Mirga v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Reed,Lord Clarke,Lady Hale,Lord Kerr,Lord Neuberger |
| Judgment Date | 27 January 2016 |
| Neutral Citation | [2016] UKSC 1 |
| Date | 27 January 2016 |
| Court | Supreme Court |
[2016] UKSC 1
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Clarke
Lord Reed
Appellant (Mirga)
Richard Drabble QC
Zoe Leventhal
(Instructed by Public Law Project)
Appellant (Samin)
Richard Drabble QC
David Carter
David Cowan
(Instructed by Miles and Partners LLP)
Respondent (SSWP) Jason Coppel QC
Amy Rogers
(Instructed by The Government Legal Department)
Respondent (Westminster CC)
Ian Peacock
(Instructed by Westminster City Council Legal Services)
Intervener (Secretary of State for Communities and Local Government)
Jason Coppel QC
Amy Rogers
(Instructed by The Government Legal Department)
Intervener (The AIRE Centre)
Marie Demetriou QC
Charles Banner
Jennifer MacLeod
Matthew Moriarty
(Instructed by Ashurst LLP)
Heard on 9 and 10 March 2015
(with whom Lady Hale, Lord Kerr, Lord Clarke and Lord Reed agree)
These appeals are brought by a Polish national, Roksana Mirga, and an Austrian national, Wadi Samin, against decisions of the Court of Appeal upholding determinations that they were not entitled to certain benefits, namely income support and housing assistance respectively, pursuant to the provisions of United Kingdom domestic law. The arguments have changed somewhat over the course of the two sets of proceedings, but the essential issue raised now is whether the provisions and the current implementation of the domestic law in question infringe the rights of residence in the UK of citizens of European Union member states.
Shortly before this judgment was to be delivered, counsel for the appellants informed us of an Opinion which had been delivered by Advocate General Wathelet in Jobcenter Berlin Neukölln v Alimanovic ( Case C-67/14) [2016] 2 WLR 208, which they contended assisted their arguments. We decided to await the judgment of the Court of Justice in that case. Judgment was given on 15 September 2015, and the parties have had the opportunity to make written submissions as to its effect on these appeals.
It should perhaps be added that, after we received those further submissions, the appellants' counsel drew to our attention Advocate General Cruz Villalón's Opinion in European Commission v United Kingdom ( Case C-308/14), and suggested that we await the judgment of the Court of Justice in that case, or alternatively that we refer these two cases to that court. In my opinion, following the judgment in Alimanovic, any issue on which we have to rule in these appeals is acte éclaré, and accordingly we should now determine these two appeals.
Ms Mirga was born in 1988 in Poland. In 1998, she came to this country with her parents and three siblings, but they returned to Poland in 2002 after being refused asylum. Two years later, in June 2004, on Poland's accession to the EU, the family returned to the UK. Sadly, her mother died four months later, and her father, who had been working, gave up his job owing to depression a few months afterwards. He received income support until late 2007, when it was decided that he should not have been receiving it, on the ground that he did not have the right of residence in the UK.
Meanwhile, Ms Mirga finished her education in April 2005 and embarked on registered work within the meaning of the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219) ("the A8 Regulations"). She continued with that registered work until November 2005. In February 2006, she became pregnant and started to do unregistered work, which she continued for two months or so. In June 2006, she left home for rented accommodation, and did a month's further unregistered work around June 2006. In August 2006, she claimed income support under the Income Support (General) Regulations 1987 (SI 1987/1967) ("the Income Support Regulations") on the grounds of her pregnancy. Her baby son was born in October 2006.
The Secretary of State for Work and Pensions refused Ms Mirga's application for income support, and his decision was upheld by the First-tier Tribunal, whose decision was affirmed, albeit for different reasons, by Judge Rowland in the Upper Tribunal. The Upper Tribunal decided that the Secretary of State was entitled to refuse Ms Mirga's application because she did not have a right of residence in the UK under the A8 Regulations and therefore was excluded from the ambit of income support by virtue of the Income Support Regulations. The Upper Tribunal's decision was upheld by the Court of Appeal in a judgment given by Laws LJ, with which Tomlinson LJ and Sir David Keene agreed— [2012] EWCA Civ 1952.
