Kaczmarek v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | The Master of the Rolls |
| Judgment Date | 27 November 2008 |
| Neutral Citation | [2008] EWCA Civ 1310 |
| Docket Number | Case No: C3/2008/0828 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 November 2008 |
[2008] EWCA Civ 1310
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER
(MR MARK ROWLAND)
CIS 23582006
The Master of the Rolls
Lord Justice Maurice Kay and Lord Justice Stanley Burnton
Case No: C3/2008/0828
Miss Nathalie Lieven QC and Mr Ranjiv Khubber (instructed by Fisher Meredith LLP) for the Appellant
Mr Jason Coppel and Ms Deok-Joo Rhee (instructed by Office of the Solicitor) for the Respondent
Hearing date : 13 October 2008
Lord Justice Maurice Kay :
Since the inception of the European Economic Community, one of its cornerstones has been the facilitation of free movement so as to enable a citizen of one Member State to seek and obtain employment in another. This case is concerned with a woman from Poland (at the material time an EEA country) who entered and remains in this country lawfully. However, after a period of time as a student and in employment, she became economically inactive and incapable of supporting herself. She claimed income support. By a decision of a Social Security Commissioner (Mr Mark Rowland) she was held to be ineligible. However, he granted her permission to appeal to this Court. It is common ground that she has no entitlement under the domestic legislation. Her case is that entitlement arises under Article 12 and/or 18 of the EU Treaty. A similar contention was advanced but without success in Abdirahman v Secretary of State for Work and Pensions [2007] EWCA Civ 657; [2008] 1 WLR 254. Initially, it was to be submitted on behalf of the appellant that Abdirahman was decided per incuriam but that approach has been wisely abandoned by Miss Lieven QC. Instead, she seeks to distinguish it.
The issues raised are important because, if a citizen of one Member State who is lawfully present in another Member State can, without difficulty and whilst economically inactive, access the social security benefits of the host State, the implications for the more prosperous Member States with more generous social security provision are obvious. In Trojani v Centre Public d'aide sociale de Bruxelles ( Case C-456/02) [2004] ECR I-7573, Advocate General Geelhoed said (at paragraph 18):
“So long as social security systems have not been harmonised in terms of the level of benefits, there remains a risk of social tourism, ie moving to a Member State with a more congenial social security environment.”
And (at paragraph 70):
“The basic principle of Community law is that persons who depend on social assistance will be taken care of in their own Member State.”
The present appeal is concerned with the extent to which Articles 12 and 18, as interpreted by the Court of Justice, may depart from that principle. Indeed, Trojani itself lies at the heart of Miss Lieven's submissions.
The facts
The appellant came to this country as a student in April 2002. She later worked as a kitchen assistant in a nursing home on a part-time basis from 17 June 2003 until 30 April 2004 and on a full-time basis from 1 May 2004 until 31 July 200She was on maternity leave from 1 August 2004 until 26 February 2005. She gave birth to a daughter on 5 October 200Although it had been her intention to return to work the child's health was not good and the appellant could not afford a childminder. On 26 May 2005 she applied for income support. Her application was rejected but she appealed successfully to the Independent Appeal Tribunal. This prompted the Secretary of State to appeal to the Social Security Commissioner who allowed the appeal, paving the way for the present appeal to this Court. To complete the factual background: the appellant began to seek employment again in September 2006 and she has been in employment since October 2006. Accordingly, the claim for income support relates to the period from May 2005 until October 2006.
The domestic legislation
I do not propose to dwell on this in view of the common ground that, under it, the appellant was not entitled to income support at the material time. The provisions are labyrinthine but, to cut a convoluted story short, she was a “person from abroad” pursuant to paragraph 17 of Schedule 7 to the Income Support (General) Regulations 1987 and, although her presence in this country was lawful – unless and until removal pursuant to regulation 21(3) of the Immigration (European Economic Area) Regulations 2000 – she did not enjoy the right to reside here at the material time because she was not a “qualified person” as defined by regulation 5 of the 2000 Regulations. To be qualified, she would have had to be, for example, a worker, a self-employed person, a self-sufficient person or a student at the material time and she was not. In short, her lack of a right to reside (which is not the same as lawful presence) disqualified her from access to income support. Essentially, domestic legislation confined qualification to EEA nationals who are economically or educationally active or otherwise self-sufficient. Those who do not qualify are able to remain here lawfully but subject to removal. A more comprehensive tour of the labyrinth can be found in Abdirahman.
Articles 12 and 18
The relevant provisions of the Treaty are in the following terms:
“Article 12
Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
Article 18
1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect …”
The appellant's case in a nutshell
Miss Lieven emphasises Article 12. Her submission is that a person with the employment record of the appellant, whilst economically inactive at the time of her claim for income support, is nevertheless eligible. She relies on a passage in the judgment of the Court of Justice in Trojani (at paragraph 43):
“… with regard to [certain social security benefits], a citizen of the Union who is not economically active may rely on Article 12 EC where he has been lawfully resident in the host Member State for a certain time or possesses a residence permit …”
The contention is that the appellant had been lawfully resident in this country for three years at the time of her claim; that for the majority of that time she had been active as a student or an employee; and that she had demonstrated the sort of social integration that the Court of Justice had in mind when propounding a test of lawful residence “for a certain time”.
As regards Article 18, Miss Lieven seeks to invoke the approach adopted by the Court of Justice in Baumbast v Secretary of State for the Home Department [2002] ECR 1–7091 where it said (at paragraph 94):
“A citizen of the European Union who no longer enjoys a right of residence as a migrant worker in the host Member State can, as a citizen of the Union, enjoy there a right of residence by direct application of Article 18(1) EC. The exercise of that right is subject to the limitations and conditions referred to in that provision, but the competent authorities and, where necessary, the national courts must ensure that those limitations and conditions are applied in compliance with the general principles of Community Law and, in particular, the principle of proportionality.”
In essence, the case for the appellant is that it is disproportionate to deny a right of residence, and thereby entitlement to income support, to a person who is lawfully resident and as substantially settled as the appellant.
Abdirahman v Secretary of State for Work and Pensions
The appellants in Abdirahman were economically inactive EEA nationals who were lawfully present in the United Kingdom and who sought to access various social security benefits by reference to Article 12 and Article 18. Unlike the appellant in the present case, they could not point to a background of study and work in this country.
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