Mirga and Samin v Secretary of State for Work and Pensions & Anor [2016] UKSC 1

A Polish national and an Austrian national, both EU citizens lacking worker status, were refused income support and housing assistance respectively in the UK. The Supreme Court dismissed their appeals, holding that EU law permits exclusion of economically inactive EU nationals from social assistance.

Facts

Two appeals were heard together concerning the entitlement of EU nationals to UK social assistance.

Ms Mirga

Ms Mirga, a Polish national, came to the UK with her family in 2004 following Poland’s EU accession. She undertook registered work under the Accession (Immigration and Worker Registration) Regulations 2004 (the A8 Regulations) from April to November 2005, followed by brief unregistered work. She became pregnant in February 2006 and claimed income support in August 2006. Her claim was refused on the basis that she had not completed 12 months of continuous registered employment and therefore had no right of residence as a ‘worker’.

Mr Samin

Mr Samin, an Austrian national originally from Iraq, came to the UK in 2005. He undertook some part-time work in 2006 but had not worked since, suffering from clinical depression, post-traumatic stress disorder, and other health conditions. In 2010, he applied to Westminster City Council for housing assistance under Part VII of the Housing Act 1996. The Council refused, finding he was not a ‘qualified person’ under the Immigration (European Economic Area) Regulations 2006 because he was permanently incapable of work and had not worked for 12 months.

Issues

The Supreme Court had to determine:

• Whether the domestic regulations restricting access to income support and housing assistance for EU nationals without a right of residence infringed rights conferred by the Treaty on the Functioning of the European Union (TFEU), particularly articles 18, 20 and 21.
• Whether the refusal of social assistance required an individualised proportionality assessment, including consideration of whether granting assistance would impose an unreasonable burden on the UK’s social assistance system.

Arguments

Appellants

Mr Drabble QC argued for Ms Mirga that her right of residence under article 21.1 TFEU could not be cut back by the Income Support Regulations, and alternatively that any refusal required a proportionality assessment focused on whether granting assistance would impose an unreasonable burden. For Mr Samin, it was argued that refusal of housing assistance constituted unlawful discrimination contrary to article 18 TFEU, and that a proportionality assessment was required.

Respondents

The Secretary of State and Westminster City Council contended that neither appellant qualified as a ‘worker’ or otherwise as a ‘qualified person’ under the EEA Regulations, that neither was ‘self-sufficient’ (lacking resources and comprehensive sickness insurance), and that the domestic regime correctly implemented Directive 2004/38/EC (the 2004 Directive).

Judgment

Lord Neuberger, delivering the unanimous judgment, dismissed both appeals.

Issue One: Infringement of TFEU Rights

The Court held that the right under article 21.1 TFEU is expressly qualified by limitations and conditions in the Treaties and secondary measures, including the 2004 Directive and the 2003 Accession Treaty. Recital 10 of the Directive makes clear that EU nationals should not become an unreasonable burden on the social assistance system of the host member state, and article 7 limits the right of residence beyond three months to workers, self-employed persons, students, or those with sufficient resources and sickness insurance.

Ms Mirga could not claim to be a ‘worker’ as she had not completed 12 months of registered work, nor was she a jobseeker, self-employed, a student, or self-sufficient. Mr Samin similarly failed to qualify, having no right of residence and being permanently incapable of work.

The Court considered the issue acte éclairé following the Grand Chamber decisions in Dano v Jobcenter Leipzig (C-333/13) and Jobcenter Berlin Neukölln v Alimanovic (C-67/14). These authorities establish that a Union citizen can claim equal treatment with nationals of a host member state, at least regarding social assistance, only if their residence complies with the conditions of the 2004 Directive. Article 24.2 of the Directive constitutes a valid exception to the non-discrimination principle.

Issue Two: Proportionality

The Court rejected the argument that an individualised proportionality assessment was required in each case. Baumbast v Secretary of State for the Home Department (C-413/99) was distinguished: Mr Baumbast had sufficient resources, had not sought social assistance, had worked and resided in the UK for several years, and only marginally failed the self-sufficiency requirement regarding comprehensive sickness insurance.

Although Pensionsversicherungsanstalt v Brey (C-140/12) suggested that domestic legislation could not automatically bar non-nationals from social benefits without considering individual circumstances, the Grand Chamber in Alimanovic clarified that no individual assessment is necessary in circumstances such as those before the Court. The Directive itself, by establishing a graduated system regarding worker status, already takes into account the relevant factors and ensures legal certainty and transparency consistent with proportionality.

Lord Neuberger considered it unrealistic to require individual examination in every case, observing that this would severely undermine the Directive’s purpose and place a substantial burden on host member states. Even if exceptional cases existed where proportionality could be invoked, neither appellant could satisfy that threshold: both sought social assistance, neither had significant means or sickness insurance, and neither had worked for sustained periods in the UK.

Implications

The decision confirms that EU nationals who are economically inactive, not self-sufficient, and lack comprehensive sickness insurance, may lawfully be excluded from social assistance in a host member state without breaching TFEU rights of free movement or non-discrimination. The judgment endorses the position established by the Court of Justice in Dano and Alimanovic that the 2004 Directive’s graduated framework itself embodies proportionality, removing the need for case-by-case individual assessments.

This is significant for welfare authorities and local housing authorities, who are not generally required to undertake individualised proportionality assessments before refusing social assistance or housing to EU nationals lacking a right of residence. The Court left open the possibility of an exceptional category of cases in which proportionality might be relevant, but the bar appears high: such cases would likely require strong links to the host state, only marginal failure to meet residence requirements, and circumstances in which social assistance is not the primary objective.

The judgment reinforces the principle, expressed by the Grand Chamber in Dano, that the Directive aims to prevent economically inactive Union citizens from using the host member state’s welfare system to fund their subsistence. While the Court acknowledged sympathy for the appellants’ positions, the legal framework did not permit relief. The decision is important in delineating the boundary between EU citizenship rights and member states’ competence to protect the integrity of their social assistance systems.

Verdict: Both appeals dismissed. The Supreme Court held that the refusal of income support to Ms Mirga and housing assistance to Mr Samin did not infringe their rights as EU citizens under the TFEU, and that no individualised proportionality assessment was required.

Source: Mirga and Samin v Secretary of State for Work and Pensions & Anor [2016] UKSC 1