Mr Samin was born in Iraq in 1960. After ten years military service, he successfully sought asylum in Austria in 1992, together with his wife and children, and he was accorded Austrian citizenship the following year. Sadly, he became wholly estranged from his wife and children, and he came to the UK in December 2005, since when he has lived in this country on his own. During the ten months following his entry into the UK, he had some paid employment on occasions, often part-time, but he has not worked since some time in 2006, and has not been looking for work since 2007.
Mr Samin is socially isolated and suffers from poor mental health, principally from clinical depression and post-traumatic stress disorder. Having attempted to kill himself in the past, he remains a moderately high risk of suicide in the medium term. He also suffers from diabetes, hypertension and kidney stones, and he needs physiotherapy.
After occupying temporary accommodation, Mr Samin lived in a studio flat in North London, which he had to vacate after four years in June 2010. He then applied to Westminster City Council ("the Council") for housing under the homelessness provisions in Part VII of the Housing Act 1996 ("the Housing Act"). After making inquiries, the Council decided that he was "a person from abroad who is not eligible for housing assistance" within the meaning of section 185(1) of the Housing Act, because he did not have the right of residence in the UK under the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) ("the EEA Regulations"). That decision was affirmed in the Central London County Court by His Honour Judge Mitchell, whose decision was in turn upheld by the Court of Appeal for reasons given by Hughes LJ, with which Etherton and Tomlinson LJJ agreed— [2012] EWCA Civ 1468; [2012] WLR(D) 336.
Under article 18 of the Treaty on the Functioning of the European Union ("TFEU"), "any discrimination on grounds of nationality" is "prohibited" in so far as it is "[w]ithin the scope of application of the Treaties". The importance of avoiding discrimination is emphasised by article 19 of TFEU which states that the Council "may take appropriate action to combat discrimination …".
Article 20 of TFEU states in para 1 that every national of an EU member state "shall be a citizen of the Union", and, in para 2(a), that citizens of the Union should have "the right to move and reside freely within the territory of the member states", albeit that that right is to be "exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder".
Article 21.1 of TFEU provides as follows:
"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 the Treaties and in the measures adopted to give them effect."
Article 45 of TFEU, which is also concerned with freedom of movement for workers, requires "the abolition of any discrimination based on nationality between workers of the member states as regards employment, remuneration and other conditions of work and employment".
In 2004, ten countries, including Poland, acceded to the EU pursuant to the Treaty on Accession 2003 ("the 2003 Accession Treaty"). By virtue of articles 10 and 24 of the Act of Accession forming the second part of the Treaty, existing member states, including the UK, were accorded, by way of derogation, certain transitional powers. Those powers included a right to derogate in relation to the free movement of workers within the EU, which was then governed by Regulation (EEC) No 1612/68 ("the 1968 Regulation"), in relation to nationals (known as "A8 nationals") of eight of the ten new member states. Those powers of derogation in relation to Polish nationals were contained in paragraphs 1–14 of Part 2 of Annex 12 to the 2003 Accession Treaty. So long as these provisions were in force, they enabled a host member state to exclude Polish nationals from freedom of movement rights unless they had been working in that state for "an uninterrupted period of 12 months" following accession.
The right of EU nationals to reside in all member states of the EU has been qualified and regulated by EU Instruments, most notably by the 1968 Regulation and by Directive 2004/38/EC of 30 April 2004 ("the 2004 Directive"), which made substantial amendments to the 1968 Regulation. The 2004 Directive is concerned with "the right of citizens of the Union and their family members to move and reside freely within the territory of the member states".
The preamble to the 2004 Directive includes the following:
"(10) Persons exercising their right of residence should not … become an unreasonable burden on the social assistance system of the host member state during an...
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