual proportionality assessment discussed in Brey did not apply. Alimanovic established that no such assessment is necessary where the Directive’s graduated rules already take account of relevant individual circumstances and provide legal certainty while complying with proportionality. Requiring a separate assessment in every case would undermine the Directive and impose a substantial administrative burden: paras 63–69.

6. Proportionality could not ordinarily confer residence and social-assistance rights upon a person who was economically inactive, lacked significant resources and medical insurance, and did not satisfy the Directive. Even assuming an exceptional category existed, neither applicant’s circumstances could qualify. Their position differed fundamentally from Baumbast, where the claimant was practically self-sufficient and fell only slightly short of the insurance requirement: paras 69–71.

1. United Kingdom Supreme Court: Both appeals were dismissed. The Court affirmed the conclusions that the applicants lacked qualifying residence rights and were ineligible for the claimed social assistance.
2. Court of Appeal—Mirga: The court upheld the Upper Tribunal’s decision that Ms Mirga was ineligible for income support because she lacked a qualifying right of residence: [2012] EWCA Civ 1952.
3. Upper Tribunal—Mirga: Judge Rowland affirmed the refusal of income support, although for reasons differing from those of the First-tier Tribunal.
4. First-tier Tribunal—Mirga: The tribunal upheld the Secretary of State’s refusal of income support.
5. Court of Appeal—Samin: The court upheld the county court’s dismissal of Mr Samin’s challenge: [2012] EWCA Civ 1468; [2012] WLR(D) 336.
6. Central London County Court—Samin: The court upheld Westminster City Council’s determination that Mr Samin was ineligible for housing assistance.