MM v Secretary of State for Work and Pensions (ESA)

Where an economically inactive Union citizen does not satisfy the conditions for residence under Directive 2004/38/EC, proportionality can displace those conditions only, if at all, in an exceptional case involving extreme circumstances. The Directive supplies the parameters of proportionality. Proper application of its rule-based scheme is therefore ordinarily proportionate unless an apparent legislative lacuna calls for a different conclusion.

Severe disability, family dependence, an asserted lack of links with the home Member State, and past erroneous payment of social assistance did not meet that demanding threshold on the evidence. Article 26 of the Charter did not independently entitle the claimant to employment and support allowance. Rights connected with free movement remained subject to the Directive's conditions and limits.

The appellant, a Swedish national with substantial physical and learning disabilities, claimed employment and support allowance. The Secretary of State decided that she lacked a right to reside under regulation 70 of the Employment and Support Allowance Regulations 2008/794. The First-tier Tribunal dismissed her appeal on 11 February 2014, finding that she had no personal or derived right of residence and that refusing benefit was proportionate.

On appeal, the appellant initially relied on an education-based derived right, but abandoned that ground. She maintained that Brey required an individual assessment of the burden on the United Kingdom's social-assistance system, and that the right-to-reside condition was disproportionate in her circumstances. The central issue was whether proportionality could require the limitations in Directive 2004/38/EC to be disapplied.

1. Appeal dismissed. The First-tier Tribunal made no error of law. The appellant did not qualify for a right of residence under Directive 2004/38/EC, and the right-to-reside condition for employment and support allowance remained effective.
2. Mirga v SSWP, [2016] UKSC 1, establishes that a proportionality argument has any realistic prospect only in an exceptional case involving extreme circumstances. Read with the CJEU authorities, it confirms a preference for the Directive's rule-based scheme over an individual assessment in every benefit case. Brey takes the appellant no further.
3. The Upper Tribunal held that proportionality must ordinarily be presumed where the Directive has been properly applied. A claimant must identify an apparent lacuna or oversight in the EU legislation before proportionality can displace its conditions. Mirga did not overrule the Court of Appeal's guidance in Kaczmarek v SSWP, [2008] EWCA Civ 1310, and did not disclose such a lacuna.
4. The claimant's severe disability and dependence, her family circumstances, alleged integration, and asserted lack of Swedish links did not outweigh the recognised Union objective of protecting Member States' public finances. The evidence did not establish that return to Sweden would deny appropriate support. Questions calling for a wider discretionary assessment of immigration circumstances were for the immigration authorities.
5. Article 26 of the Charter did not confer a free-standing entitlement to ESA. Any relevant free-movement right was exercised subject to the conditions and limits of the Treaties, including the Directive. The transitional-protection argument under regulation 6 of the 2004 Regulations also failed because the appellant's mother had not received the specified benefit at the relevant time.

• Upper Tribunal (Administrative Appeals Chamber): Appeal dismissed. The First-tier Tribunal's decision involved no error of law.
• First-tier Tribunal: Sitting at Enfield on 11 February 2014 (reference SC921/12/01122), it dismissed the appeal against refusal of employment and support allowance for want of a right to reside.